JUDGMENT NO. 135

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI,
has delivered the following

JUDGMENT

in proceedings concerning the constitutional legitimacy of Article 37 of Decree-Law No. 21 of March 21, 2022 (Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis), converted, with amendments, into Law No. 51 of May 20, 2022, as amended by Article 55 of Decree-Law No. 50 of May 17, 2022 (Urgent measures regarding national energy policies, business productivity and investment attraction, as well as social policies and the Ukrainian crisis), converted, with amendments, into Law No. 91 of July 15, 2022, and subsequently amended by Article 1, paragraph 120, letters a), b), and c), of Law No. 197 of December 29, 2022 (State forecast budget for the financial year 2023 and multi-year budget for the 2023-2025 three-year period), brought by the Court of Tax Adjudication of First Instance of Rome, Section 27, in the proceedings pending between Eni Global Energy Markets spa and the Italian Revenue Agency, by order of May 20, 2025, registered under No. 151 of the 2025 order register and published in the Official Journal of the Republic No. 36, 1st special series, for the year 2025.

Having regard to the appearance in court of Eni Global Energy Markets spa and the intervention of the President of the Council of Ministers;

having heard Judge Rapporteur Luca Antonini at the public hearing of May 19, 2026;

having heard counsel Livia Salvini and Davide De Girolamo for Eni Global Energy Markets spa, as well as State Attorney Mattia Cherubini for the President of the Council of Ministers;

having deliberated in the council chamber on May 19, 2026.

The Facts in Brief

1.‒ By an order dated May 20, 2025 (registered under No. 151 of the 2025 order register), the Court of Tax Adjudication of First Instance of Rome, Section 27 (CGT of Rome), raised questions concerning the constitutional legitimacy of Article 37 of Decree-Law No. 21 of March 21, 2022 (Urgent measures to counter the economic and humanitarian effects of energy and the Ukrainian crisis), converted, with amendments, into Law No. 51 of May 20, 2022, as amended by Article 55 of Decree-Law No. 50 of May 17, 2022 (Urgent measures regarding national energy policies, business productivity and investment attraction, as well as social policies and the Ukrainian crisis), converted, with amendments, into Law No. 91 of July 15, 2022, and subsequently amended by Article 1, paragraph 120, letters a), b), and c), of Law No. 197 of December 29, 2022 (State forecast budget for the financial year 2023 and multi-year budget for the 2023-2025 three-year period), with reference to Articles 3, 42, 53, and 117 (correctly: Article 117, first paragraph) of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights.

The referring judge premises that the main proceedings concern the implied refusal (silenzio-rifiuto) of the Italian Revenue Agency regarding the request filed by Eni Global Energy Markets spa for the reimbursement of the sum of €203,113,131.24 paid by the latter on June 30, 2022, as an advance payment of the extraordinary contribution governed by Article 37 of Decree-Law No. 21 of 2022, as converted and subsequently amended.

The court highlights that, by an order dated May 3, 2023 [June 27, 2023], it raised questions of constitutional legitimacy concerning the same provision for violation of Articles 3, 23, 42, 53, and 117 of the Constitution and, indirectly, of Article 1 of Additional Protocol 1 to the ECHR, and that this Court, by Judgment No. 111 of 2024, while declaring them inadmissible due to the omission of the reconstruction of the regulatory framework, nevertheless ruled on the questions raised by the Court of Tax Adjudication of First Instance of Milan, declaring the constitutional illegitimacy of the challenged provision to the extent that it provides that «[f]or the calculation of the balance referred to in paragraph 2, the total of active operations shall be taken, net of [value added tax (VAT)],», instead of «[f]or the calculation of the balance referred to in paragraph 2, the total of active operations shall be taken, net of VAT and excise duties paid to the State and indicated in the outgoing invoices,».

2.‒ Having stated the above, the CGT of Rome maintains that the challenged provision conflicts with Articles 3, 42, 53, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of Additional Protocol 1 to the ECHR.

2.1.‒ Regarding relevance, the referring judge observes that Article 37 of Decree-Law No. 21 of 2022, as converted and subsequently amended, «even solely with reference to the specific methods of calculating the tax base for an economic entity which, like the applicant, operates through permanent establishments located abroad and effectively commenced its business activity only on January 1, 2021, prevents the requested reimbursement».

2.2.‒ As to the merits, according to the referring court, the challenged provision firstly conflicts with Articles 53, 42, and 117, first paragraph, of the Constitution, and, indirectly, with Article 1 of Additional Protocol 1 to the ECHR, inasmuch as it produces confiscatory-expropriatory effects against the company.

It further specifies that the solution adopted with Judgment No. 111 of 2024 was «tailored» to that incidental proceeding of constitutional legitimacy, resulting in the «need to re-propose the question […], this time with reference to the specific situation of the company» acting as applicant in the main proceedings.

The CGT of Rome highlights, in particular, that in the present case the fulfillment of the obligation to pay the extraordinary contribution, which amounts to a total of €507,782,828.10 and whose 40 percent advance payment, equal to €203,113,131.24, is the subject of the reimbursement claim at issue, would have ultimately eroded the entirety of the company's net equity, as resulting from the last closed financial year (2021), equal to €300,448,150.00, to such an extent that a recapitalization would have been necessary in order to avoid incurring the consequences referred to in Article 2447 of the Civil Code.

Moreover, even having regard to income, the payment of the extraordinary contribution would have eroded all the profits of 2022, as resulting from the company's balance sheet for that same year.

The referring court therefore deems the challenged extraordinary contribution unreasonable because such significant levels of taxation would be capable of encroaching upon the «vital minimum», causing the «economic death» of the company and resulting in an unfair and disproportionate deprivation of its assets.

2.3.‒ In close connection with the confiscatory-expropriatory effect of the extraordinary contribution, the CGT of Rome also alleges the violation of Article 42 of the Constitution.

It observes that «if a levy has the effect of totally ablating the assets of the subject concerned, it [would] no longer [be] a tax», since, by transcending the limits of Article 53 of the Constitution, it would have lost its nature of a fiscal burden and instead assumed the characteristics of a different patrimonial performance devoid of cause, thereby conflicting with Article 42 of the Constitution.

2.4.‒ In view of the unjustified limitation of the right of property, there would also be a violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of Additional Protocol 1 to the ECHR.

The referring judge recalls the judgments of the European Court of Human Rights of May 14, 2013, N.K.M. v. Hungary, and December 7, 2023, Waldner v. France, which, while recognizing the full discretion of States in imposing fiscal measures, emphasized the need for a review of the proportionality of tax measures in order to verify their «"reasonable foundation”, such as to ensure a fair balance between the demands of the general interest and the requirements of the protection of the individual's fundamental rights».

3.‒ A further aspect of the violation of Articles 3 and 53 of the Constitution is raised by the referring judge by pointing to the fact that the challenged provision has a retroactive effect.

Indeed, the extraordinary contribution takes as taxable wealth a differential calculated on the value added tax (VAT) turnover relating to the period October 2021-April 2022 (compared with the preceding period October 2020-April 2021) and, since it entered into force on March 22, 2022, with Decree-Law No. 21 of 2022, as converted and subsequently amended, it burdens wealth that had formed previously.

4.‒ The referring court further considers that the challenged provision violates Articles 3 and 53 of the Constitution «to the extent that it does not allow the exclusion from taxation of the operations of foreign permanent establishments "attracted” into the periodic VAT settlements (LIPE) of the Italian parent company pursuant to Article 192-bis of [Council Directive 2006/112/EC of November 28, 2006, on the common system of value added tax] and Article 54 of [Council Implementing Regulation (EU) No. 282/2011 of March 15, 2011, laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (Regulation)]».

In this regard, it reports that the applicant in the main proceedings «operates through three permanent establishments abroad located in Belgium, the United Kingdom, and Singapore».

It then highlights that, as a result of the aforementioned EU provisions, if the parent company has its registered office in the place where VAT is due, the latter is required to centralize all obligations relating to operations with territorial relevance in Italy, even in cases where the operations are referable to activities carried out by its permanent establishments located in the territory of other countries.

In particular, this regime entails that the outgoing operations of the permanent establishments of Eni Global Energy Markets spa, located in the United Kingdom, Belgium, and Singapore, carried out in Italy—where the parent company itself has its registered office—must be invoiced, recorded, and included in its own LIPE by the latter, «despite it having remained entirely extraneous to their execution».

The referring judge specifies, moreover, that the aforementioned derogation would operate solely and exclusively with reference to outgoing operations carried out by permanent establishments, so that the incoming turnover of the latter, remaining attributed exclusively to them, would not influence «in any way the registers and LIPE of the parent company».

The CGT of Rome therefore notes that, as a result of this framework, for the purpose of determining the tax base of the extraordinary contribution referred to in the challenged provision, on the one hand, the parent company would be required to consider outgoing invoices deriving from operations carried out by its permanent establishments; on the other hand, it could not count any incoming invoices referable to the activities carried out by the latter.

This would entail a distortive and unreasonable effect, since the tax base of the extraordinary contribution would thus be calculated having regard solely to the outgoing turnover of the permanent establishments and not also to the incoming turnover, thereby failing to «isolate that "super-profit” which the legislature intends ‒ implicitly but clearly ‒ to subject to taxation».

4.1.‒ Nor, the referring judge adds, would a constitutionally oriented interpretation of the challenged provision be possible, as suggested by the applicant in the main proceedings, to the effect that, for the calculation of the due contribution, all outgoing operations attracted by the parent company but peacefully referable to its foreign permanent establishments should be expunged, as this is precluded by the literal wording of the provision.

5.‒ Finally, according to the CGT of Rome, the challenged provision conflicts with Articles 3 and 53 of the Constitution because the calculation of the extraordinary contribution, based «on the comparison of the activities carried out in the period October 2021-April 2022 with those carried out in the period October 2020-April 2021», does not allow account to be taken of the fact that the company «substantially commenced its business activity only on January 1, 2021».

Indeed, the referring judge argues that, in order to avoid distortive effects and restore reasonableness to the challenged provision, the comparison should concern homogeneous periods, so that the first period should start from the moment the company «consequently commenced operations», correspondingly reducing the second reference time period.

6.‒ The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, asking that the questions be declared inadmissible or, in the alternative, unfounded.

6.1.‒ On preliminary matters, the State's defense objects to the inadmissibility of the questions concerning the confiscatory-expropriatory nature of the challenged provision due to generality and the omission of an assessment of the effects that would have been produced on the main proceedings following the aforementioned Judgment No. 111 of 2024, which declared the constitutional illegitimacy of the challenged provision to the extent that it provides for the inclusion, in the tax base of the extraordinary contribution, of excise duties paid to the State and indicated in outgoing invoices.

It highlights, in fact, that the referring court, in order to assess the potential confiscatory-expropriatory effect of the extraordinary contribution, should have recalculated the amount due, expunging from the calculation the portion that the company had paid as excise duties, with the consequence that the real impact of the tax on the company's accounting values is entirely indeterminate.

Furthermore, according to the intervener, the questions would be inadmissible because the referring court did not correctly cite the data utilized to highlight the confiscatory-expropriatory effect.

6.2.‒ According to the State Attorney General's Office, the question of constitutional legitimacy of the challenged provision concerning the case of territorially relevant operations carried out by foreign permanent establishments of a taxable person having its registered office in the Member State where VAT is due is also inadmissible due to an erroneous reconstruction of domestic and EU law.

The State's defense considers incorrect the interpretative premise from which the referring judge moves, according to which the combined provisions of Article 192-bis of Directive 2006/112/EC and Article 54 of Regulation (EU) No. 282/2011 would require the inclusion in the parent company's LIPE of territorially relevant outgoing VAT operations referable to its permanent establishments, while the same could not be said for the corresponding incoming VAT operations attributable to those same permanent establishments.

Indeed, the Attorney General's Office observes, a «plain literal interpretation» of the aforementioned EU provisions should lead to the conclusion that «the actual attribution of the outgoing operation consisting in the supply of goods or provision of services executed in another Member State where a "permanent establishment” of the supplying enterprise is present shall be attributable to that same permanent establishment only in the presence of an actual "participation” of the latter in the operation itself. Conversely, where the supplying enterprise has the seat of its economic activity in the territory of the other Member State, it shall exercise its vis attractiva with respect to all outgoing operations realized therein, regardless of a concrete ascertainment of the actual involvement of the means and personnel present "on site”».

In any event, the State's defense specifies, «the examined provisions presuppose[d] that [VAT] is due in a Member State other than that in which the registered office of the supplying enterprise is located», whereas «attribution or otherwise to the local "permanent establishment” serves to establish whether or not the [so-called] "reverse charge” regime must apply».

To clarify this argument, it adds that «where the imputability of the operation to the permanent establishment can be affirmed, the latter shall be responsible for fulfilling the obligations of invoicing and payment of [VAT] in the Member State in question, on behalf of the "parent” enterprise; conversely, where such imputability is denied, the aforementioned obligations shall weigh, precisely by virtue of the [so-called] "reverse charge”, on the transferee of the goods or the recipient of the services».

According to the State's defense, the case «of an outgoing operation territorially relevant in Italy but attributable, pursuant to the examined supranational provisions, to the foreign permanent establishment therefore does not appear plausible, at least in the terms indicated within the referral order».

6.3.‒ A further objection of inadmissibility concerns the alleged generality of the questions regarding the exact identification of the reference period for the purpose of calculating any upward variation in the balance between outgoing and incoming VAT operations resulting from periodic settlements.

Indeed, it considers that the referring court did not specify the objective criterion for identifying the moment at which a company can be considered effectively operational.

7.‒ On the merits, according to the State's defense, the questions are unfounded.

7.1.‒ With reference to the question concerning the confiscatory-expropriatory effect of the extraordinary contribution, it recalls Judgment No. 111 of 2024 of this Court, which «reiterated the inapplicability [of Article 42 of the Constitution] to obligations of a tax nature» and observes that the taxpayer's economic resources employed for the fulfillment of a tax «constitute[s] only the "means of fulfillment”, certainly not the object of the fulfilled obligation».

It therefore considers that, with respect to an imposed patrimonial performance of a tax nature, solely its reasonableness and proportionality in light of Articles 3 and 53 of the Constitution should be evaluated, aspects upon which Judgment No. 111 of 2024 has already ruled.

Nor would it be correct to consider that the unreasonableness and disproportion of the extraordinary contribution lie in the fact that the challenged provision does not provide for a "maximum threshold” of impact on the economic and patrimonial availabilities of the taxpayer.

Indeed, «any operation hypothetically aimed at identifying such a "maximum threshold” or "maximum rate” of impact on the taxed economic magnitude or on other economic magnitudes would prove to be entirely arbitrary», since it would be up solely to the «legislator, from time to time, [to] establish such a limit, in relation to the particular context in which the levy is inserted and the specific needs satisfied by it». Under this profile, even levies that impact to a significant extent may prove justified in particular historical contingencies, as in the present case, in which the extraordinary contribution is «aimed at responding to an entirely exceptional situation, the result of a particular economic conjuncture, such as to determine the "countercyclical trend” of certain categories of enterprises, not traceable to any specific merit of the latter».

7.2.‒ According to the State's defense, the question concerning the violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of Additional Protocol 1 to the ECHR is also unfounded, since the ECtHR has always recognized a wide margin of discretion to the legislatures of individual Member States, also regarding tax treatment, even if «particularly high».

8.‒ Furthermore, the additional question aimed at challenging the retroactivity of the extraordinary contribution is unfounded, because a provision that impacts a given economic index or value that has already arisen conflicts with Articles 3 and 53 of the Constitution only if that same index is no longer capable of expressing a «current contributory capacity», i.e., wealth or economic strength that is still detectable.

In the present case, the economic conjuncture that had determined the anomalous growth of electricity and energy product prices was «still ongoing» at the time of entry into force of the challenged provision.

9.‒ For the State's defense, the question concerning the case of territorially relevant operations carried out by foreign permanent establishments of a taxable person having its registered office in the Member State where the tax is due is also unfounded.

In this regard, it highlights that outgoing operations referable to foreign permanent establishments, «where they prove to be territorially non-taxable in Italy, pursuant to Articles 7 et seq. of Presidential Decree No. 633 of 1972, shall indeed be excluded from the tax base of the aforementioned "contribution”, provided that the corresponding incoming operations are also not territorially relevant in Italy».

10.‒ Finally, for the Attorney General's Office, the additional question concerning the failure to take into account, for the purpose of the potential emergence of a balance between outgoing and incoming VAT operations, the moment of actual operational activity by the taxable person is also unfounded.

It considers in this regard that the formal criterion of opening a VAT number would be the only one capable of anchoring the start of business activity to an objective temporal moment, whereas the substantive criterion, aimed at valuing the completion of outgoing or, possibly, incoming operations, «would suffer from [an] elimination-proof degree of arbitrariness».

11.‒ Eni Global Energy Markets spa appeared in the proceedings, requesting the acceptance of the questions of constitutional legitimacy raised by the CGT of Rome.

The company premises that it operates through three permanent establishments in Belgium, Great Britain, and Singapore, which carry out outgoing operations worldwide, including in Italy.

12.‒ Having stated this, it preliminarily observes that, in order to challenge the unreasonableness of a levy, reference should be made to the «economic reflection» that it produces on the taxpayer and, therefore, in order to carry out the review of constitutional legitimacy of the challenged provision, it is necessary to proceed to «a case-by-case examination, in relation to the position of the individual taxpayers concerned».

Following this perspective, it would emerge that the tax has a typically expropriatory content, all the company's magnitudes—both income and asset-based—having been totally eroded.

The party adds that the prohibition of expropriatory taxes also stems from an interpretation of Article 53 of the Constitution linked to the concept of the "vital minimum”, which postulates that the overall level of taxation should never compromise the means of subsistence of individual individuals for the satisfaction of primary existential needs.

In this sense, a tax that has the effect of causing, as in the present case, the "economic death” of an entity would not be respectful of Article 53 of the Constitution.

Moreover, the unreasonableness of the challenged provision would stem from the fact that the legislature did not provide for a maximum ceiling on taxation.

12.1.‒ Furthermore, with reference to the violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of Additional Protocol 1 to the ECHR, the company highlights that the ECtHR has frequently valued the protection of the right of property in tax matters, clarifying, in particular, that the exercise of the taxing power is legitimate only if it achieves a fair balance between the pursuit of the public interest and the need to protect the right of property, the legislature having to operate in compliance with the principle of proportionality between the means employed and the purposes pursued, which requires a concrete verification that the taxpayer is not subjected to an excessive and exorbitant sacrifice.

In the present case, this fair balance is absent, since the company suffered a «radical emptying of the content of the right of property».

12.2.‒ To these considerations, the party adds that the ECtHR has valued the unlawful "surprise” effect of fiscal measures introduced ex post, and observes that the challenged provision produces an unjustified retroactive effect, as it burdens wealth that would have eventually formed prior to its entry into force, thereby impacting the predictability of the levy, so that «enterprises found themselves completely unprepared to pay such a substantial amount, without being able to adapt their operations to the future disbursement through appropriate financial and economic provisioning plans».

13.‒ The company also argues on the question of constitutional legitimacy of the challenged provision under the profile of the violation of the principle of equality.

In this regard, it highlights that the extraordinary contribution, «precisely because it is devoid of rationality and proportionality», would impact more heavily on certain operators for reasons entirely "accidental” and unanchored from increases in wealth, thus discriminating against them compared to their competitors.

14.‒ Regarding, furthermore, the question of the unreasonableness of Article 37, paragraph 2, of Decree-Law No. 21 of 2022, as converted and subsequently amended, for having failed to take into account the possibility of reducing the time periods to be compared, it observes that the challenged provision identifies «punctually», «without providing for exceptions of any kind», the months that flow into the tax base of the extraordinary contribution.

For this reason, it highlights, a distortive effect would arise for those companies that commenced business during the first comparison period.

15.‒ Regarding the question concerning the application of the extraordinary contribution when supply operations were carried out in Italy by its permanent establishments located in other countries, it observes that, as a result of the VAT rules regarding the identification of the tax debtor, an attraction to the parent company of the outgoing operations carried out by its permanent establishments occurs. Consequently, for the purpose of calculating the tax base of the extraordinary contribution, the parent company's LIPE would include not only the outgoing invoices deriving from the activity carried out by itself, «but also many outgoing invoices attributable to the activity carried out by its foreign permanent establishments. These outgoing invoices therefore correspond to operations carried out by the permanent establishments, accounted for in accounting documents (the "income statements”) drawn up abroad by the establishments themselves and also subject to direct taxation abroad, in the respective countries where the three permanent establishments are located. Only for VAT purposes, such operations are included in [their own] LIPE».

In particular, it points out that «[t]he outgoing operations of foreign permanent establishments that were accounted for in the LIPE of the parent company Egem amount overall to 784 million in the period October 2020-April 2021 and to 4,853 million in the period October 2021-April 2022».

However, the company adds, this rule of attraction would operate only with reference to outgoing operations carried out by permanent establishments, and not to those received by them, and therefore, «[t]he incoming turnover of the permanent establishments […] does not influence in any way the registers and LIPE of the parent company, remaining attributed for all legal purposes to the» foreign "LIPE” of the permanent establishments.

An evident distortive effect would thus arise, since the outgoing turnover referable to foreign permanent establishments that influences the parent company's LIPE: a) would not be referable to the activity carried out by the latter, but to that of its permanent establishments located in other countries; b) would not be representative of an increase in the differential balance.

This would entail, according to the party, a direct repercussion on the coherence of the quantification of the tax base «which, if calculated having regard solely to the outgoing turnover of the permanent establishment and not to the incoming turnover, prove[s] to be entirely unsuitable to isolate that increase in wealth that the legislature intends to subject to taxation, understood as real enrichment dependent on the increase in energy prices».

16.‒ Eni Global Energy Markets spa filed a brief in which, preliminarily, it took note of Judgment No. 180 of 2025 of this Court, specifying that while it resolved the other questions of constitutional legitimacy raised by the CGT of Rome, it nevertheless did not examine the one raised for the first time, «relating to the irrationality of the Contribution to the extent that it also burdens outgoing operations attributable to foreign permanent establishments but invoiced by the Italian parent company in application of the relevant VAT legislation», which moreover had not been raised even in the proceedings that gave rise to Judgment No. 111 of 2024, «in which a first review of the Contribution is found».

