Opinion of the Advocate General — ECLI:EU:C:2026:268
Date: 2026-03-26
Language of the case: Italian

Summary C-592/24 – 1 
Case C-592/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 September 2024 
Referring court: 
Corte suprema di cassazione (Italy) 
Date of the decision to refer: 
10 September 2024 
Appellant: 
Agenzia delle Entrate 
Respondents: 
Société Générale S.A. 
SG Factoring SpA 
SG Leasing SpA 
Fraer Leasing SpA 
SG Equipment Finance Italy SpA 
  
Subject matter of the main proceedings 
Appeal on a point of law brought by the Agenzia delle Entrate (Revenue Agency, 
Italy; ‘the Agency’) against judgment No 4061/06/2019 of the Commissione 
Tributaria Regionale della Lombardia (Regional Tax Court, Lombardy, Italy), 
which upheld Société Générale S.A.’s appeal against judgment No 185/3/2018 of 
the Commissione Tributaria Provinciale di Milano (Provincial Tax Court, Milan, 
Italy). The latter had dismissed the three appeals brought by Société Générale S.A. 
against the three decisions of 28 December 2016 by which the Agency had 
refused admission to the national consolidated group taxation regime for the 2010, 
2011 and 2012 tax periods (‘the tax periods in question’). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-592/24 
 
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Subject matter and legal basis of the request 
The potential incompatibility with Articles 49 and 54 TFEU of the tax legislation 
in force in Italy during the tax periods in question, under which a consolidating 
company resident abroad cannot exercise the option for national tax consolidation 
and benefit from the ensuing benefits, in particular the deductibility in full of 
interest payments in intra-group transactions provided for in Article 96(5-bis) of 
decreto del Presidente della Repubblica n. 917/1986 (Decree of the President of 
the Republic No 917/1986), an exclusion which could undermine the effective and 
uniform application of EU law, and also breach the principle of non-
discrimination. 
Questions referred for a preliminary ruling 
1. Do Articles 49 and 54 TFEU, as interpreted by the Court in SCA Holding 
(C-39/13 to C-41/13), preclude national legislation which prevents certain 
companies from benefiting, under the national tax consolidation scheme, from a 
more favourable regime of deductibility of interest payments, on the sole ground 
that the common parent company is resident in another Member State and thus 
they cannot have access to that national tax consolidation scheme, whereas those 
companies would have benefited from that more favourable deductibility regime if 
their parent company had been resident in Italy or if the shareholdings of those 
companies had been attributed to the permanent establishment of the non-resident 
parent company? 
2. Do Articles 49 and 54 TFEU, as interpreted by the Court in SCA Holding 
(C-39/13 to C-41/13), preclude national legislation which permits only vertical tax 
integration between a resident parent company and its resident subsidiaries, and 
horizontal tax integration between companies controlled by a non-resident 
company, and which, by contrast, excludes tax integration between subsidiaries 
and non-resident parent companies? 
3. Do Articles 49 and 54 TFEU, as interpreted by the Court in SCA Holding 
(C-39/13 to C-41/13) and in the light of the principles of effectiveness and 
equivalence referred to in the judgment of the Court of 14 May 2020, B and 
others, C-749/18, preclude national legislation which provides that failure to 
exercise the option for tax consolidation, at a time when that tax consolidation was 
not permitted, may subsequently prevent access to the effects (restoration, by 
means of reimbursement) of the correct application of Community law, and 
therefore to the disapplication of the national legislation which conflicts with it? 
Provisions of European Union law and case-law relied on 
Articles 49 and 54 TFEU, as interpreted by the judgment of the Court of 12 June 
2014, SCA Group Holding and others, joined cases C-39/13 to C-41/13. 
AGENZIA DELLE ENTRATE 
 
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The principle of non-discrimination. 
Principles of effectiveness and equivalence as interpreted by the judgment of the 
Court of 14 May 2020, B and others, C-749/18. 
Provisions of national law relied on 
Decreto del Presidente della Repubblica n. 917 – Approvazione del testo unico 
delle imposte sui redditi (Decree of the President of the Republic No 917 
approving the consolidated law on income tax) of 22 December 1986 (‘the 
TUIR’); in particular: 
Article 96(5-bis): 
‘Interest payments made by the entities referred to in the first sentence of 
paragraph 5 shall be deductible from the basis of assessment for that tax by up to 
96% of their amount. In the context of the national tax consolidation scheme 
referred to in Articles 117 to 129, the total amount of interest paid by the entities 
referred to in the preceding sentence participating in the consolidation to other 
participating entities shall be fully deductible up to the total amount of interest 
paid by the participating entities to entities not included in the consolidation. The 
parent company or entity shall deduct in full the interest payments referred to in 
the preceding sentence when making the declaration referred to in Article 122, by 
making the relative downward adjustment of the algebraic sum of the total net 
income of the persons participating’. 
Article 117, in the version applicable to the tax periods in question: 
‘1. The parent company or entity and each subsidiary company falling within 
the categories of entities referred to in Article 73(1)(a) and (b), between which 
there is a relationship of control of the kind envisaged in subparagraph 1 of the 
first paragraph of Article 2359 of the Civil Code, under the conditions laid down 
in Article 120, may jointly exercise the group taxation option. 
2. The entities referred to in Article 73(1)(d) may exercise the option referred 
to in paragraph 1 only in their capacity as parent companies and on the condition 
that: 
(a) they are resident in countries with which an agreement for the avoidance of 
double taxation is in force; 
(b) they carry on, within the territory of the State, a business activity, as defined 
in Article 55, through a permanent establishment, as defined in Article 162, the 
assets of which include the shareholding in each subsidiary company. 
3. Provided that the control requirement referred to in paragraph 1 continues to 
be met, the option shall last for three financial years and be irrevocable. 
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If that requirement is no longer met, the consequences referred to in Article 124 
shall apply.’ 
Article 117 of the TUIR, as amended by Article 6(1)(b) of decreto legislativo n. 
147 (Legislative Decree No 147) of 14 September 2015 (applicable from the tax 
period in which that decree entered into force): 
‘1. The parent company or entity and each subsidiary company falling within 
the categories of entities referred to in Article 73(1)(a) and (b), between which 
there is a relationship of control of the kind envisaged in subparagraph 1 of the 
first paragraph of Article 2359 of the Civil Code, under the conditions laid down 
in Article 120, may jointly exercise the group taxation option. 
2. The entities referred to in Article 73(1)(d) may exercise the option referred 
to in paragraph 1 in their capacity as parent companies and on the condition that: 
(a) they are resident in countries with which an agreement for the avoidance of 
double taxation is in force; 
(b) they carry on, within the territory of the State, a business activity, as defined 
in Article 55, through a permanent establishment, as defined in Article 162, which 
acts as the consolidator. 
2-bis. The entities referred to in Article 73(1)(d) which do not meet the 
requirement referred to in point b of paragraph 2 and reside in Member States of 
the European Union or in States that are parties to the Agreement on the European 
Economic Area with which Italy has entered into an agreement that ensures 
effective exchange of information, which have a similar legal form to those 
referred to in Article 73(1)(a) and (b), may designate a State-resident or non-
resident company referred to in paragraph 2-ter, which is a subsidiary within the 
meaning of subparagraph 1 of the first paragraph of Article 2359 of the Civil 
Code, under the conditions laid down in Article 120, to exercise the group 
taxation option jointly with each resident or non-resident company referred to in 
paragraph 2-ter, over which they likewise exercise control within the meaning of 
subparagraph 1 of the first paragraph of Article 2359 of the Civil Code, under the 
conditions laid down in Article 120. The designated subsidiary cannot exercise the 
option with companies of which it is a subsidiary. For the purposes of this 
paragraph: (a) the designated subsidiary, in its capacity as consolidator, acquires 
all the rights, obligations and charges provided for in Articles 117 to 127 in 
respect of the parent companies or entities; (b) the control requirements referred to 
in paragraph 1 must be verified in respect of the non-resident parent entity; (c) the 
effectiveness of the option is subject to the condition that the non-resident parent 
entity designates the resident subsidiary assuming, in addition, the liabilities 
provided for in Article 127 in respect of the parent companies or entities; … 
2-ter. Entities referred to in Article 73(1)(d), that are subsidies within the meaning 
of subparagraph 1 of the first paragraph of Article 2359of the Civil Code, may 
AGENZIA DELLE ENTRATE 
 
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exercise the option referred to in paragraph 1 as a subsidiary through a permanent 
establishment as defined in paragraph 1-bis of Article 120. 
