La disciplina delle «società di comodo» tra profili limitativi dei fenomeni elusivi ed effettiva garanzia all’esercizio della libertà di stabilimento. Spunti di riflessione derivanti dall’azione di «armonizzazione negativa» della giurisprudenza comunitaria (Corte di Giustizia UE, Sez. VIII, Sentenza del 6 ottobre 2022, cause riunite C-433-21 e C-434-21)

The ECJ has recently dealt with the Italian shell companies’ regulation in the light of the actual enjoyment of the freedom of establishment as enshrined in Art 49, TFEU by companies and entities established in different EU Member States. In more detail, the case ECJ, Sez. VIII, 6th October 2022, joined cases c-433/21 and c-434/21, Agenzia delle Entrate vs Contship Italia SpA is mainly concerned with the hypothetical extension of the legal framework providing for specific cases in order to set aside the enforcement of shell companies’ regime, ratione temporis applicable, not only with regard to companies and entities whose shares are negotiated in the Italian stock exchange, but also to those companies and entities (and their relative subsidiaries) whose shares are negotiated even in foreign stock exchanges. Nevertheless, the ECJ holds that it does not exist any kind of difference in treatment between a company controlled by a holding listed on the stock exchange of another EU Member State, and the same company controlled by a holding listed on the Italian stock exchange. Indeed, the relevant shell companies’ regulation in force in Italy required that the «target-company» is listed on the Italian stock exchange in order to be eligible to fill in the conditions established by law to avoid the application of the penalising shell companies’ regime for tax purposes. Hence, for these reasons, it is not relevant whether an entity is controlled by a holding listed or not on the Italian stock exchange and, as a result, it does not lead to any sort of difference in treatment susceptible to constitute a violation of the EU freedom of establishment as of Art 49, TFEU.