It is therefore upon this that it focuses its defensive arguments.

17.‒ Firstly, the party replies to the objection of inadmissibility raised by the State Attorney General's Office concerning the non-applicability of the case within the scope of Article 54 of Regulation (EU) No. 282/2011, specifying its pertinence to the present case.

18.‒ As to the merits, the party reiterates that the attracted operations could not reflect an «enrichment of the parent company, but only that of the foreign permanent establishments» and, therefore, would not be representative of greater wealth.

Furthermore, the inclusion in the tax base of outgoing operations carried out by foreign permanent establishments, without the possibility of including the relative incoming operations, would entail that the levy would in no way be representative of an increase in the differential balance which, logically, should presuppose «a comparison between two correlated volumes (outgoing and incoming turnover)», notwithstanding that the outgoing turnover is not referable to the parent company, but to its permanent establishments.

It adds that the need for symmetry between outgoing and incoming operations, which must be indicated in the LIPE for the purpose of determining differential balances, was affirmed by this Court in Judgment No. 111 of 2024 to the extent that it declared the constitutional illegitimacy of the contribution to the extent that it does not exclude from its tax base the value of excise duties flowing into outgoing invoices.

Indeed, there are «significant analogies» between the case examined therein and the one examined here, since, in this case too, the attraction of the parent company would entail a «clear misalignment between the outgoing and incoming turnover of companies».

Further confirmation of the mandatory nature of symmetry between outgoing and incoming operations in the architecture of the extraordinary contribution can also be found in the provision of Article 37, paragraph 3-ter, of the challenged provision, according to which «[t]hose outgoing operations not subject to VAT due to the lack of a territorial prerequisite, pursuant to Articles 7 to 7-septies of Presidential Decree No. 633 of October 26, 1972, shall not contribute to the determination of the totals of outgoing operations referred to in paragraph 3, if and to the extent that the purchases related thereto are territorially non-relevant for VAT purposes».

Such provision, in fact, allows account to be taken of outgoing operations lacking the territoriality requirement solely on the condition that, symmetrically, there are incoming operations corresponding to those same operations.

18.1.‒ The party specifies that, in order to overcome the defect of symmetry, the interpretative option according to which «the costs pertaining to the outgoing operations of the foreign permanent establishments» should then be included in the parent company's LIPE could not be followed.

A first obstacle is identified in the fact that what would cause the unreasonableness of the tax base is «the very competition of foreign outgoing operations in themselves», as these are operations that «do not pertain to the activities of the parent company» but to those of its permanent establishments abroad.

Secondly, it highlights that the aforementioned Article 37, paragraph 3-ter, confirms that, when the necessary symmetry between outgoing and incoming operations cannot be found, the legislature's choice is directed towards the exclusion of the outgoing operation from taxation rather than the subjection to the same taxation of its related cost, since this would entail «a radical upheaval of the entire tax architecture for VAT purposes, even before that of the Contribution».

Finally, it observes that, since the outgoing operations attracted by the parent company are «peacefully the product of an activity carried out by permanent establishments abroad, it goes without saying that all costs pertaining to these operations are by definition extraneous to Egem's LIPE, as they are accounted for (by virtue of the already described VAT rules) abroad».

Therefore, a potential investigation into the relationship of pertinence between purchase and sale could not be relevant, since the attracted operations, having been produced through the human and technical means of the foreign permanent establishments, «are by definition integrally pertaining to foreign costs and, therefore, to costs excluded from VAT in Italy».

The party concludes that the only solution to the asymmetry is «therefore only one: the declaration of constitutional illegitimacy of the cited Article 37 to the extent that it takes, for the calculation of the Contribution, the total of outgoing operations present in the taxable person's LIPE, without excluding from such calculation the outgoing operations referable to the activity of foreign permanent establishments and included in the LIPE […] of the Italian parent company».

The Law in Brief

19.‒ By an order dated May 20, 2025 (ord. reg. No. 151 of 2025), the CGT of Rome, Section 27, raised questions of constitutional legitimacy concerning Article 37 of Decree-Law No. 21 of 2022, as converted and subsequently amended (Extraordinary contribution against high energy bills), with reference to Articles 3, 42, 53, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of Additional Protocol 1 to the ECHR.

20.‒ For the purpose of the relevance of the questions, the referring judge highlights that Article 37 of Decree-Law No. 21 of 2022, as converted and subsequently amended, stands as an obstacle to the recognition of the right to reimbursement in favor of Eni Global Energy Markets spa of the amount paid by it.

21.‒ As to non-manifest unfoundedness, firstly the referring judge specifies that the payment of the extraordinary contribution «eroded all company net equity, all operating income and all pre-tax profit for 2021, as well as all profit for 2022», raising the overall tax rate to the unsustainable level of 142 percent.

Such significant levels of taxation would encroach upon the «vital minimum», causing the «economic death» of the company, with an unfair and disproportionate deprivation of its assets.

Such confiscatory-expropriatory effect on patrimonial and income wealth—which for entirely "accidental” reasons, unanchored from effective increases in wealth, would have occurred only on the applicant company in the main proceedings and not also on other taxpayers—would result, according to the referring judge, in the violation of Articles 3, 42, and 53 of the Constitution.

22.‒ In view of the unjustified compression of the right of property, there would also be a violation of Article 117, first paragraph, of the Constitution and, indirectly, of Article 1 of Additional Protocol 1 to the ECHR.

