Edited by Vitalba Passarelli, Giovanni Marra and Fabrizia Portaro
Last August 10, 2023, it was published in the Official Gazette. n.186 the Decree-Law n.104/2023 (so-called Asset Decree) containing “Urgent provisions to protect users, regarding economic and financial activities and strategic investments”, in force starting from the following day. Among the other changes introduced by the Asset Decree, there is the extension of the surveillance period envisaged for large companies that benefit from state aids for productive investments.
Specifically, the Legislative Decree n.124/2023 intervenes on the art. 5, paragraph 1, of the Decree-Law of 12 July 2018, n.87, converted, with amendments, by law 9 August 2018, n.96 (in Official Gazette 11/08/2018, n. 186), which provides that “Without prejudice to the constraints deriving from international treaties, Italian and foreign companies, operating in the national territory, which have benefited from state aids which provide for the carrying out of productive investments for the purposes of attributing the benefit, forfeit the benefit itself if the economic activity affected by it or part of it is relocated to states not belonging to the European Union, with the exception of states belonging to the European Economic Area, within five years from the date of conclusion of the facilitated initiative. In case of forfeiture, the administration in charge of the aid measure, even if without peripheral articulations, ascertains and imposes, in accordance with the provisions of law 24 November 1981, n. 689, a pecuniary administrative sanction consisting in the payment of a sum equal to two to four times the amount of the aid received“.
Art. 8 of the Asset Decree, to strengthen measures to combat delocalization, provides that the 5-year limitation period, indicated in the regulation, be raised to ten years for large companies, identified pursuant to Recommendation no. 2003/361/EC of the Commission, of 6 May 2003, published in the Official Journal of the European Union no. L 124/36 of 20 May 2003.
In this regard, please note that the community definition of “large enterprise” refers to companies which, at a consolidated level, exceed the thresholds required to be classified as SMEs and which, therefore, fall within, looking at the last two approved financial statements, in the following parameters:
- employ more than 250 employees;
- have an annual turnover that exceeds 50 million euros; or
- have balance sheet assets exceeding 43 million euros.
Nothing changes, however, for SMEs, whose surveillance period for which state aids were granted remains five years from the date of conclusion of the subsidized initiative.
Unlike Legislative Decree no. 87/2018 (art. 5, paragraph 4) did not provide for the applicability of the rule to benefits already granted or for which notices had already been published, as well as to investments that had already been started on that date, the new provision does not provide for a specific starting date; therefore, it remains to be clarified whether the amendment introduced applies only to investments made starting from the entry into force of the Legislative Decree. n.104/2023 (11 August 2023) or even the previous ones, whose five-year term is still ongoing.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti