Legislative Decree No. 125 of 6 September 2024 implemented the Corporate Sustainability Reporting Directive (Directive No. 2022/2464 of 16 December 2022), which is part of the legal path followed by the European Union aimed at building a regulatory system that achieves sustainable development through the progressive involvement of companies.

By introducing a series of obligations and duties towards businesses, the role of companies is evolving in the sense of ceasing to act exclusively as subjects with private interests and starting to deal with issues of global relevance, through the adoption of measures aimed at implementing a ‘sustainable business’ model.

With this in mind, the European legislator decided to intervene from the outset by stipulating transparency obligations for companies with respect to the pursuit of socially sustainable policies.

Companies are required to make a disclosure about their commitment to act by adopting corporate strategies that are in line with long-term objectives and that also take into account social and environmental factors, with a view to increasing the confidence of investors and of a significant portion of civil society that demands that companies assume greater corporate social responsibility.

In this sense, Directive 2014/95 required certain types of large companies to draw up a non-financial character statement, in which they should transmit ‘at least the environmental, social, personnel, human rights, active and passive anti-corruption information to the extent necessary for an understanding of the company’s performance, its situation and the impact of its activities’.

The non-financial declaration, according to the aforementioned regulatory act, had to contain indications of the policies applied with regard to the aforementioned aspects, the justification for the possible absence of such strategies, and the potential risks associated with the company’s activity with regard to the protection of the prerogatives covered by the aforementioned declaration.

In this context, the Corporate Sustainability Reporting Directive has intervened, with the aim of attributing greater relevance and authority to the non-financial statement, as well as harmonising the disciplines of the Member States in order to make the information contained in the statement as susceptible as possible to being compared, measured and verified.

Starting with an important terminological issue, the European legislator emphasises that it is not only appropriate, but even necessary to replace the term ‘non-financial reporting’ with ‘sustainability reporting’. This is because, as explained in Recital 8, it would be misleading to assume that reporting on compliance with environmental and social policies has no financial impact. On the contrary, experience shows that investors are increasingly interested in the social and environmental impact of companies, confirming the potential impact of reporting on company profitability.

A further change of primary interest consists in the decision to compulsorily integrate the management report with sustainability reporting, in the terms described in Article 2 of Legislative Decree 125/2024.

The CSRD has, in fact, delegated the Commission to draw up reporting principles applicable by all member states, in order to ensure that the statements provided by companies are relevant, reliable, comparable and understandable. The main objective is to improve the quality and consistency of sustainability information, thereby facilitating the assessment of ESG performance by investors and other stakeholders. The Commission, after consultation with EFRAG, outlined the reporting principles in EU Delegated Regulation 2023/2772.

With a view to making compliance with the sustainability reporting rules more meaningful and incisive, the 2022 Directive also introduced the obligation for Member States to provide for checks on the compliance of the information provided with the standards and further rules, by means of a reporting statement.

Although the Legislative Decree No. 254 of 30 December 2016 already -anticipating the Directive- provided for an obligation to check the compliance of the non-financial statement, Decree 125/2024 adapted the object of the check to the provisions introduced by the European legislator.

The last innovation examined here brought about by Directive 2022/2464 concerns the progressive expansion of the subjective sphere of companies obliged to publish a sustainability disclosure .

As of 2026, in fact, not only large companies, but also small and medium-sized listed companies (SMEs), with the exception of ‘micro-enterprises’, will be included among the recipients of the reporting obligations. For SMEs, it was recognised that the implementation should be phased in gradually, through the provision of two facilities: the limitation of reporting to a reduced number of essential elements and the possibility of postponing full compliance until the financial year 2028.

Despite this, it is not complex to understand the important consequences that will gradually be produced by the broadening of the scope of application.

The innovations introduced by the Corporate Sustainability Reporting Directive and the recent publication of the Corporate Sustainability Due Diligence Directive, which was approved in June 2024, show how the European Union is increasingly intent on and oriented towards reconfiguring the role of companies in a more sustainable and responsible way.

This perspective opens up numerous reflections on our model of society and governance, requiring the administrative body to adopt measures that realise interests that are not purely ‘social’ and to demonstrate the adoption of such measures through the transparency obligations contained in the CSRD, strengthening theaccountability of the company.

[ 1] Non-financial disclosure – Borsa Italiana; Calvosa, La sfida della sostenibilità, Riv. dir. soc., 1, 2024; Rimini, Sostenibilità e nuova governance delle imprese azionarie nel diritto interno e comunitario tra realtà, criticità e prospettive, Giur. Comm., 2024, fasc.2, 285. ; Salerno, Gli obblighi di ‘attestazione’ della rendicontazione di sostenibilità nella CSRD, Il nuovo diritto delle società, 2, 2024, 261; Cagnasso, Impresa e sostenibilità – Sostenibilità socio ambientale e sostenibilità finanziaria nella prospettiva delle P.M.I, Giurisprudenza Italiana, 5, 2024, 1229.

An innovative startup is a type of enterprise characterised by a high technological component and a scalable business model. They are emerging enterprises that seek to solve problems or satisfy market needs in an innovative way, using advanced technologies or new approaches through the implementation of creative ideas.

Innovative start-ups often operate in high-tech fields such as computer science, artificial intelligence, biotechnology, blockchain and more. They are characterised by a strong appetite for risk and investment in research and development to increase products. Moreover, these new companies̀ aim to expand rapidly nationally or internationally by seeking funding.

They play a predominant role in stimulating innovation, job creation and economic development.

Pursuant to the reference legislation (DL 179/2012, Art. 25, paragraph 2) an innovative start-up is a joint-stock company, also established as a cooperative, that meets the following objective requirements

• it is new or has been established for no more than 5 years
• it is resident in Italy, or in another country of the European Economic Area, but has its production site or branch in Italy
• has an annual turnover of less than EUR 5 million
• is not listed on a regulated market or multilateral trading platform
• does not and has not distributed profits
• has as its exclusive or predominant corporate purpose the development, production and marketing of a high-technology product or service
• is not the result of a merger, demerger or sale of a business unit

Finally, a startup is innovative if it meets at least 1 of the following 3 subjective requirements

1. it incurs R&D expenditure of at least 15% of the higher of cost and total value of production;
2. it employs highly qualified personnel (at least 1/3 PhD, PhD students or researchers, or at least 2/3 with a master’s degree)
3. is the owner, custodian or licensee of at least one patent or holder of registered software. 

Investing in an innovative startup can offer not only the opportunity to participate in the revolution and growth of promising enterprises, but also to obtain significant tax benefits. In this regard, the Italian government has introduced a series of tax incentives to encourage investments in innovative start-ups, with the aim of fostering the development of the entrepreneurial ecosystem and the creation of jobs in the new technology sector. In this guide, we will explore the main tax advantages offered to investors who decide to support these new Italian companies.

1. De minimis tax incentive for investing in innovative start-ups and SMEs: The incentive provides a 50% IRPEF deduction intended for individuals investing in the venture capital of innovative startups or innovative SMEs. The incentives are granted under the “de minimis” Regulation (Commission Regulation (EU) No 1407/2013 of 18 December 2013).
2. Tax credit for investments in innovative startups: One of the key measures is the tax credit for investments made in innovative startups. Investors can benefit from a tax credit of 30 per cent of the amount invested, up to a maximum of EUR 1.8 million per year. This means that a significant reduction in income tax can be obtained, effectively reducing the financial risk of the investment.
3. Capital Gains Tax Exemption: In the event that a capital gain is realised from the sale of units or shares in an innovative start-up, the investor can benefit from a total exemption from capital gains tax. This exemption is a considerable advantage, as investors can keep the full amount of the gain without having to pay tax on their winnings.
4. Deduction of losses: Investments in innovative start-ups involve a certain degree of risk, but the Italian government has provided a measure to mitigate any losses. Investors can deduct losses incurred by investing in innovative start-ups from their overall income, thus reducing their income tax. This possibility to deduct losses represents an important financial security for investors and may further stimulate interest in innovative start-ups.
5. Capital Reinvestment Allowances: To further incentivise the reinvestment of capital in innovative start-ups, the Italian government has introduced a measure that allows investors to benefit from a 50 per cent tax break on reinvested profits. In other words, if one realises a capital gain from a previous investment in an innovative startup and decides to reinvest it in another startup, it will be possible to reduce capital gains tax by 50% of the reinvested amount.
6. Facilitated tax regime for innovative start-ups: Innovative start-ups can benefit from a favourable tax regime that provides for a reduction of the corporate income tax (IRES) rate to 15 per cent for the first three years of activity and to 20 per cent for the next two years. This advantage translates into greater competitiveness for start-ups and caǹ make investing in innovative start-ups even more attractive to investors.

Investing in innovative start-ups in Italy offers numerous tax advantages that can attract more backers. From the IRPEF deduction of 50 per cent to exemptions on capital gains, via capital reinvestment allowances and the favourable tax regime for start-ups, the Italian government has put in place a number of measures to support and incentivise the innovative start-up sector.