23.‒ Furthermore, the referring judge considers that the challenged rule would violate Articles 3 and 53 of the Constitution because it would have a retroactive effect. Indeed, the extraordinary contribution would take as taxable wealth a differential calculated on the VAT turnover relating to the period October 2021-April 2022 (compared with the preceding period October 2020-April 2021) and, since it entered into force on March 22, 2022, with Decree-Law No. 21 of 2022, as converted and subsequently amended, it would burden wealth that had formed previously.

24.‒ According to the referring court, the challenged rule would also violate Articles 3 and 53 of the Constitution, due to a lack of reasonableness, inasmuch as it does not allow the exclusion, for the purpose of calculating the tax base of the extraordinary solidarity contribution, of outgoing invoices relating to territorially relevant operations carried out by permanent establishments of a company with its registered office in Italy.

The arguments upon which the referring judge is based move from the premise that, in the present case, the discipline of Article 54 of Regulation (EU) No. 282/2011 would apply, which derogates from the general rule of Article 192-bis of Directive 2006/112/EC.

From this regime it would follow that the outgoing operations of the permanent establishments of Eni Global Energy Markets spa, located in the United Kingdom, Belgium, and Singapore, carried out in Italy, where the parent company itself has its registered office, should be invoiced, recorded, and included in its own LIPE by the latter, «despite it having remained entirely extraneous to their execution».

The referring judge specifies, moreover, that the aforementioned derogation would operate solely with reference to outgoing operations carried out by permanent establishments, so that the incoming turnover of the latter, remaining attributed exclusively to them, would not influence the LIPE relevant for determining the tax base of the extraordinary contribution owed by the parent company.

This regime, as a whole, would determine a distortive effect with the consequence that the tax base of the extraordinary contribution would not be suitable ‒ hence the violation of the mentioned parameters ‒ to intercept that «"super-profit” which the legislature intends ‒ implicitly, but clearly ‒ to subject to taxation».

25.‒ Finally, according to the referring judge, the challenged provision would conflict with Articles 3 and 53 of the Constitution because the calculation of the extraordinary contribution, based «on the comparison of activities carried out in the period October 2021-April 2022 with those carried out in the period October 2020-April 2021», would not allow account to be taken of the fact that the company «substantially commenced its activity only on January 1, 2021».

26.‒ The questions referred to in points 21, 22, 23, and 25, just described, were already raised, in identical terms, by Section 19 of the CGT of Rome, in the proceedings concerning the request for reimbursement of the balance of the extraordinary solidarity contribution owed by Eni Global Energy Markets spa and were decided by this Court with Judgment No. 180 of 2025, subsequent to the referral order.

Since such questions, raised in today's formulation by the CGT of Rome, Section 27, which originates from the request for reimbursement of the amount of the extraordinary contribution paid as an advance by the same company, present no element of novelty, this Court deems it appropriate to fully confirm what was decided with the aforementioned Judgment No. 180 of 2025.

Consequently, the questions must all be declared manifestly unfounded.

27.‒ Remaining to be examined, instead, are the questions referred to in point 24, proposed for the first time and concerning the violation, for unreasonableness, of Articles 3 and 53 of the Constitution to the extent that the challenged provision does not allow the exclusion from taxation of the operations of permanent establishments attracted into the periodic VAT settlements of the Italian parent company.

27.1.‒ The State's defense objected to the inadmissibility of such questions due to an erroneous reconstruction of domestic and EU law.

27.2.‒ The objection is unfounded.

The considerations expressed by the Attorney General's Office regarding the non-applicability of the case within the scope of the EU framework invoked by the referring judge do not take into account, in fact, the correct application to the present case made by the referring judge of Article 54 of Regulation (EU) No. 282/2011, as will be specified below.

28.‒ On the merits, the questions are unfounded.

The reconstruction from which the referring judge moves is, as stated, correct.

Article 54 of Regulation (EU) No. 282/2011, directly applicable in the domestic legal order, provides, in fact, that: «[w]here a taxable person has established the seat of his economic activity in the territory of the Member State where the VAT is due, the provisions of Article 192a of Directive 2006/112/EC shall not apply irrespective of whether or not that seat intervenes in the supply of goods or services which he effects in that Member State».

This is a rule for identifying the VAT debtor that derogates from that established, in general terms, by Article 192-bis of Directive 2006/112/EC, according to which: «[f]or the purposes of this Section, a taxable person who has a fixed establishment in the territory of the Member State where the tax is due shall be regarded as a taxable person who is not established in the territory of that Member State where the following conditions are met: (a) he makes a taxable supply of goods or of services within that country; (b) the transaction is effected without the intervention of the fixed establishment situated in that Member State».

This latter provision has given relevance, for the purpose of identifying the subject required to fulfill VAT obligations, to the activity carried out by permanent establishments "delocalized” with respect to the country where the parent company has its registered office and has provided, as a necessary condition for attributing VAT obligations to them, that the operations were carried out through their active participation, i.e., when the permanent establishments concretely performed the provision of services, or supplied the goods, stably using their own means and personnel.

Article 54 of the Regulation, intervening in this area, prescribed however that this general rule, concerning the relevance of the permanent establishment for the purpose of identifying the person obliged to fulfill VAT obligations, does not apply when a taxable person has established the seat of his economic activity in the territory of the Member State where outgoing VAT operations were carried out by the permanent establishments.

The latter, in fact, for VAT purposes, have a subsidiary function with respect to the seat of economic activity, which remains the priority connection criterion, as it is «objective, simple, and practical» and capable of offering «great legal certainty» (ex plurimis, Court of Justice of the European Union, Tenth Chamber, Judgment of June 13, 2024, Case C-533/22, SC Adient Ltd & Co. KG) for the purpose of identifying the VAT debtor.

