On the waiver agreements of the liability action against directors
In the sale and purchase agreements clauses by which the purchaser, who will assume the company’s control, undertakes not to vote in favour of the exercise of the liability action pursuant to Article 2393 of the Italian Civil Code, as well as not to bring any liability action against the resign...
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Data processing for marketing purposes: the protection of legal entities
By order No. 4 of 12 January 2017, the Italian Data Protection Authority set out the discipline on  personal data processing for marketing purposes, finding the unlawfulness of both the processing of  data collected through forms available on websites and the processing of data (namely, tel...
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Multi-stakeholder enterprises according to the Italian benefit corporation legislation
The benefit corporation model The benefit corporation legislation, introduced by stability law 2016, and dedicated to corporations having among their purposes tha...
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16/03/2017

The Luxembourg Presidency of the EU Council of Ministers announced, on 7 December 2015, that it had reached an informal agreement with the European Parliament on the text of the proposed Directive on Network and Information Security Directive (‘the NIS Directive’). Once adopted, companies doing business in critical infrastructures, such as energy, transport, health and banking, will have to implement security measures and notify public authorities in cases of serious cyber incidents.
Rocco Panetta, Partner at NCTM Studio Legale, commented, “This last obligation seems to be the most innovative aspect, since currently, a large number of incidents do not reach the competent authorities, and go unnoticed. Should the proposed NIS Directive being approved, public authorities will be in a position to react, take the appropriate mitigating measures and set adequate strategic priorities. [Inadequacy in] security of network and information systems can compromise vital services and cause substantial financial losses for the EU economy, estimated in a range between €260 and €340 billion annually.”

The agreement was also welcomed by Andreas Schwab, member of the European Parliament (‘the Parliament’) and Rapporteur on the NIS Proposal, who told DataGuidance, “The EU becomes a common safe cyberspace in the offline and online world. Today a milestone has been achieved: for the first time, the NIS Directive introduces EU-wide cybersecurity rules, which the Parliament has asked for years. Member States (MSs) will now have to raise their resilience and capacities to a common level, and the Parliament has furthermore strongly pushed for a close, structured cooperation between them. This achievement is even more important in light of the current security situation in Europe.”

“Today a milestone has been achieved: for the first time, the NIS Directive introduces EU-wide cybersecurity rules.”

Although deeming the NIS Directive a big step in the development of a culture of risk management, Panetta noted, “We [still] have to wait for the final approval of EU institutions and the subsequent implementation in the legal framework by each MS, as the NIS Directive contains some ambiguous provisions and equivocal definitions. [In fact, it establishes that] only incidents that seriously compromise ‘the operation of network and information systems and thus having a significant impact on the continuity of services and supply of goods which rely on network and information systems’ will need to be reported to the national competent authority, and this is likely to require organisations to implement a level of capability deemed ‘appropriate’ to the risks that they face. [However,] neither the term ‘appropriate’ nor ‘incidents of significant impact’ are defined in detail by the NIS Directive.”

The provisionally agreed text will now need the formal approval by the Internal Market Committee and the Committee of Permanent Representatives, the latter likely to be sought on 18 December 2015. It will then require the formal approval of the Council of the European Union and the Parliament.

25/05/2017
Administrative & European Public Law

Following the adoption of the Campania Administrative Regional Court and the consequent actions of the Prosecutor of the Republic of Naples, the eviction of about 1000 abusive occupants of an area of almost 18 hectares located in Naples East. Galileo Ferraris 160 S.r.l. (Hereinafter Galileo Ferraris), a company active in the sale of real estate, could thus be included in the availability of its property.
Nctm Studio Legale has assisted Galileo Ferraris, both in front of the Campania Administrative Regional Court and legal issues related to the eviction process, with a team led by Marco Monaco, assisted by Carmine Morrone and Rossella Vaiano.

 

 

25/05/2017
Mergers & Acquisitions, Private Equity - Banking & Finance Law

Nctm Studio Legale with equity partners Simone De Carli and Eugenio Siragusa assisted by Giulio Della Casa and Martina Marmo assisted the Ambienta SGR and Tattile Srl, the leading company in the creation of intelligent vision systems, in the acquisition of Chromanses GMBH and In the debt consolidation of the Lakesight Tecnologies Holding group.
The Crédit Agricole Cariparma and Banco BPM banks were assisted by Pedersoli Studio Legale with the equity partner Maura Magioncalda, Consuelo Citterio and Nicola Nocerino.
German law profiles were followed by the law firm Pollath Partners for the company and the law firm Noerr for the financiers, while CBA studies with Giuseppe Galeano and KPMG Germany concerned the tax aspects and the structure of the transaction.

18/05/2017
Supreme
Intellectual Property Law

Nctm Studio Legale has successfully advised Supreme, the American iconic streetwear brand in the first instance and appeal interim proceedings for counterfeiting and unfair competition before the Court of Milan, specialist business division, obtaining for the first time in an European country the acknowledgment of the reputation of a trademark. The interim action was made necessary to thwart a counterfeiting network operating between San Marino, Italy and the United Kingdom.