Last week we briefly framed the eCommerce phenomenon and delved into where, how and when a digital contract is deemed to have been concluded.

Among the legal problems addressed last week in connection with digital contracts, one fairly complex problem was deliberately left out for which a separate discussion was necessary, namely, which law is applicable to digital contracts.

WHAT IS THE LAW APPLICABLE TO DIGITAL CONTRACTS?

On the subject of eCommerce, it is necessary in this respect to refer to a variety of regulatory sources, including the Rome Convention and the Rome I Regulation.

The Rome Convention of 1980 on the law applicable to contractual obligations is a convention of private international law that entered into force in Italy on 1 April 1991, following ratification by Law No. 975 of 18 December 1984.

It is in force in all countries of the European Union but has a universal character, as it applies even when the law to which its principles refer is not the law of a contracting state.

Over the years, the ratification of the Convention was followed by the adoption of Regulation (EC) No. 593/2008, known as the ‘Rome I Regulation’, which had the effect, within the European Union, of disapplying the Convention to contracts entered into on or after 17 December 2009.

THE ROME CONVENTION AND DIGITAL CONTRACTS

Assuming that the eCommerce relationships of which we speak are characterised by an international component of the parties involved, for the purpose of identifying the law applicable to international contracts, the Convention indicates three criteria:

1. the autonomy of the parties;
2. that of proximity,
3. that of conservation

The main criterion, party autonomy

The main connecting factor established by the Convention is certainly the will of the parties 1. The autonomy of the parties in choosing which law is applicable to the contract (“choice of law”) is an absolute principle that may also legitimise the use of systems of law that have no connection with the essential elements of the contract or the application of different systems of law to different parts of the contract (“depecage”).

The choice of law is considered to be a legal transaction and may be either expressly deliberated or tacitly identified through the interpretation of the content of the contract or the circumstances surrounding its conclusion. This choice is always modifiable by agreement of the parties but the modification will not produce effects in relation to the possible invalidity of the contract or in relation to possible prejudice to the acquired rights of third parties.

Very relevant to the application of the convention to eCommerce is the regulation in relation to contracts concluded with consumers 2 who may not be deprived of the protection granted to them by the mandatory provisions of the law of the country in which they habitually reside.

Specifically:

• if the conclusion of the contract was preceded in the country of the consumer’s habitual residence by a specific proposal or advertising and if the consumer performed in the same country the acts necessary for the conclusion of the contract, or
• if the other party or its representative received the consumer’s order in the country of residence, or
• if the contract is a sale of goods and the consumer has travelled from his country of residence to a foreign country and placed the order there, provided that the journey was organised by the seller to induce the consumer to conclude a sale;

the law of the country in which the consumer has his habitual residence shall apply.

This rule does not apply in the case of contracts of carriage and contracts for the provision of services where the services owed to the consumer are to be provided exclusively in a country other than that in which he or she is habitually resident, except in the case of contracts providing for combined transport and accommodation services for an overall price.

The residual criteria

To the extent that the law governing the contract has not been chosen, the contract is governed by the law of the country with which it is most closely connected. However, if a part of the contract is severable from the rest and has a closer connection with another country, the law of that other country may exceptionally apply to that part of the contract.

In this regard, it is presumed that the contract is most closely connected with the country in which the party who is to render the performance characterising the contract has, at the time of the conclusion of the contract, its habitual residence or, in the case of a company, association or legal person, its central administration. In contracts involving consideration for services, the characterising nature of services involving the payment of sums of money is excluded.

Furthermore, where the subject matter of the contract is a right in rem in immovable property or the right to use immovable property, the contract shall be presumed to be most closely connected with the country in which the property is situated and, in the case of a contract for the carriage of goods, it shall be presumed to be most closely connected with the country in which the carrier has its principal place of business at the time of the conclusion of the contract if that country is the same as that in which the place of loading or unloading or the principal place of business of the shipper is situated.

Under the preservation criterion, the contract is to be considered fully valid if it satisfies the formal requirements of the law governing its substance or, alternatively, the law of the place where it was concluded.

DIGITAL CONTRACTS UNDER REGULATION (EC) NO 593/2008

As specified above, the ‘Rome I Regulation’ has had the effect within the European Union of disapplying the Convention to contracts entered into on or after 17 December 2009.