The attraction of outgoing operations carried out by permanent establishments located in other States within those of the parent company does not imply, however, that the latter also attracts incoming operations carried out by the former, which remain subject to the VAT rules of the place where they are located, being able to provide there for any deductions or reimbursement requests.

Ultimately, from this regime it derives ‒ and this is relevant for the purpose of determining the tax base of the solidarity contribution ‒ that the parent company is required to indicate in the LIPE also the invoices relating to territorially relevant operations carried out by permanent establishments located in other countries, but not the incoming invoices relating to purchases by the latter.

28.1.‒ Once it is clarified that the referring judge correctly reconstructed the regulatory framework, his argument is nevertheless unconvincing according to which outgoing operations attracted by the parent company would in no way be referable to the activity carried out by the latter, to the point of leading him to propose the declaration of constitutional illegitimacy of the challenged provision «to the extent that it does not allow the exclusion from taxation of the operations of foreign permanent establishments "attracted” into the LIPE by the Italian parent company».

Such an argument is fallacious, since it does not consider that within the VAT framework, the activity of the permanent establishment does not occupy a position of absolute legal autonomy with respect to that of its headquarters.

Nor does it take into account that the invoicing of the outgoing operation is generally connected to the collection of the relative price, with the possibility of internal contractual adjustments ‒ which do not assume relevance for VAT purposes as they relate to a single legal entity ‒ between the parent company and its permanent establishments.

Above all, such an argument does not evaluate that an acceptance of the aforementioned questions would lead ‒ it is the referring judge himself who expressly states that in such a hypothesis no obligation to pay the extraordinary solidarity contribution could any longer burden Eni Global Energy Markets spa ‒ to the complete sterilization of the possibility of intercepting the tax prerequisite that occurred in any case by virtue of the territorially relevant operations performed by the permanent establishments, with the consequent creation of a duty-free zone from the imposition of the extraordinary contribution solely dependent on the organizational choices of the parent company.

This would entail, moreover, an unreasonable disparity of treatment among economic operators subject to the extraordinary contribution, which would end up burdening exclusively economic subjects operating only within the national territory, with the exclusion of those who instead, like Eni Global Energy Markets spa, diversify the methods of carrying out economic activity through stabilization in other territories.

28.2.‒ Having clarified this, it must be recognized that the referring judge is not wrong, instead, in denouncing an asymmetry between outgoing and incoming operations that is capable of impacting, with potential distortive effects, the calculation of the tax base of the extraordinary contribution.

Such critical issues, however, must first of all be considered within the framework of the very particular situation that gave rise to the extraordinary contribution and upon which this Court has already dwelt in Judgments No. 111 of 2024 and No. 180 of 2025.

Even here it does not seem useless to reiterate, in summary, that the extraordinary contribution for the year 2022 ‒ a one-off levy on trade in energy products by those operators who have essentially benefited from a countercyclical trend ‒ was introduced to finance urgent solidarity interventions aimed at «containing for businesses and consumers the effects of the increase in prices and tariffs in the energy sector» (Judgment No. 111 of 2024).

Within a serious crisis situation due to extraordinary events, the legislature, given the need to intervene promptly, resolved ‒ in a context that (as specified in Judgment No. 111 of 2024) made other solutions difficult ‒ to borrow the application rules of the contribution from an indirect tax such as VAT, which does not guarantee, with the same certainty as the more traditional taxation on extra-profits based on income, the result of intercepting the greater wealth of those who may have benefited from such a conjuncture.

In justifying, within this framework, such a choice, this Court nevertheless wished to clearly specify that the extraordinary contribution represents a tax whose structural elements, «in ordinary times», could not, in themselves, «pass the test of rational connection and proportionality» (Judgment No. 111 of 2024).

At the same time, it also highlighted that, in any case, «the extraordinary nature of the moment and the temporariness of the taxation cannot be considered a passepartout for the introduction of any form of fiscal imposition» (Judgment No. 111 of 2024).

Such statements therefore constitute the premise from which to start when considering the criticality highlighted by the referring judge, in order to assess whether this has crossed that «essential threshold of manifest unreasonableness, beyond which the tax duty itself would end up losing its justification in terms of solidarity, resulting instead in the perspective of mere subjection to state power» (Judgment No. 111 of 2024).

28.3.‒ The answer is negative, for a twofold order of arguments.

28.3.1.‒ Firstly, it must be considered that the prerequisite of the extraordinary solidarity contribution is identified with the increase in the differential balance that results from the sale, under certain conditions, of energy products, in a particular temporal context, by certain subjects operating in the sector.

More precisely, the legislature intended to anchor the coherence of the tax to the existence of a "differential of differentials” calculated by means of the difference between the balance of outgoing and incoming operations for the period from October 1, 2021, to April 30, 2022, and the balance of outgoing and incoming operations for the period from October 1, 2020, to April 30, 2021.

This criterion, upon closer inspection, does not always require full symmetry of entries between outgoing and incoming operations, since the related purchases may have been made outside the scope of the time periods taken as a reference by the legislature; such circumstance, however, is not capable of invalidating the constitutional legitimacy of the extraordinary solidarity contribution, as it is «a mere factual inconvenience» (Judgment No. 111 of 2024).

Moreover, since the rate is applied to the differential increase deriving from the comparison between balances, this phenomenon, relating to the totality of operations contributing to the LIPE, can exist in both reference periods, thus coming to balance, at least potentially.

Furthermore, given that invoicing, as stated, is generally connected to the collection of the relative price, the parent company can operate contractual compensations, which assume no relevance for VAT purposes, with its permanent establishments.

Finally, it must be considered that this organization of activity worldwide allows the parent company to meet the needs of Italian transferees even in moments of crisis, thus showing a consequent differential positioning in the market.