3. Provided that the control requirement referred to in paragraph 1 continues to 
be met, the option shall last for three financial years and be irrevocable. At the end 
of the three-year period, the option shall be tacitly renewed for another three-year 
period unless it is revoked, in accordance with the procedure and terms provided 
for notifying the option. …. If the control requirement referred to in paragraph 1 is 
no longer met, the consequences referred to in Article 124 shall apply.’ 
Article 129 of the TUIR. 
Decreto Ministeriale (Ministerial Decree) of 9 June 2004; in particular, Article 5. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Société Générale S.A., the ultimate parent company incorporated under French 
law (‘the ultimate parent company’), participated, during the tax periods in 
question, in the national tax consolidation scheme through SG Milano, which is its 
secondary establishment in Italy (‘the Italian branch’). 
2 The Italian subsidiaries of the ultimate parent company, namely, SG Factoring 
s.p.a., SG Leasing s.p.a., Fraer Leasing s.p.a. and SG Equipment Finance Italy 
s.p.a. (‘the subsidiaries’), were not part of that consolidation since the conditions 
laid down in Article 117 of the TUIR in the version in force during the tax periods 
in question were not met. 
3 Consequently, those subsidiaries made interest payments to the Italian branch and, 
for the purposes of determining the basis of assessment for their corporate income 
tax, deducted the interest paid up to 96% of its amount, in accordance with 
Article 96(5-bis) of the TUIR. 
4 On 19 June 2015, the ultimate parent company submitted three applications to the 
Agency for reimbursement of the higher corporate income tax paid because of the 
failure to deduct, in the context of the national tax consolidation scheme, the 
remaining 4% of the interest paid, which corresponded, for the tax periods in 
question, to EUR 215 156.00, EUR 476 878.00 and EUR 301 275.00, 
respectively. 
5 On 28 December 2016, the Agency notified the ultimate parent company of three 
refusal decisions, for each of the tax periods in question, holding that the 
conditions laid down in Article 117(2) of the TUIR for admitting the subsidiaries 
to the group taxation regime had not been met, in so far as the ultimate parent 
company’s permanent establishment did not include in its assets the shareholdings 
in each of the subsidiaries. 
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6 The ultimate parent company brought an action against those decisions before the 
Provincial Tax Court, Milan, which, by judgment No 185/3/2018, declared the 
ultimate parent company’s claims for reimbursement to be unfounded, as they 
related to companies that were not included in the national tax consolidation. 
7 However, the Regional Tax Court, Lombardy, hearing the appeal brought by the 
ultimate parent company against that judgment, held, by judgment 
No 4061/06/2019 (‘the judgment under appeal’), that, according to the case-law of 
the Court of Justice in the SCA Group Holding judgment, the fact that the 
shareholdings of the subsidiaries were included in the assets of the ultimate parent 
company and not in those of the Italian branch does not preclude recognition of 
the ultimate parent company’s right to reimbursement. The Agency brought an 
appeal against that judgment before the Corte di cassazione (Supreme Court of 
Cassation, Italy), the referring court. 
The essential arguments of the parties in the main proceedings 
8 In support of its appeal, the Agency submits, first, that the judgment under appeal 
wrongly held that the 2016 refusal decisions were unlawful: it reiterates that the 
ultimate parent company and the subsidiaries were not part of any national tax 
consolidation and that only the subsidiaries were entitled to claim any 
reimbursement of the amount unduly paid. 
