Earlier this week (7 May 2025), the Italian Supreme Court (Corte di Cassazione) delivered its judgment No 11964/2025.
The case concerned a Luxembourg company that was originally incorporated in Italy as an Italian limited liability company. After transferring its registered office to Luxembourg and reconstituting under Luxembourg law, the company maintained its primary asset and activity in Italy – a real estate complex in Rome. The dispute arose when the company’s sole administrator in Luxembourg appointed a third party (someone not associated with the company) as general agent with broad powers to act on behalf of the company. This agent subsequently transferred the real estate to two Italian companies. The Luxembourg company then sued, claiming these transfers were invalid because the appointment of the third-party agent violated Italian corporate law provisions. The core question was whether Italian corporate law should apply to the acts of a company formally established in Luxembourg but whose main assets and activities remained in Italy.
The Court of Appeal of Rome ruled that Italian law applied under Art 25 of Law 31 May 1995 No 218, which provides that Italian law governs companies whose principal place of business is in Italy. Consequently, the Court of Appeal found the power of attorney invalid under Italian corporate law (Art 2381 of the Italian Civil Code).
Seeking an interpretation of the impact of the EU treaties rules on freedom of establishment on national PIL provisions, the Italian Supreme Court referred the question to the CJEU. The CJEU, with its judgment on the case No C-276/22, stated that Arts 49 and 54 TFEU must be interpreted “as precluding legislation of a Member State which provides generally for its national law to apply to the acts of management of a company established in another Member State but carrying on the main part of its activities in the first Member State”. Accordingly, the Italian Supreme Court overturned the decision, holding that Luxembourg corporate law – not Italian law – should govern the validity of the power of attorney granted to the third-party agent. Finally, as per Art. 14 Law No 218/1995, the Italian Supreme Court stressed that the determination of foreign law is conducted ex officio by the judge; for the purpose of identifying foreign law provisions, the judge may resort to any means, even informal ones, also valuing the active role of the parties, although the latter have no burden to indicate or provide documentary evidence of the foreign law deemed applicable.
The text of the judgment is available here.
On the topics addressed in the judgment, the readers of RDIPP may refer to:
Alberto Santa Maria, 1995, No 4, 1036 ff.;
Massimo V. Benedettelli, 2001, No 3, 569 ff.;
Francesco Munari, 2003, No 1, 29 ff.;
Serena Crespi, 2009, No 4, 869 ff.;
Fabrizio Vismara, 2010, No 3, 635 ff.;
Domenico Damascelli, 2015, No 4, 867 ff.;
Peter Kindler, 2015. No 4, 897 ff.;
Francisco Garcimartín Alférez, 2016, No 4, 949 ff.;
Sara Bernasconi, 2018, No 3, 635 ff.