The team of Nctm Studio Legale was led by Paolo Lazzarino, with the assistance of Roberto Cesaro and Maddalena Moro.

26/04/2017
Banking & Finance Law - Energy Law

Nctm Studio Legale and Gattai, Minoli, Agostinelli & Partners have advised, respectively, MPS Capital Services Banca per le imprese, as arranger bank, and the vehicle company and sponsors, in the project financing transaction for the financing of the 10 MW wind farm of Marche Energie Rinnovabili (Fortore group) located in the Municipality of Apecchio, Marche Region.

The team of Nctm Studio Legale was led by Eugenio Siragusa, while the team of Gattai, Minoli, Agostinelli & Partners was led by Giovanni Santangelo with the assistance of Flavia Bertini.

 

20/04/2017
Banking & Finance Law - Mergers & Acquisitions, Private Equity

Law firm Dentons has advised the pool of banks made up of Banca Popolare di Milano S.p.A., Banco BPM S.p.A., Iccrea BancaImpresa S.p.A. and Banca di Udine credito cooperativo in the financing to the company Mar-ter Spedizioni S.p.A, advised by Nctm Studio Legale.

Dentons team was made up of Alessandro Fosco Fagotto, partner, and by Tommaso Roberto Maria Zanirato and Rosalba Pizzicato. Nctm team in charge of the finance part was led by Giorgio Telarico, salary partner, with the assistance of Martina Marmo and Lucia Vittoria Lonoce, while the team in charge of the acquisition was led by Miranda Cellentani, salary partner, with the assistance of Clitie Potenza.

The medium-long term cash loan in favour of Mar-Ter Spedizioni S.p.A. is earmarked, in part, for the restructuring of the financial position of Mar-Ter Group and, in part, to support the financial requirements connected to the acquisition of 100% of the corporate capital of Res Immobiliare S.p.A.

Mar-ter Spedizioni S.p.A., a group leader in port logistics with a presence in Europe, America, Middle East and North Africa, 76% owned by Mid Industry Capital, operating in the ports of Livorno and Monfalcone, can provide all port services, freight management, import, export, road and rail transport.

11/04/2017
Sinergest, Moby, Ltm, Marinvest (Msc)
Corporate & Commercial Law - Marine, Transport & Logistics

Nctm Studio Legale has advised the Temporary Grouping of Companies (Raggruppamento Temporaneo di Impresa) (hereinafter “RTI”) composed of Sinergest, Moby, Ltm and Marinvest (Msc) in the acquisition of 66% of the stake in Porto 2000, the company that manages the maritime passenger station and the cruise terminal within the Port of Livorno.

RTI’s offer, with an investment of about 100 million euros, won out over the other two groups composed of Creuers of Port de Barcelona (Global Port Holding) with tour operator Aloschi and CFG Cruise & Ferry Group with the two auxiliary companies  Grimaldi Euromed Spa and Costa Crociere.

The award is provisional, pending the usual preliminary phases before the final awards.

With regard to the legal aspects of the transaction, the Temporary Grouping of Companies was advised by Nctm Studio Legale with a team led by Alberto Torrazza and by Studio Cimmino Carnevale De Filippis with Counsel Beniamino Carnevale.

10/04/2017
ALS Global Ltd
Mergers & Acquisitions, Private Equity

Nctm Studio Legale has advised ALS Global Ltd (hereinafter “ALS”), an Australian multinational leader in the certification of products and services, in the acquisition of the entire corporate capital of Leochimica S.r.l. (hereinafter “Leochimica”), an Italian company engaged in the field of food and environmental safety.

By this transaction ALS has expended in the Life Science sector, extending its offer in the field of food and environmental certification.

ALS Global Ltd was advised by Nctm Studio Legale with a team led by Alice Bucolo and by Studio Havel, Holásek & Partners s.r.o. with a team led by Koval and Silvie Király.

Studio Bigattin Stefanuto e Associati has advised Leochimica S.r.l. with a team led by Tiziano Bigattin.

29/03/2017
Triboo Digitale Srl
Mergers & Acquisitions, Private Equity - Capital Markets

Nctm Studio Legale has assisted Triboo Digitale Srl, a subsidiary of Triboo SpA, listed on AIM – the Alternative Capital Market,  acquiring a stake of 51% of the share capital of E-Photo Srl, a company which made photographic production for the e-commerce, for a value of 990,000 euro, in addition to part of variable operating results in 2017 and 2018.
Nctm Studio Legale has assisted Triboo Digitale Srl, with a team led by Lukas Plattner, assisted by Eleonora Sofia Parrocchetti.

 

29/03/2017
Administrative & European Public Law

Nctm Studio Legale has been chosen by the state domain agency, Real Estate Strategies and Innovation Management, as a specialized legal advisor to assist the municipality of Castel San Pietro Terme, as the Municipality Leader of seven other local authorities, for the entire selection procedure and identification of the person in charge of the establishment and future management of a real estate fund to be set up through an SGR.

The Society of Asset Management (SGR) will set up and manage a real estate fund, financed in part by a contribution of the Ministry of Education. The project includes both the recovery and the creation of educational complexes that meet needs that emerged from an analysis of users’ future development, is the simultaneous divestment of properties not used, belonging to the estate of the different municipalities, which will be made to the Fund.

