Edited by Vitalba Passarelli, Giovanni Marra, and Alessandro Sinopoli
With judgment no. 15039 of July 29, 2025, the Lazio Regional Administrative Court (Third Section, President F. Bruno, Rapporteur L. Conti) upheld the appeal lodged by a company, annulling the measure by which the Ministry of Enterprises and Made in Italy (MIMIT) had denied the certification provided for under Art. 23 of Decree Law 73/2022 in relation to the R&D tax credit applicable in the tax years 2017–2019.
The decision represents a clear stance against the attempted retroactive application of the Frascati Manual, an OECD document often referred to for the qualification of R&D activities eligible under national legislation for tax credit purposes but not provided for by the legislation in force during the period 2015–2019.
The regulatory framework
The R&D tax credit was introduced by Art. 3 of Decree Law 145/2013 as an incentive measure to stimulate innovation. Over time, the definition of “research and development activities” has generated interpretative uncertainties, particularly concerning the identification of the qualifying criteria: novelty, creativity, uncertainty, systematic approach, and transferability/reproducibility.
In 2024, MIMIT adopted new guidelines based on the 2015 edition of the Frascati Manual, indicating it as a technical tool for the evaluation of eligible activities. However, the Court clarified that such criteria cannot be applied retroactively to assess projects carried out in the years 2015–2019, since the innovative interpretation adopted first by MIMIT and later by the Revenue Agency was formally incorporated into law only through Art. 1, paragraph 200, of Law No. 160 of December 27, 2019.
The core of the matter, as emphasized in the judgment, lies in the hierarchy of legal sources and in the constitutional principle of tax legality. While Law 160/2019 expressly introduced a reference to OECD Manuals (Frascati and Oslo) for the new tax credit regime applicable from 2020 onward, under the old regime of Decree Law 145/2013 such reference was not provided.
EU Communications and the limits of ministerial interpretation
In an attempt to fill this gap, the Administration referred to the European Commission’s 2006 and 2014 Communications, arguing that these could justify an extensive interpretation of the rules. However, the Court rejected this reasoning for two main reasons.
On the one hand, Communication 198 of 2014 refers to the 2002 version of the Frascati Manual, not the updated 2015 version, and adopts a broader and more flexible notion of research and development, limited to the pursuit of technical improvements in products or processes.
On the other hand, those Communications concern only selective State aid, which requires prior notification to the Commission, and do not apply to general measures such as the R&D tax credit under Decree Law 145/2013. Consequently, reference to EU Communications could not legitimize the retroactive application of the 2015 Frascati Manual.
The Court’s decision: no retroactivity for the Frascati Manual
The Court first addressed the issue of jurisdiction, affirming its competence to rule on the appeal against the ministerial denial. The challenged measure, explained the panel, is not an internal technical opinion but a harmful administrative act, subject to appeal before the administrative judge.
On the merits, the Court censured MIMIT’s conduct for basing the rejection solely on a technical assessment carried out by a review committee, which mechanically applied the 2015 Frascati Manual, contrary to the principle of non-retroactivity.
The panel stated: “The Frascati Manual constitutes a document of international practice, devoid of binding legal force. The application of its criteria to tax periods prior to its official introduction, which occurred with the 2024 MIMIT Guidelines, is inadmissible.”
The judgment emphasized that in the period 2015–2019 there was no obligation to comply with the Frascati Manual to benefit from the R&D tax credit. It follows that the appealing company cannot be penalized for failing to meet parameters not provided for by the law in force at the time of the incentivized activities.
The Lazio Court’s decision fits within an already established body of case law. Numerous tax commissions have excluded the retroactive application of the Frascati criteria: from the Tax Court of First Instance of Aosta (2022) to the Regional Tax Courts of Palermo, Cosenza, and Lecce (2023–2024), up to the more recent 2025 decisions in Bologna, Brescia, Naples, Oristano, and Vicenza.
This line of jurisprudence therefore reinforces the interpretation that the retroactivity of OECD criteria violates the principles of legality and legal certainty, both in recovery proceedings by the Revenue Agency and in ministerial decisions denying technical certification under Art. 23 of Decree Law 73/2022.
The role of technical certification and the protection of legitimate expectations
Although the Court did not address the technical merits of the project presented, it reiterated that certification under Art. 23 of Decree Law 73/2022 is not subject to the retroactive application of new technical criteria but must be based on the law in force at the time the credit was used.
The panel also stated that MIMIT’s rejection suffered from a defect in investigation: the technical characteristics of the project were not considered, nor was the body of documentation produced by the company evaluated.
The Ministry limited itself to a formal assessment using subsequent parameters, ignoring the principle of protection of legitimate expectations and the required proportionality in administrative action.
Operational impact for companies and certifiers
The judgment has significant operational effects. Certifiers registered in the ministerial roll (established by the September 2023 Decree of the President of the Council of Ministers) will be called upon to review their evaluation methodologies, clearly distinguishing between projects developed before 2020 – to be assessed considering Decree Law 145/2013 – and those afterward, to which the regime of Law 160/2019 applies, explicitly incorporating reference to OECD manuals.
It is therefore highly desirable that this ruling take on relevance also in the context of tax audits and disputes, offering a solid legal basis for both taxpayers and the tax administration.
However, one essential point remains: the Court’s decision cannot be understood as an indiscriminate legitimization of all reported activities. For the period 2015–2019 it has generally emerged that several projects lack real technical content or are supported by inadequate or even non-existent documentation. In such circumstances, MIMIT retains full legitimacy to deny access to the benefit, regardless of reference to OECD criteria.
The reference to the Oslo Manual, which defines activities qualifying as “technological innovation,” distinct from R&D, and characterized by a more flexible approach compared to the Frascati Manual, rather shows that some activities may nonetheless fall within the scope of eligibility, but always through a rigorous substantive evaluation.
Conclusion
Judgment no. 15039/2025 therefore fits into the broader litigation concerning the R&D tax credit, setting an important precedent: the impossibility of retroactively extending technical standards and evaluation criteria not provided for by the legislation applicable at the time in 2015–2019.
The Lazio Court reaffirms the principle that the legitimacy of companies’ conduct must be assessed according to the regulatory framework in force at the time of the facts, and not considering practices introduced subsequently. A decision that strengthens legal certainty and enhances the certifying and guarantor function provided by Art. 23 of Decree Law 73/2022.
Moreover, the ruling reinforces the principles of legality, legal certainty, and protection of legitimate expectations, while at the same time stressing the need for a serious and thorough evaluation of projects.
Regulatory innovation must follow constitutionally compatible paths, without interpretative shortcuts; and fiscal incentives for R&D, to maintain their role of stimulating innovation, must be based on authentic, documented, and technically sound projects.
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