While reaffirming the centrality and priority of the parties’ choice of applicable law 3 , the Regulation determined the merely residual nature of the criterion requiring reference to the law of the country with which the contract is most closely connected, setting specific criteria for the various types of contract identified. Hence:

• a contract for the sale of goods is governed by the law of the country in which the seller has his habitual residence;
• the contract for the provision of services is governed by the law of the country in which the service provider has his habitual residence;
• a contract having as its object a right in rem in immovable property or a lease of immovable property is governed by the law of the country in which the property is situated;
• However, the letting of a property concluded for temporary private use for a period of no more than six consecutive months is governed by the law of the country in which the owner has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same country;
• the franchise contract is governed by the law of the country in which the franchisee has its habitual residence;
• the distribution contract is governed by the law of the country in which the distributor has his habitual residence;
• the contract for the sale of goods at auction is governed by the law of the country in which the auction takes place, if that place can be determined;
• a contract concluded in a multilateral system that enables or facilitates the matching of multiple third-party buying and selling interests in financial instruments, as regulated by Directive 2004/39/EC 4.

Very special rules are laid down for contracts of carriage since the parties may choose as the law applicable to the contract of carriage of passengers only the law of the country in which: a) the passenger has his habitual residence; b) or the carrier has his habitual residence; c) or the carrier has its central administration; d) or the place of departure is situated; e) or the place of destination is situated.

Furthermore, to the extent that the law applicable to the contract of carriage has not been chosen:

• the law applicable to the contract of carriage of goods is that of the country of habitual residence of the carrier, provided that the place of receipt or delivery or the habitual residence of the sender is also situated in that country;
• the law applicable to a contract of carriage of passengers is that of the country of habitual residence of the passenger, provided that the place of departure or destination is situated in that country.

In any event, if these conditions are not met, the law of the country in which the carrier is habitually resident shall apply.

Notes:

1. Art. 3, Law 18/12/1984 n° 975
2. Art. 5, Law, 18/12/1984 n° 975
3. Art. 3, Regulation (EC) No 593/2008
4. Art. 4, Regulation (EC) No 593/2008

Affiliate marketing is a business model whereby a company pays a commission to an affiliate for each sale or action generated through traffic sent from the affiliate’s own website or marketing channel. To be more clear, this is what happens: the affiliate promotes the company’s products or services through its website or through other channels: social media, email marketing or online advertising. If a user clicks on the affiliate’s link and makes a purchase or performs a specific action such as registration, the affiliate receives a commission on the sale or action performed. Affiliate marketing is, therefore, a business strategy of wide-ranging promotion through collaboration with websites or influencers and, at the same time, represents a profit opportunity for affiliate partners.

How to declare it

Flat-rate/simplified scheme

If you are an affiliate and have been granted access to the flat-rate regime, your taxation will be simplified compared to other forms of taxation. In fact, under the flat-rate scheme, taxable income is calculated on the basis of a flat percentage of turnover, without the need to file ordinary accounts.

As regards affiliate marketing, the income to be declared will consist of commissions received by affiliates. These commissions will be subject to the flat rate of 5 % or 15 % provided for by the aforementioned scheme.

As regards filling in your tax return, you will have to indicate, in the section on self-employment income, the nature of the income and the total amount of commissions received. In addition, you will have to fill in the RS box, which contains information on the tax regime adopted and the income to be declared.

In summary, if you are an affiliate and you are registered under the flat-rate scheme, your taxation will be simplified and the income to be declared will consist of the commissions received and subject to the flat rate of 5% or 15%. It is important to bear in mind that, according to the regulations, you cannot deduct expenses incurred for affiliate marketing activities in this status, but the regime does offer certain tax advantages and the possibility of benefits.

Sole proprietorship or partnership

Sole proprietorships and partnerships are further legal regimes that can be chosen, although they are different. In the former case, the VAT number is individual, whereas in the latter there may be one or more partners.

In terms of taxation, on the other hand, the two regimes are the same and we are talking about IRPEF taxation: as income increases, so does the amount to be paid in taxes. There are four different percentages that apply: 23%, 25%, 35% and 43%.

The first percentage is applied to income below 15,000€, the second for income from 15,001€ to 28,000€, the third from 28,001€ to 50,000€ and the fourth for amounts above 50,001€. However, as taxation is graduated, in the case of income of 30,000€, 15% will be calculated on 15,000€ and 25% on the remaining 15,000€.

Sole proprietorships and partnerships therefore allow tax to be calculated on a real margin, which is why the amount to be taxed is equal to the difference between income and expenses.

Remember, too, that you will have to keep track of the expenses incurred for affiliate marketing activities in order to be able to deduct the expenses incurred from your taxable income and reduce the tax payable.

Incorporated companies

If you own a corporation and engage in affiliate marketing, the applicable tax regime will depend on the legal form of the company.