Nctm will assist the state domain agency and the City of Castel San Pietro Terme with a team led by Marco Monaco.

22/03/2017
Energica Motor Company S.p.A.
Capital Markets

Nctm Studio Legale assisted Energica Motor Company S.p.A., the first Italian manufacturer of electric sports motorcycle, listed on the AIM – the Alternative Capital Market – of the Italian Stock Exchange, in the accelerated bookbuilding procedure.
The transaction, for a total value of 2.27 million euro, had as counterparts qualified investors in Italy and institutional abroad.
Energetic Motor Company S.p.A., was advised for the legal aspects by Nctm Studio Legale with a team led by Lukas Plattner.

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

State aid: European Commission widens the scope of the 2014 General Block Exemption Regulation, simplifying rules for public investment in ports and airports

The European Commission has widened the scope of the 2014 General Block Exemption Regulation, introducing a new exemption from the obligation to notify state aid measures to the Commission for maritime ports, inland ports and airports. The main conditions for such exemption are the following:

– The aid cannot exceed a certain absolute threshold (between €40 million and €150 million), depending on whether the project concerns a maritime port or an inland port and whether the port is included in a core network corridor under the TEN-T Regulation.

– The aid does not go beyond what is necessary to trigger the investment, taking into account future revenues from the investment (i.e. aid can only cover the “funding gap”).

– Only a certain percentage of the investment costs can be subsidized (depending on the size and the nature of the investment and on whether the port is located in a remote region).

– Only investment costs are eligible for aid (with the exception of dredging, for which both investment and maintenance costs are eligible for aid).

– Concessions to third parties for the construction, maintenance, operation or rent of port infrastructures must be assigned on a competitive, transparent, non-discriminatory and unconditional basis.

For small projects in ports, the Regulation lays down more flexible rules for investment aid.

Please find a more in-depth analysis in our next issue.

Is UBER a digital platform or a transport service?

The Advocate General of the EU Court of Justice handed down his opinion on this issue on 11 May. The opinion is not binding on the judges but the judges follow the Advocate General’s advice in up to 80% of the cases before the Court.

The Advocate General believes that UBER while having some aspects of a digital platform is a transport service company and thus is subject to the rules and constraints on transport. It needs to get the necessary authorisations and licences from the different Member States. Since the start of the case UBER changed its practices and now only uses licenced drivers and so a judgment could be considered to have limited impact. However, it may also have a long term impact on what labour or tax rules apply to UBER itself and its employees/drivers.

The case originated in Barcelona where the local taxi drivers association brought a case against UBER claiming that it competed unfairly by using unlicensed drivers.

Tough times ahead for UK car exports?

A hard Brexit would mean that UK car exports to the EU would face a 10% tariff. In today’s car market with very tight margins that is a big deal. But it gets more complicated than that. If there is a free trade agreement between the UK and the EU that would remove tariffs one of the conditions would be that the car actually come from the UK. In other words, the cars would have to have a UK origin. It appears that only 41% of the parts that make up cars originate in the UK with much of the rest coming from the Continent. To get around these percentages the UK will have to have special rules on the origin of cars in the agreement.

This is just one product and designing rules of origin for cars will be complex. There are about 40,000 goods being traded between the UK and the EU. If a deal needs to be done on each one then the negotiations will not be completed in the short term.

Brexit and peripheral maritime regions

You know what Brexit is. Did you know what the peripheral maritime regions are and that they have a grouping? There are about 150 peripheral maritime regions in the EU with a population of as much as 200 million. The organisation is concerned with Brexit. Take Normandy. Normandy has the biggest number of second homes owned by Brits and the UK is northern France’s third largest export market. The same can be said for most North Sea and English Channel regions but also the Basque region and the like. Maritime regions are shouting. However, the way things stand today there is not much they can do.

No Laptops on planes?

Is this good or bad news? The US has banned brining laptop computers onto airplanes coming into the US from 10 airports in the UAE, Saudi Arabia, Qatar and Turkey. The ban covers a series of middle eastern airlines but does not yet cover US airlines. It is rumoured that the ban will be extended to a number of EU origins. A lot of questions have been asked about the ban. Is the problem one of airlines or origins. And if it is origin why some airlines and not others. A second important question is whether the ban would be effective. If a bomb can be concealed in a laptop computer it does not make much difference if the laptop is in the passenger area or in the hold.

This all being said; frequent fliers might actually welcome the ban. It might make for some downtime, a period when you don’t have to work and don’t have to feel awkward about not working. Work still needs to be done and time will have to be found to do the work but plane time might take up a meaning of thinking outside the laptop box.

Singapore ruling has important maritime impact

Who gets to decide what on MARPOL or on Brexit? Normally when sovereign states negotiate and reach a deal it is the two states that ratify the deal according to the different national procedures. For the UK it’s pretty straightforward (if you think that Scotland and Northern Ireland and Wales have no say, at least politically). Parliament in London decides. But what about the EU. Is it just the Commission that negotiates and the Council and the Parliament that decide?

