From ZES to ZLR strengthened: an opportunity for the country in administrative simplification

By ASLA - Associazione degli Studi Legali Associati

di Stefano Zunarelli* and Alberto Pasino**

Bologna - Starting from 2017, our country has embarked on a path that culminated in an articulated and organic set of regulatory instruments aimed at offering companies important tax concessions and significant administrative and bureaucratic simplifications, which can be obtained in delimited territorial contexts.

The path was marked by the adoption of Legislative Decree 91/2017, which established the Special Economic Zones (ZES) to encourage the development of business activities in the less developed and transition regions of the country; from paragraphs 61 to 65 of art. 1 of Law 205/2017, which - by establishing the Simplified Logistics Zones (ZLS) - extended some of the facilities provided for the South by the aforementioned Legislative Decree 91/17 to the ports of Northern Italy and, finally, by art. 1 co. 313 of Law 160/2019 which, by modifying the regime contemplated by Law 205/17 with regard to the ZLS, substantially equated the ZES of the ZLS, which in fact by virtue of this provision took the name of enhanced ZLS. 

The legislator's initiative is part of an international framework that ascribes to the SEZs, which have grown in the world from 500 in 1997 to about 5,400 today, a strategic role in reacting to the growing international competition in attracting foreign investments, offering tax and customs benefits and administrative and bureaucratic simplifications in geographically delimited areas. 

The Italian ZES and ZLS reinforced do not fail to enhance the fiscal prerogatives, through the recognition of a tax credit commensurate with the share of the total cost of the assets acquired by 31 December 2022 within the maximum limit, for each investment project , of 50 million euros, obtainable in the ZES and in the reinforced ZLS, and the reduction of the income tax deriving from the performance of the activity in the special economic zone of 50%, a prerogative, however, recognized by art. 1 co. 173-176 of the 2021 Finance Law to the SEZs only. 

It should be noted that, since these are regional aid pursuant to art. 107 TFEU, a prerequisite for them to be drawn is that the company is established in an area identified by the Charter of regional aid 2014-2020 C (2014) of 16 September 2014 and subsequent amendments, the validity of which has been extended until as of December 31, 2021. However, the distinctive feature of the legislation in question is represented by administrative simplification. 

The discipline that regulates the SEZs and the two forms of ZLS gives rise, in fact, to a very significant innovation, inspired by the desire to introduce very wide exceptions to administrative law, in order to create, within them, the conditions for a very strong bureaucratization, with accelerated and simplified formalities, such as to constitute, in itself, a powerful engine of entrepreneurial attraction. Proof of this is the conferral of multiple powers and faculties, some of which are particularly penetrating, to the body called to govern it (organ of direction), including that of ensuring "the tools that guarantee the establishment and full operation of the companies present in the SEZ as well as the systematic promotion of the area towards potential international investors " (art. 4 co. 7 lett. a DL 91/17), in order to guarantee to the companies that settle there to benefit from  "derogating criteria from current legislation, simplified procedures and applicable special procedural regimes", aimed at "simplifying and accelerating the establishment, implementation and conduct of economic activity in the SEZs"  (art. 5 co. 1 letter a) Legislative Decree cit.).

Administrative simplification - in addition to relying on a substantial reduction of the ordinary terms contemplated with regard to, for example, VIA, VAS and AIA, AUA, landscape and building authorization as well as on the wide use of the simplified decision-making services conference procedure, also in this case, with a substantial reduction of the relative terms - is based on a clear governance model with predictable dynamics, it ascribes to a single subject exclusive competence to authorize the settlement in the SEZ / ZLS, it aims to make uniform the forms necessary for this purpose and requires the adoption of the measures necessary to make the telematic platforms used by SUAPs communicate with the other IT systems used by public bodies. The simplifications provided for by national legislation are added, moreover, to those that can be arranged at a decentralized level.

One of the more traits that distinguish the Special Economic Zones of an international nature, consisting in experimenting internally with different regulatory regimes compared to those in force in the country in which they are established, has therefore resulted in Italy in a process aimed at sterilizing the effects of inefficiencies and poor quality of services provided by the Italian bureaucracy, whose impact on the growth of our country has been estimated at a loss of about 70 billion of GDP, making Italy slide, in international comparison, to the third last place of the 36 OECD countries.

After the establishment of the first four SEZs (Calabria, Campania, interregional Ionian Puglia and Basilicata and interregional Adriatic Puglia-Molise) and the Genoa ZLS, which took place between 2018 and 2019, there is now great excitement in the rest of the country. In most of the Regions there is a concrete interest in starting the path to establish a strengthened FTA, which seems to prelude the emergence on a national scale of the phenomenon of SEZs and FTAs. If and when this process is completed, a differentiated administrative regime will be implemented only for the areas included by the regions in the SEZs, in the FTAs ​​and in the reinforced FTAs. In these areas, in fact, the administrative procedures will be governed by the rules outlined by the aforementioned provisions establishing the SEZ and ZLS, as well as by the detailed tools adopted by the individual regions. Outside of them, that is, throughout the rest of the country, companies will remain bound by ordinary administrative rules.

The risks that will be run in the short term - first of all the exasperation of the competition between SEZ / ZLS (i.e. between regions) in grabbing foreign and domestic investments, based on the lever of administrative simplification - can be compensated if what is every regulatory experimentation promises, ie the extension outside the SEZ of the regimes subject to testing (this is what happened in the case of the Polish SEZs). However, in order for the excellent prospect of pursuing, through the instrument of regulatory experimentation, the strategic objective of administrative simplification to be accompanied by a harmonious growth of the economy of the entire country, a strong coordination intervention by the Government will be indispensable, through the exercise of the prerogatives that the law ascribes to it, first of all a particularly penetrating evaluation by the Government of the strategic development plans that must accompany each request for the establishment of reinforced SEZs and ZLS and the exercise of a dynamic coordination activity by the control room contemplated by art. 5 co. 1 letter a-quater Legislative Decree 91/2017.

* Professor and Lawyer
** Lawyer, Zunarelli Studio Legale Associato