If the company is an Srl (Limited Liability Company) or a SpA (Joint Stock Company), the income generated by affiliate marketing will be subject to corporate income tax (IRES), which currently has a rate of 24%.

The company will have to file a corporate income tax return (UNICO SC form), which contains all information on the income generated by the affiliate marketing, the expenses incurred and the applicable tax credits. In addition, the company will have to file a VAT return relating to the affiliate marketing operations carried out.

It is important to note that corporations may deduct expenses incurred for affiliate marketing from their taxable income. Such expenses include, for instance, advertising costs, website management costs and commissions paid to affiliates. However, deductible expenses are subject to limitations and restrictions and must be precisely documented.

Moreover, if the company transacts with affiliates located abroad, it may be subject to transfer pricing and cross-border transaction tax rules.

If, when I first started working with public administrations, someone had come along with an essential guide on how to get around public tenders and contracts, I would have been thrilled. With this I certainly do not want to promote a complete working tool (for that there are manuals to devote time to), but rather to outline a road map for those approaching the complex world of the public market.

The MEPA

Starting from the assumption that the purpose of a P.A. is to pursue interests of public importance, it is easy to understand how the market to which it turns must be transparent and strictly regulated, so as to allow anyone who is interested to collaborate according to the principles of equal competition and non-discrimination.  It is from this awareness that MEPA (Mercato Elettronico per le Pubbliche Amministrazioni – Electronic Market for Public Administrations) was born, the digital marketplace where the demand of the P.A. and the supply of qualified companies meet, all under the supervision of Consip, which manages exchanges within the platform on behalf of the Ministry of Economy and Finance. As with all purchases and sales, of course, the rules governing them have been differentiated by the legislator on the basis of the value of the goods being traded, which is why certain purely economic subdivisions have been provided for.

Direct contracting

Let us start with the first subdivision, the simplest, the one with the fewest obligations, which allows the parties to have some discretion to the advantage of greater bureaucratic lightness, which translates into greater efficiency: for purchases less than or equal to EUR 5,000.00, there is no obligation to purchase through the electronic system. This, translated into even more practical terms, means that no calls for tender or market surveys will be necessary to identify the ‘right’ supplier. First element to be clarified: 5,000.00 net of VAT or not? The reference value is to be calculated without VAT, which will therefore only be added to the committed amount at a later stage.

The simplified procedure for direct awards

Having said this, the RUP or the Manager who is about to make a purchase within the indicated threshold may approach the supplier he deems appropriate, observing only the rotation principle for the range between 1,000.00 and 5,000.00, while, if below the lower limit, he may also derogate from this principle by offering only a brief justification in the communication. For its part, the supplier may “win” the contract by signing a self-declaration attesting that as an economic operator it is upright and reliable (it has not been convicted of any criminal offences, is up-to-date with the payment of taxes and contributions, has not committed any infringements with regard to health and safety at work and other requirements under Article 80 of the Public Procurement Code). 

Our Manager, at this point, will only have to make sure to consult the ANAC register, to check the existence of the Durc at the time of signing, and to verify the subjective conditions or eligibility to contract with the P.A.. The checks referred to in Article 71 of Presidential Decree 445/2000, concerning the existence of the requirements declared in the self-certifications, are compulsory for the P.A. but can also be carried out on a sample basis, always in proportion to the risk and the extent of the benefit.

Once the verifications have been carried out with a positive outcome, the parties may provide for the drafting of the contract in a simplified form, also “by means of correspondence according to commercial custom consisting in an exchange of letters or by certified electronic mail or similar means” pursuant to Article 32, paragraph 14 of the CAP. The only prescribed obligation consists in the insertion, within the contract, of termination clauses in the event of non-existence of the declared requirements, to which may be added the provision of a withholding of the deposit or the application of a penalty not less than 10% of the value of the contract. 

Conclusions

In conclusion, I would like to share just one of my personal recommendations aimed at the maximum protection of the managerial positions that must sign public contracts: for each purchase below the threshold that is the subject of this article, it is recommended, however, the formation of small dossiers within which a number of estimates are inserted (ergo market surveys are carried out) to understand whether the price requested by the supplier from time to time identified is in line with the costs of the sector. 

Strongly inadvisable, on the other hand, is the splitting of blatantly one-off assignments in order to remain within the described range free of the compulsory tendering requirement. 

This constitutes the crystallisation of the essential points of the first public procurement/sales of goods and services band; by virtue of the smallness of the value this was conceived, as already pointed out, in a very linear and simplified manner. In the next article, we will already see how the steps are more closely articulated in relation to the MEPA, both for the practical management of the portal and for the various technical and regulatory requirements that one must be aware of.