This was the question the Court of Justice in Luxembourg (the EU’s supreme court) had to decide in relation to the deal concluded between the EU and Singapore. How should the EU ratify the deal. The Court ruled that because the deal impacted certain EU Member State policies and rights, it needed to be ratified not only by the Council and Parliament (on behalf of the EU) but also by the 28 member states. This makes ratification difficult. And opens the UK up to difficult negotiations on Brexit. Could Spain veto a deal unless there is agreement on Gibraltar?

There is some good in all this particularly in the transport sector. The Court has bent over backwards to limit the policy areas where Member States get an input. In other words, it would be possible to craft a deal that would leave out those areas were the Member States have to sign.

The Court ruled, differently from the earlier advice from the Advocate General, that transport services come within the exclusive competence of the EU. This could have a big impact on how the EU interacts with MARPOL and various maritime agencies. So plenty to think about.

China’s One Belt One Road Programme

China has promised to invest up to 1 trillion RMB in infrastructure projects in building the new silk road and opening up the route to markets in Asia, Africa and Europe. This is a lot of money. The question is not so much the projects that will be financed but who will undertake the projects. In other words is the programme open to non-Chinese enterprises. At first sight it does not appear so. China not opened its domestic infrastructure market to competition by joining the WTO Government Procurement agreement and does not allow foreign enterprises to compete in China. It is expected that these same domestic exclusions will apply to the spending on the One Belt One Road projects wherever they are located.

Once the routes have been built then the question will be which way will trade flow. It is expected that the vast majority of the flow will be from China out and there will be very little trade from outside into China. This is because China closes its market to foreign goods and discriminates against them.

The One Belt One Road initiative can bring immediate local benefits. Care must be taken to make sure that bigger considerations are not lost when evaluating local gains.

 

 

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

The environmental issues related to the presence of an airport in a given area are often in the spotlight, given their importance and huge impact on the ecosystem and the population.

The extent of noise generated by aircraft depends on different factors, including, inter alia, the architecture of the airspace (i.e. the take-off and landing routes of an airport), the operational procedures adopted to follow the assigned routes, aircraft emissions, the engine test and the nuisance caused by connection means and induced road traffic.

In Italy, the matter is regulated by numerous orders setting out the main courses of action:

  1. characterising the land surrounding the airport by identifying 3 areas, defined as A, B and C, subject to specific restrictions in their intended use;
  2. setting noise limits to be complied with by the infrastructure in each area;
  3. applying a specific method to measure air transport noise;
  4. setting, for each airport, anti-noise procedures to be followed by aircraft during landing and take-off as well as during ground operations;
  5. implementing and managing an airport noise monitoring system to ensure compliance with limits;
  6. limiting night-time air traffic;
  7. imposing the implementation of improvement measures.

It is precisely in this context that “IRESA”ß, the Italian regional noise emissions tax for civil aircraft, should be framed.

Basically, IRESA is a special purpose tax introduced in 2001, aimed at reducing noise pollution in airport surroundings.

The tax is imposed on airlines taking off and landing at and from civil airports situated in the Regions’ territory.

The tax base is set according to the number of landings and take-offs as well as according to aircraft weight and noise based on International standards on noise certification. The tax is based on aircraft noise emissions and its amount varies according to the extent of such emissions.

The amount due is calculated by tons based on landings and take offs over a three-month period. Revenues from IRESA are – or should be – expressly earmarked for the implementation of extensive noise monitoring and acoustic depollution systems, the general improvement of living conditions in the areas affected by airport operations and any compensation for people damaged by noise emissions caused by aircraft landing and take-off.

IRESA has recently been in the spotlight again as a result of a ruling made by the Provincial Tax Tribunal (First Division) of Rome on 16 December 2016 in case No. 28862 on a tax refund claim filed by a private air operator.

In particular, the Commission found that Lazio Regional Law No. 2/2013 –  by which IRESA was introduced in Lazio – is clearly in breach of Law No. 342/2000 as well as of Legislative Decree No. 13/2005, implementing Directive 2002/30/EC.

More specifically, under the above-mentioned national and EU provisions, the receipts from said tax should be allocated to the management and reduction of the social costs associated with aircraft noise emissions (e.g., airport monitoring systems). The tax judges however found that the Lazio Region, considering there was no restriction in terms of allocation of the tax, used the tax proceeds for its own financial needs rather than for the purposes for which the tax was introduced. Only 10% of IRESA was indeed allocated to the environmental and social purposes identified at national and European level.

The reason for this is that IRESA, despite being a regional tax, was introduced by national and EU laws, whose purposes and objectives must always be complied with and pursued.

Acknowledging the Lazio Region’s failure to comply with said principles and objectives, the Tax Tribunal ordered the disapplication of the tax and the cancellation of the challenged payment notices.

Now, it is clear that any airline company operating in the Lazio Region might start a procedure for disapplication of IRESA based on the above decision.

If the view of the Tax Tribunal of Rome were to be confirmed, the Lazio Region would certainly be compelled to significantly redesign its budget policies. When one considers that, from 2013 to date, 90% of the proceeds from the tax were allocated to different purposes (such as the regional health service) and that the estimated revenues from IRESA were calculated at 55 million EUR   from 2014, the calculation is soon made.

