Research & Development

The Regional Administrative Court of Lazio disapplies the Frascati Manual for the five-year period 2015-19

Administrative courts note the non-retroactivity of lower-ranking rules

by Emanuele Reich and Franco Vernassa

30 July 2025

2' min read

Key points

The case
The position of the Tar

2' min read

The Manual of Frascati does not apply to the research and development tax credit for the five-year period 2015-2019. Decisive stance taken by the Regional Administrative Tribunal of Lazio in its ruling of 29 July 2025, which assumes its competence in relation to a denial measure by Mimit concerning the certification, provided for by Article 23 of Decree Law 73/2022, of the research and development tax credit.

The case

A company challenged the order by which Mimit held that the activities carried out were not eligible forthe tax credit for research and development activities (Article 3, DL 145/2013) accrued in the tax years 2017, 2018 and 2019 and therefore denied the validity of their certification issued under Art. 23, paragraph 2 of Decree-Law 73/2022, noting the absence of three of the five fundamental requirements envisaged by the Frascati Manual and recalled by the 2024 Guidelines, namely novelty, systematicity and reproducibility of the innovation.

The company's appeal was based on four points, of which the relevant ones are:

violation of the principle of non-retroactivity and of the hierarchy of regulatory sources, in that the contested measure applies the more restrictive criteria introduced by the Prime Ministerial Decree of 15 September 2023 and by the Ministerial Decree of 26 May 2020, which define new procedures for the qualification and certification of research and development activities, instead of the criteria provided for in Article 3 of Decree-Law No. 145 of 2013 and by the Ministerial Decree of 27 May 2015, in force for the 2017-2019 tax periods subject to certification;
the illegitimate retroactive application of the interpretative criteria above, taken from the Frascati Manual and incorporated in the new 2024 guidelines, which were not in force or cognizable in the 2017-2019 period, in violation of the legislation applicable at the time;

The Regional Administrative Court recalls that Article 23 of Decree-Law 73/2022 introduced the possibility for companies to request a certification attesting to the qualification of the investments made (including those in the 2015-2019 period) or to be made, classifying them as research and development activities, with 'binding effects' vis-à-vis the tax authorities in the event of a positive result.

The question is relevant since it is debated whether the criteria set forth in the Frascati Manual can be applied fortax periods prior to those that sanctioned its official adoption (Law 160/2019 for tax periods 2020 and onwards).

The position of the Tar

The TAR affirms that the eligibility of the tax credit recognised on the basis of Article 3 of Decree-Law 145/2013 (and of the implementing Ministerial Decree of 27 May 2015) must be assessed exclusively in the light of the legislative framework in force in the tax period of reference, also taking into account that the consolidated administrative practice up to 2019 has never contemplated recourse to the criteria of the Frascati Manual; even Circular 5/2016, which provided the first clarifications, referred back to a 2009 Mise Circular that cited only the Oslo Manual. These interpretative documents emphasised that the purpose of the facilitation was:

that of supporting the enterprise's commitment to improving processes and products, increasing the competitiveness of the economic system;
and not that of contributing to the increase of the stock of scientific or technical knowledge at a systemic level, a requirement instead envisaged by the Frascati Manual to qualify an activity as research and development.

The Regional Administrative Court then emphasised that if the Administration had changed its orientation, this could not be used in its favour; "on the contrary, the samerevirement supports the exact opposite thesis, i.e. the original non-applicability of the criteria of the Frascati Manual".

It follows that, according to the Regional Administrative Court of Lazio, the retroactive application of the Frascati Manual cannot be based on Article 3(5) of the Prime Minister's Decree of 15 September 2023 and its implementing Guidelines, since they are norms of a merely regulatory nature (principle of non-retroactivity of tax rules).