1. What is a SEZ? Overview of the state of the art in the Italian legal system

When talking about Special Economic Zones (SEZs) we are discussing an instrument of recent conception (at least with reference to European and, above all, Italian legal systems), whose purpose is to facilitate and incentivise direct investment by foreign economic operators and, in this way, to stimulate the propensity for international trade also of local companies. SEZs, therefore, are geographic regions in which, in order to attract foreign investment with customs and tax incentives and with activity financing, economic legislation is in force that differs from that of the nation to which they belong.

In our country, the implementation of the aforementioned institutions has long been neglected by the public decision-maker; in fact, to date, only eight SEZs have been established on national territory, all located in the southern areas of the Republic; these are: ZES Abruzzo; ZES Calabria; ZES Campania; ZES Ionica Interregional Puglia-Basilicata; ZES Adriatica Interregional Puglia-Molise; ZES Eastern Sicily; ZES Western Sicily and ZES Sardinia. This confirms the thesis that sees in the instruments described their natural aptitude to act as a keystone for territorial economic development, especially in those areas considered disadvantaged with reference to the economic-social fabric and associated with low productivity and, therefore, stigmatised as unattractive to investment. The choice adopted by the public decision-maker regarding the location of SEZs in the south of the country is closely linked to an attitude that is emblematic of our Mezzogiorno (as demonstrated by the strategic importance of such a portion of the territory): its logistical vocation, supported by its geographical location as a natural platform at the centre of the Mediterranean Sea.

2. What is needed to create an SEZ? The discipline of the constitutive procedure

The regulatory source that governs the SEZs is that provided for by the Prime Ministerial Decree of 25 January 2018 No. 12, implementing Article 4, paragraph 3, of Decree-Law No. 91/2017, converted with amendments by Law No. 123/2017, containing precisely the Regulation establishing the SEZs, then supplemented by an annex in which the maximum surface area values of the SEZs for each Region are enshrined, which provides for the maximum extension, equal to 5,580 ha, for Sicily and the minimum extension, equal to 5,467 ha, for Campania.

The Decree, therefore, after having clarified, in Articles 1-2, the definitions and purposes of the institute, enunciates the necessary existence of specific requirements for SEZs to be established. According to the dictate of Art. 3 of the Decree of the President of the Council of Ministers No. 12/2018, in fact, SEZs must compulsorily be established in territories included in the so-called 'Port Areas', whose enjoyment of the benefits brought by the establishment of SEZs is also extended to the portions of territory economically connected to the aforementioned areas. The other necessary requirements for the establishment of SEZs are as follows: they must be established within state borders, in a geographical area identified for this purpose and well circumscribed; they can also be composed of territorial areas that are not directly adjacent to each other, provided that there is an economic-functional link between them; they must include a port area, connected to the Trans-European Transport Network (TEN-T), with the characteristics established by Regulation (EU) No. 1315/2013.

Article 4. of the Regulation, on the other hand, regulates the so-called "Interregional SEZs". Art. 4. of the Regulation, on the other hand, regulates the so-called "Interregional SEZs", stating that "a Region in which there is no port area and another Region in which there is at least one port area may jointly submit an application for the establishment of a SEZ"; furthermore, if they are contiguous, Regions that do not have any port area on their territory may submit an application for the establishment of a SEZ in associative form, committing one or more port infrastructures on their territories for this purpose, even if they are not included in the category of the so-called "Port Areas".so-called "Port Areas". Finally, for the establishment of inter-regional SEZs, the existence of an economic-functional link between the areas concerned by the SEZ to be established will be required as a further element.

Continuing in the analysis of the sector regulations, Articles 5 and 6 regulate the administrative procedure preparatory to the concrete constitution of the Zone for which, precisely, the formulation of the proposal for the institution of the SEZ by the interested Region will be necessary, accompanied by the presentation of a so-called 'Strategic Development Plan'; with the indication of the technical characteristics of the chosen area.  Applications for the establishment of an SEZ must be submitted, in compliance with the European regulations on State aid and in accordance with the forms established by the respective regional ordinances, to the President of the Council of Ministers, by the President of the Regional Council, having heard the Mayors of the areas concerned, in compliance with the requirements set out in Articles 3 and 6 of Prime Ministerial Decree No. 12/2018. Proposals for the establishment inherent to inter-regional SEZs will have to be submitted according to the same forms established for regional SEZs, but with a joint proposal of the Regional Presidents of the territorial entities concerned.