The same can be said for other Regions, which, despite applying the tax, held themselves not bound by any obligations in terms of its allocation and thus acted accordingly.

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

Let’s look at two recent rulings of the Italian Supreme Court concerning, respectively, the right to sue a carrier at sea for damage caused to the transported goods and the gross negligence of a land carrier in a case of “container exchange”.

  1. Right to sue a carrier at sea for damage caused to the transported goods

As is well known, the Bill of Lading is a document acknowledging receipt of the goods being shipped that can be transferred by endorsement and entitles its holder to obtain delivery of the goods at the port of discharge.

The Italian Supreme Court[1] has recently reiterated that the holder of a Bill of Lading acting against the carrier, as mere representative of the receiver, to claim compensation for the damage suffered by the shipped goods during transport, has no capacity to sue if the B/L has not been endorsed to the same by the receivers.

The case referred to the Italian Supreme Court was exactly about a claim for damages brought by the Policyholder who, at the time of delivery of the goods, acted as mere representative of the receiver with a bill of lading that was not specifically endorsed to the order of the Policyholder.

Although the Court of First Instance upheld the claim for damages brought by the Policyholder, the Court of Appeal of Genoa[2] overturned the first-instance ruling, rejecting the claim for damages at issue in light of the claimant’s lack of title in the substantive relationship (actually resulting from the B/L) submitted in the case.

The Italian Supreme Court has essentially confirmed the decision of the Court of Appeal of Genoa, stating that “The holder of a Bill of Lading, who, as mere representative of the receiver, upon delivery of the goods asserts its right to compensation against the carrier as a result of the damage caused to the goods being transported, lacks title in the substantive relationship if the policy has not been endorsed by the receiver to the order of the policyholder”.

The Supreme Court further established that “the territorial court has correctly denied that the holder of the Bill of Lading had grounds for claiming damages, since such a relief is available only to the receiving company, which is the owner of the cargo”.

  1. A case of gross negligence of a land carrier

The Supreme Court [3] has considered the liability of a land carrier in the case of a “container exchange”.

In a nutshell, a shipper sued both the shipping agent and the land carrier (in charge of carrying a load of musical instruments from Rimini to the Port of Ravenna) claiming compensation for the damage suffered as a result of the total loss of said load.

Indeed, the goods were mistakenly loaded inside a container other than the one indicated in the consignment note. As a consequence, the container with the goods in question was dispatched to Algeria instead of Japan where the goods should have been delivered.

At first instance, the Court of Milan accepted the claim for damages and such decision was substantially confirmed also by the court of second instance[4]. In particular, the Court of Appeal, noted the gross negligence of the land carrier for not checking the correspondence between the container indicated in the consignment note and the one in which the goods were actually loaded.

The Italian Supreme Court confirmed that, in the case at hand, there was the sole responsibility of the land carrier for not checking that the goods were loaded into the container in which they ought to be actually stored, since the land carrier was the only one aware, on the basis of the consignment note, of the relevant identification data necessary due to the presence of another container heading for a different destination.

According to the Italian Supreme Court, the foregoing activity of control – which was to be carried out, anyway, in the wake of the loading phase and, hence, when the goods were already available to the land carrier – was by no means extraneous to the carriage performed by the land carrier, but was to be considered as one of those obligations ancillary to the performance of said contractual relationship necessary to attain the practical results expected by the parties, also taking into account the principles of good faith and fairness.

In the light of the foregoing, the Italian Supreme Court held the land carrier responsible for the loss of the goods, and ordered it to compensate damages arising therefrom it.

[1] See Italian Civil Supreme Court, Third Div. , case no. 6044, 9 March 2017.

[2] See Court of Appeal of Genoa, case no. 1187, 16 July 2014.

[3] See Italian Civil Supreme Court, Third Div., case. no. 6483, 14 March 2017.

[4] See Court of Milan, 7 January 2009; See also the Court of Appeal of Milan, case no. 2056, 20 May 2013.

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

Let’s talk about two court judgments which, although coming from foreign jurisdictions (UK and Spain), are of particular interest in practical terms as they concern two international Conventions – namely, the Hague-Visby Rules and the CMR[1] – applying to most of international carriage by road and sea[2].

Are the Hague-Visby Rules applicable also in the event that a waybill is issued in lieu of a bill of lading?

As a matter of fact, a precondition for the applicability of the Hague-Visby Rules is that a shipment is covered by a bill of lading.

English Courts recently adjudicated on a case[3] in which the parties – after entering into a contract of carriage providing for the issue of a bill of lading in due course – agreed to issue a sea waybill in relation to the same sea carriage. The choice to switch from a bill of lading to a sea waybill was dictated by contingent reasons, i.e., the desire to avoid any problems with the delivery of the goods as a result of any delay in the transmission of the bill of lading.

More specifically, the Court found the Hague-Visby Rules applicable since the contract of carriage was covered by a bill of lading, while deeming of no relevance the circumstance of the parties having agreed upon the issue of a document in lieu of a bill of lading after entering into the contract.