28.3.2.‒ Secondly, the referring judge's attempt to replicate, with reference to the present case, the argument that this Court developed to reach the declaration of constitutional illegitimacy, in the recalled Judgment No. 111 of 2024, of the inclusion of excise duties, paid to the State and indicated in outgoing invoices, for the purpose of quantifying the incremental balance relevant for the calculation of the contribution, does not appear convincing.

The judgment arrived at such an outcome by highlighting various reasons why «[t]he peculiarity of the excise tax imposition regime – a tax which therefore has a single-phase nature – reflects upon, radically compromising, the reasonableness of the challenged provision», and therefore not only because excise duties are «included in outgoing invoices relevant for LIPE purposes, even though they do not appear in incoming purchase invoices», given that the purchase took place under a tax suspension regime.

In particular, the Court specified that excise duties are settled «by applying the tax rate to the quantity of product», whereby they completely disregard the selling price and, therefore, «even when the subject liable for the extraordinary solidarity contribution, while increasing sales, had decreased the price of the products, the impact of excise duties would have contributed to raising the tax base of the contribution itself, even in the absence of any speculative maneuver».

Moreover, it emphasized that the «complex application dynamics of excise duties also determines horizontal discrimination among the subjects liable for the contribution: because only for some of these, i.e., those who pay the excise duty to the State and "load” it into outgoing invoices, does the described distortive effect occur, but not for those who, within the supply chain, can transfer energy products under tax suspension, for whom excise duties are not relevant […]» (Judgment No. 111 of 2024).

These are profiles correlated to the specificity of the excise duty discipline and which contribute in a decisive measure to invalidate the calculation mechanism of the tax base of the extraordinary solidarity contribution.

Such profiles, however, are not transposable to the present case, where only one of the critical issues highlighted in that judgment comes into consideration, namely that inherent to asymmetry, which alone, for what has already been specified, is however not decisive.

Nor is the reference proposed by the referring judge to Article 37, paragraph 3-ter, of Decree-Law No. 21 of 2022, as converted and subsequently amended, regarding territorially non-relevant outgoing invoices, according to which: «[t]hose outgoing operations not subject to VAT due to the lack of a territorial prerequisite, pursuant to Articles 7 to 7-septies of Presidential Decree No. 633 of October 26, 1972, shall not contribute to the determination of the totals of outgoing operations referred to in paragraph 3, if and to the extent that the purchases related thereto are territorially non-relevant for VAT purposes», relevant either.

Such provision, in fact, has the function of establishing in which cases outgoing operations, not subject to VAT due to a lack of the territorial prerequisite, can nevertheless apply for the calculation of the extraordinary contribution: this is a criterion that, in reality, moves in the opposite direction to what the referring judge intends to suggest, since it produces the effect that even VAT operations lacking the territoriality requirement can assume relevance for the purpose of calculating the extraordinary contribution.

28.3.3.‒ In conclusion, in light of these considerations, the circumstance that, for the purpose of calculating the tax base of the extraordinary contribution, account must be taken of outgoing operations carried out by permanent establishments, relevant in the territory where the parent company has its registered office, and not also of incoming operations relating to purchases made by them, does not transcend that threshold of manifest unreasonableness which this Court has in any case required to be respected also within the scope of the extraordinary solidarity contribution.

28.4.‒ Lastly, it must also be considered that it would not even be possible to remedy the highlighted criticality by providing for the attraction into the parent company's LIPE of the related incoming invoices concerning purchases made by permanent establishments abroad, in such a way as to take them into account for the purpose of calculating differential balances.

Not only does what was previously stated regarding non-necessary asymmetry militate in this direction, but also, as indeed specified by the party's defense itself, the fact that this solution, on the one hand, would determine «a radical upheaval of the entire tax architecture for [VAT] purposes, even before that of the Contribution», and, on the other hand, would not consider the irrelevance, in the present case, of a connection of pertinence between purchase and sale invoices, since the former are by definition entirely relative to foreign costs and, therefore, «to costs excluded from VAT in Italy».

These are assumptions that are certainly shareable; moreover, it must also be added that the highlighted criticality is a consequence of the economic operator's organizational choice, which implies subjecting the incoming operations performed by its permanent establishments to the specific VAT discipline of the place where they are located.

on those grounds

THE CONSTITUTIONAL COURT

1) declares the manifest unfoundedness of the questions of constitutional legitimacy of Article 37 of Decree-Law No. 21 of March 21, 2022 (Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis), converted, with amendments, into Law No. 51 of May 20, 2022, as amended by Article 55 of Decree-Law No. 50 of May 17, 2022 (Urgent measures regarding national energy policies, business productivity and investment attraction, as well as social policies and the Ukrainian crisis), converted, with amendments, into Law No. 91 of July 15, 2022, and subsequently amended by Article 1, paragraph 120, letters a), b), and c), of Law No. 197 of December 29, 2022 (State forecast budget for the financial year 2023 and multi-year budget for the 2023-2025 three-year period), raised, with reference to Articles 3, 42, 53, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights, by the Court of Tax Adjudication of First Instance of Rome, Section 27, by the order indicated in the heading;

2) declares unfounded the questions of constitutional legitimacy of Article 37 of Decree-Law No. 21 of 2022, as converted and subsequently amended, raised, with reference to Articles 3 and 53 of the Constitution, under the profile of unreasonableness, by the Court of Tax Adjudication of First Instance of Rome, Section 27, by the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 19, 2026.

Signed:

Giovanni AMOROSO, President

Luca ANTONINI, Rapporteur

Roberto MILANA, Registrar

Deposited in the Registry on July 21, 2026