Once the procedural process related to the submission of the application is completed, the constitution of the Special Economic Zone, according to the dictate of Article 7 of Prime Ministerial Decree No. 12/2018, takes place through a decree of the President of the Council of Ministers to be adopted on the proposal of the Minister with delegated powers for territorial cohesion and in agreement with the Minister of Economy and Finance.  It is also recognised that the proceeding Regions are fully involved both in the process of implementing the Zones and in their governance.

3. Which are the tax benefits for economic operators?

Mention should also be made of the tax benefits provided for companies that decide to invest in the areas affected by the presence of a SEZ. Law No. 178/2020, in fact, introduced a 50 per cent reduction in income tax for companies that undertake a new economic initiative within the SEZs: pursuant to Article 1, paragraph 173 of the aforementioned law, the benefit operates starting from the tax period in which the new activity is undertaken and for the following six tax periods. Eligibility for this benefit is subject to compliance with the following conditions - the beneficiary companies maintain their activity in the SEZ area for at least 10 years;

- the companies retain the jobs created in connection with the activity carried out within the SEZ for at least 10 years.

The facility can only operate within the limits and conditions set out in EU Regulation No. 1407/2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted by a Member State to a single undertaking, the total amount of which may not exceed EUR 200,000 over three financial years.

In addition, Article 5 of Decree-Law No. 91/2017 extended the tax credit introduced by the 2016 Stability Law to investments made in SEZs; a tax credit that with Decree-Law No. 77/2021 was also recognised for the purchase of real estate instrumental to the investments, while the maximum limit for each investment project was raised to EUR 100 million. The intensity of the tax credit is related to the size of the investment, with differences depending on the region where it is made and the size of the company. The tax credit can be cumulated with de minimis aid and with other State aid concerning the same eligible costs, provided that such cumulation does not lead to exceeding the highest aid intensity or amount allowed by the relevant European frameworks. The total of the benefits must not exceed the investment. The tax credit, specifically, is determined by applying the prescribed percentages to the cost of the capital goods and decreasing the relevant result by the amount of aid granted or applied for in respect of the same investments. Those eligible for the ZES tax credit are persons with business income, identifiable under Article 55 of the TUIR, who invest in capital goods, including through leasing, intended for new economic activities located in ZES areas. Aid may be granted to SMEs for any form of initial investment, as well as to large enterprises only for an initial investment in a new economic activity in the area concerned (paragraph 3 of Article 14 of Regulation (EU) No 651/2014). Therefore, in the communication form to benefit from the tax credit, large enterprises making investments in assisted areas are requested to provide a substitute declaration pursuant to Articles 75 and 76 of Presidential Decree No. 445/2000 to certify that the investment project carried out or to be carried out relates to a new economic activity. Recognition of the above-mentioned facilities granted to economic operators must be subject to a number of conditions. These conditions are:

- the maintenance of economic activity in the SEZ for a period of at least 7 years (extendable up to a maximum period of a further 7 years, at the request of the Region, on the basis of monitoring results following the completion of the subsidised investment);

- the company involved must not be listed as being in liquidation or undergoing dissolution.

The relief does not apply to entities operating in the steel, coal, shipbuilding, synthetic fibres, transport and related infrastructure, energy production and distribution, and energy infrastructure sectors, as well as the credit, financial and insurance sectors. The relief also does not apply to companies in difficulty (as individualised in European Commission Notice 2014/C 249/01). For the ZES tax credit, entities operating in the agriculture and fishing sectors are also excluded from the benefit.

4. Purposes and future perspectives  

In conclusion, it can be considered that the purpose of setting up SEZs is certainly to experiment new forms of economic governance in certain areas, even those characterised by weak economic development, in which administrative procedures and procedures for access to infrastructures for companies that operate or that will set up within the areas are coordinated in order to allow for an integrated development project and to relaunch the competitiveness of the ports of the regions concerned. Despite this, analysing the state of the art, despite representing an absolutely important element to contribute to the innovation and development of the Italian economy, the real potential of SEZs remains to date not fully expressed and, indeed, there is a persistent tendency towards immobility on the part of those who should be spending more than others in giving the decisive push to the definitive implementation of these valuable tools.