Hence, the contract of carriage was covered by a bill of lading within the meaning of the Hague-Visby Rules, and such rules were applicable, with all the ensuing consequences in terms of the carrier’s limitation of liability.

In conclusion, the judgement confirms a well-established view of Italian case law: failure to issue a bill of lading has no relevance for the purpose of excluding the applicability of uniform rules whenever a contract of carriage is entered into which involves the carrier being required, depending on circumstances and applicable maritime uses, to issue a bill of lading.

The “gross negligence” of the carrier according to the Spanish Supreme Court.

As is known, the Convention on the Contract for the International Carriage of Goods by Road (CMR) regulates international carriage by road.

Article 23 of the CMR provides for the carrier’s limitation of liability (i.e. 8.33 units of account per kilogram of gross weight short). Article 29 of the Convention however provides that such limitation does not apply “if the damage was caused by his [the carrier’s] wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct”.

What is then the meaning of “default equivalent to wilful misconduct”?

The Italian Civil Code identifies such default as “gross negligence”. Indeed, as regards national carriage by road, Article 1696 (of the Italian Civil Code) on the one hand sets the carrier’s limitation of liability at 1 euro per kilogram of gross weight of lost or damaged goods and, on the other hand, expressly excludes the applicability of the carrier’s limitation of liability in case of its wilful misconduct or “gross negligence”.

The issue of the interpretation and applicability of Article 29 of the CMR arises from the circumstance that the concept of “gross negligence” does not exist in Spanish law. As a matter of fact, Spanish law only distinguishes between “wilful misconduct” (“dolo”) and “negligence” (“culpa”), depending on whether or not there is an intention to damage.

A recent judgement of the Spanish Supreme Court[4] shed light on this issue, stating that “the circumstances that concurred during the cargo theft (parking in a dangerous location, accessible and with no surveillance, weak protection of merchandise on a trailer covered by canvas and absence of surveillance on the part of the driver) can be interpreted as wilful miscondcut in the behaviour of the carrier, due to failure to comply with his safekeeping basic duties: that will justify not to apply the quantitative limits ruled in Article 23, to be read in conjunction with Article 29 of the CMR”.

The Spanish Court therefore held that the circumstance of a carrier being aware that goods may be stolen as a consequence of its conduct is sufficient to deny its right to limited liability as provided for by CMR.

The Spanish Supreme Court therefore identified the so-called “default equivalent to wilful misconduct”, which prevents the applicability of the carrier’s limitation of liability under Article 23 of the CMR. In light of said judgment, in Spain a carrier is prevented from invoking such limitation of liability whenever it intentionally fails to comply with its safekeeping obligations under the contract, irrespective of whether there is or not intention to damage (wilful misconduct).

 

 

[1] Convention on the Contract for the International Carriage of Goods by Road.

[2] Such international Conventions may also apply to carriage contracts entered into by Italian companies.

[3] Kyokuyo Co Ltd v A P Møller-Maersk A/S [2017] EWHC 654 (Comm).

[4] Spanish Supreme Court No. 399 of 10 July 2015 (reference should also be made to judgement No. 382 of 9 July 2015 of the same Court).

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

With regard to State aid, the European Commission has recently extended the scope of the General Block Exemption Regulation by introducing a new exemption from the obligation to notify State aid measures for maritime and internal seaports and for airports[1]. Since this exemption concerns only one of the many shipping sectors and the principles of the European Court of Justice (hereinafter “ECJ”) regarding State aid still stand for the other sectors, we consider it useful to analyze two major decisions of the ECJ on State aid to shipping companies.

The ECJ has recently issued two crucial decisions[2] on State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (hereinafter “SGEIs”).

The two cases concern compensation received, respectively, by SNCM and Saremar for the provision of services of general economic interest as regards maritime links to islands.

EU law on SGEIs

The European Commission Decision of 20 December 2011 (hereinafter the “Decision”) regulates the application of Article 106(2)[3] of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest.

Article 4 of the Decision provides that operation of SGEIs shall be entrusted to the undertaking concerned  by  way of one or more acts that shall include the following information:

  1. the content and duration of the public service obligations;
  2. the undertaking and, where applicable, the territory concerned;
  3. the nature of any exclusive or special rights assigned to the undertaking by the granting authority;
  4. the description of the compensation mechanism and the parameters for calculating, monitoring and reviewing the compensation;
  5. the arrangements for avoiding and recovering any overcompensation; and
  6. a reference to the Decision itself.

The SGEI compensation amount must not exceed “what is necessary to cover the net cost incurred in discharging the public service obligations, including a reasonable profit” (see Article 5 of the Decision). For the purposes of calculating the compensation, the costs to be taken into account are as follows:

  • where the activities of the undertaking in question are confined to the service of general economic interest, all its costs may be taken into consideration;
  • where the undertaking also carries out activities falling outside the scope of the service of general economic interest, only the costs related to the service of general economic interest shall be taken into consideration.