9 Secondly, it considers that the judgment under appeal undermines the fundamental 
principle of legal certainty, since it interprets subsequent EU case-law as requiring 
the Italian tax authority to regard as having been submitted in a timely manner an 
option for national tax consolidation which had never actually been submitted. 
Therefore, according to the Agency, the subsidiaries should, in any event, have 
submitted the option for national tax consolidation, in accordance with the 
provisions of Article 5 of the Ministerial Decree of 9 June 2004, and then 
challenged any refusal decisions. 
10 Thirdly, the Agency submits that the national tax consolidation regime previously 
in force, which was subsequently amended with non-retroactive effect by 
Legislative Decree No 147/2015, complies with EU law, and that the principles 
laid down in the SCA Group Holding judgment are not applicable to the case at 
hand. In its view, while that latter judgment concerns only so-called ‘vertical 
consolidation’, between a consolidating company and subsidiaries, the main 
proceedings refer to ‘horizontal consolidation’, that is to say between resident 
companies controlled by non-resident companies. 
11 The ultimate parent company and the subsidiaries oppose the appeal and have 
lodged a cross-appeal, referring to recent case-law on the subject, in particular the 
judgment of the Court in B and Others, C-749/18, and that of the EFTA Court of 
1 June 2022, E-3/21. 
AGENZIA DELLE ENTRATE 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court points out that, during the tax periods in question, the Italian 
subsidiaries which were dependent on a parent company resident abroad could 
have access to the national tax consolidation scheme only in one case: the foreign 
parent company had to have a permanent establishment in Italy and that 
permanent establishment, in order to be able to act as ‘consolidator’ of the Italian 
subsidiaries, had, however, to hold in its assets the shareholdings of each of the 
subsidiaries that wanted to gain access to the national tax consolidation scheme. 
However, following the case-law arising from the SCA Group Holding judgment, 
Legislative Decree No 147/2015 amended the Italian legislation in a manner 
consistent with freedom of establishment, allowing horizontal consolidation, so 
that today subsidiaries resident in one Member State (‘sister companies’) may also 
constitute a single tax entity, even if their parent company is resident in another 
Member State, irrespective of the existence of a permanent establishment of the 
latter in the national territory. 
13 First, in the light of the legal framework in force during the tax periods in 
question, the referring court considers that the principle of freedom of 
establishment and equal treatment of companies within the European Union may 
be infringed if the possibility to fully deduct, within the context of a tax 
consolidation scheme, interest paid by companies with a non-resident parent 
company is excluded, a possibility which is, by contrast, available to companies 
with a common resident parent company. The exercise of freedom of 
establishment could be affected by that difference in treatment as regards the 
deductibility of interest payments within the context of the tax consolidation 
scheme. 
14 Secondly, according to the referring court, the present case raises the question of 
whether the exercise of the tax consolidation option is necessary, in order to 
obtain the related benefits, even in a situation in which that option was prohibited, 
given that at the material time consolidation between a parent company resident 
abroad and subsidiaries resident in Italy was not permitted. Referring, in that 
regard, to the judgment of the Court in B and others, C-749/18, the referring court 
states that making the deductibility in full of interest payments subject to a 
specific tax consolidation option, for tax periods during which that option was not 
provided for by the law, amounts, in effect, to creating unequal treatment between 
companies within the European Union, by preventing companies controlled by 
non-resident entities from taking advantage of the same benefits as those which 
companies controlled by resident entities would have been able to enjoy. 
15 Thirdly, the referring court notes that the judgment in SCA Group Holding 
appears to concern only cases of vertical consolidation, whereas it does not appear 
to address the question of whether Articles 49 and 54 TFEU always and in any 
event require Member States to allow both vertical consolidation and horizontal 
consolidation in which, as provided for in the version of Article 117(2)a of the 
TUIR introduced by Legislative Decree No 147/2015, the consolidator is a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-592/24 
 
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company (in the present case, SG Milano) which is controlled by the same 
company as that which controls the other ‘sister companies’.