Altmark Criteria

Altmark criteria are the cumulative conditions set out in the ECJ’s judgment in case C-280/00, under which ( if all conditions are met) SGEI compensation does not amount to State aid. In short:

  • the activity entrusted must be a service of general economic interest and the relevant tasks and obligations must be clearly defined in advance;
  • the parameters on the basis of which compensation is calculated must be established in advance in an objective and transparent manner;
  • the compensation cannot exceed the costs incurred in the discharge of the public service obligations, taking into account a reasonable profit in relation to the provision of the service (therefore, no overcompensation is allowed); and
  • the beneficiary must be selected in a public tender or, if no public procurement procedure is followed, the compensation for performance of public service obligations must be determined having regard to the costs of a well-run undertaking.

 

Let us now analyse the two cases recently decided by the European Court of Justice.

Case T-454/13 – SNCM v. European Commission

In the first case, the ECJ analysed the compensation received by SNCM (Société Nationale Maritime Corse Méditerranée) in respect of certain transport services provided between Marseille and Corsica.

SNCM challenged the decision of the European Commission whereby only part of the compensation received by the company for transport services carried out on the aforementioned route was deemed compatible. The Commission indeed regarded the compensation paid for additional services provided during the peak season as incompatible with EU State aid rules. In the Commission’s view, France committed a “manifest error” in classifying the additional services as SGEIs.

The Court pointed out that, while Member States have a wide discretion to define what they regard as  SGEIs, the Commission has only powers to check for so-called “manifest errors”. In the case at hand, the Commission found that there was no evidence of a need for additional services by SNCM and found their classification as SGEIs incorrect and, therefore, the relevant compensation incompatible with State aid legislation.

As a rule, SGEIs indeed have the purpose to remedy the market’s inability or failure to provide a certain service deemed essential for the general interest. In the case at issue, the additional summer services provided by SNCM should not have been included in the SGEI, because the market was able to provide them without State intervention.

SNCM tried to defend itself by arguing that (i) it was selected to carry out the services in question by public tender; (ii) the Commission had not previously disputed the compensation scheme; and (iii) the services were needed for territorial continuity.

The Court replied that: (i) the tender was based on a negotiated procedure and, in any case, organised in such a manner as to discourage the participation of more companies; (ii) the previous decisions of the Commission could not entail reliance from the private party, as the market is constantly evolving and assessments may thus vary along with the market situation; (iii) territorial continuity could be  ensured by the market without the State having to impose an obligation on SNCM.

Case T-219/14 – Autonomous Region of Sardinia v. European Commission

The second case concerns maritime transport services provided by Saremar, respectively, between Sardinia and the small Sardinian islands and between Sardinia and Corsica.

The Court found that the criteria under the Decision were not met and that the Altmark’s second condition was not satisfied, as the parameters on the basis of which the compensation of public service costs should have been calculated were not defined beforehand in an objective and transparent manner. Indeed, the acts whereby Saremar was required to carry out the transport service initially did not provide for any compensation. Compensation was envisaged only at a later stage, when Saremar started suffering from losses.

The Court recalled that, while the Member States have wide discretion in both the classification of a SGEI and the determination of the relevant compensation, such classification and determination must be made in advance, in a clear and transparent manner, so as to allow verification by the Commission in order to prevent Member States from abusing the SGEI rules.

In the case at hand, not only the compensation due to Saremar for the services provided was not determined beforehand, but the Autonomous Region of Sardinia (hereinafter “ARS”) allowed Saremar – in consideration of the losses suffered by Saremar – to amend its fares, which still should remain accessible to the public, without however determining their maximum limit. Saremar was therefore allowed to adjust its fares in such a way as to ensure economic and financial balance in its activities.

In the light of the foregoing, the Court, confirming the view previously expressed by the Commission, concluded that the public service obligations imposed on Saremar were not required as they were inappropriate for ensuring accessibility of the service to the public, in consideration of Saremar’s freedom to review its fares without particular constraints.

Conclusions

The two judgments mentioned above are particularly important as they highlight the limits of the discretion of Member States in defining and entrusting services of general economic interest in the maritime transport sector.

The mere classification by a Member State of a given service as a SGEI is not sufficient to ensure compliance with State aid rules. Indeed, the criteria under the Decision and all the four Altmark criteria must be (cumulatively) met to avoid the risk of compensation for such services being deemed by the Commission incompatible with State aid rules and, thus, ordered to be recovered.

[1] Refer to the “Contributions from Nctm Offices Around the World” section for a brief introduction to the novelties that will be better analyzed in our next issue.

[2] ECJ’s judgments in case T-454/13, SNCM v. European Commission, and in case T-219/14, Autonomous Region of Sardinia v. European Commission.

[3] Article 106(2), TFEU: “2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union”.

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

As is known, in exercising its functions and, even more so, in taking authoritative orders, the Public Administration is subject to strict obligations to state reasons, infringement of which allows a private person to have recourse to administrative courts for cancellation of the unlawful measure.

Such fundamental principle of the Italian legal system has been recently confirmed by the Regional Administrative Court of Tuscany, by judgment No. 289 of 23 February 2017.

In the case submitted, the Administrative Court, applying the aforesaid principle, ordered cancellation of the orders whereby the Municipality of Livorno had designated for expropriation a number of private areas in the port of Livorno used by a private concession holder for handling and storage of solid bulk and forestry goods in accordance with applicable planning provisions.

In particular, under the Court’s reasoning, there are two sets of reasons that justify the cancellation of orders of the Public Administration, namely, on the one hand, the absence of an accurate description of the public works for which an expropriation procedure is ordered and, on the other hand, the current compatibility of the business of the private person concerned with the use of the port area as foreseen by the Municipality in agreement with the Port Authority.

That being said, the key point of the above judgment is not so much (and only) the fact of having imposed precise obligations to state reasons upon the Public Administration, but the fact of having assessed and benchmarked such obligations (also) in light of the actual activity carried out by the private person in the expropriated area.

In the view of the Court of Tuscany, the objective compatibility of private property and of a current business with the designated use set out in port and planning regulations as a matter of fact imposes on public authorities a more burdensome obligation to state reasons for expropriation purposes.

In other words, “the compatibility of the private entrepreneurial activity with the functional use of the area” that characterises the area designated for expropriation under planning regulations, involves the Port Authority having to duly justify the reasons (including from a practical standpoint such as in terms of localising any public works or public utility works pursuant to Articles 1, 10 and 11 of Presidential Decree No. 327/2001) why the public interest underlying the expropriation procedure can only be achieved by turning a private area into a State-owned one.

In the absence of a comprehensive statement regarding the actual existence of public interest, any restriction of a private person’s right is therefore unlawful. Indeed, subject to compliance with the principles of reasonableness and affordability, the elements, albeit minimal (such as urbanisation layout, identified as a precondition for expropriation) must be present that allow sufficient understanding of the preconditions for the proper exercise of the technical discretionary power of the Public Administration in designating certain land for expropriation.

6/06/2017
Corporate & Commercial Law - Marine, Transport & Logistics

Since its enactment, Italian Law No. 84/94 on “Recast of the rules on ports” (so-called port law) has been based on the principle of free competition among port operators, preventing holders of concessions over State-owned land from applying for, and obtaining, concessions in respect of further areas of the same port to carry out the same activities as those carried out in the area under concession[1].

The ratio for such provision can be easily found in the report accompanying the first version of the port law. It basically reflects the necessity for ports to be at any time opened to multiple companies operating in full competition among each other, with a view to progressively improving quality and innovation in port services. Indeed, according to Italian law makers, “only steady confrontation and competition can generate a port policy aimed at reducing costs and, at the same time, at providing increasingly well-structured and comprehensive services”[2]

Article 18 of Italian port law was the subject of a number of pronouncements – in particular by Italian Regional Administrative Courts (TAR)[3] and by the Italian Communication Authority (AGCOM)[4]. In other cases, and particularly having regard to EU anti-trust rules, they provided an interpretation of the prohibition stricter than the one inferable from the literal meaning of the Italian provision at issue.

It should be noted that, in 2002, the TAR of Puglia[5] still regarded the structure of the State concessions in place at that time at the Port of Brindisi as noncompliant with EU principles. Indeed, in the administrative court’s view, not only the authority responsible issuing concessions should ensure that multiple companies be allowed to carry out port operations related to handling specific and different goods categories but it should also –  depending on the size and traffic capacity of the port concerned – ensure the co-existence of multiple companies dealing with the same goods category, in order to ensure competition among them.

This is, therefore, the “historical” interpretation and application of the prohibition to award a double concession for performance of the same activity in the same port.

The ratio for such a strict provision and for its legal interpretation, likewise strict and closely connected with EU competition rules, is justified when the reference parameter for applying such prohibition is an individual port, its operation and traffic capacity.

The question here however relates to identifying the scope of the said rule (Article 18(7) of port law) when the scenario changes. The reform of Law No. 84/94 enacted in 2016[6] has in fact changed the pre-existing system.

Fifty-seven national ports were reorganised and, as it were, merged into the new fifteen Port System Authorities, strategic decision-making centres having their headquarters in ports identified by the EU as ports of strategic interest (“core” ports)[7].

Therefore, as a result of the rationalisation brought about by the reform, the prohibition to award a double concession to carry out the same activity in the same port should now be reviewed in the light of the new structure, where a “system” is made up of two ports.

It is therefore legitimate to wonder – for the purpose of the above prohibition – whether the ports belonging to a single system should still be regarded as two separate entities, or whether a port operator can be refused a concession in respect of a port that is now part of the same system of the port to which the granted concession relates.

In other words – and in the absence of an express provision on the point in the revised port law –, is it reasonable to assume that the scope of the statutory prohibition under examination has extended?

If the above interpretation were to be the case, it would be impossible for a terminal operator to carry out his/her activity also in another port that has – until recently – been regarded as a separate and different commercial and competitive market.

A hint for the interpretation of the scope of Article 18(7) can be found in certain recent judgements and administrative regulations that seem to reflect a more concrete and functional view of the port concession system and, thus, of the prohibition to award a double concession to carry out the same activity in the same port.

Starting from the assumption that a concession should be regarded as a contract, which, as such, reflects “a functional model that allows pursuing, with the consent of the economic operator, interests that could not otherwise be achieved through authoritative power alone”, the TAR of Liguria[8] started mitigating the strict interpretation of Article 18(7) of port law, including in terms of protection of competition.

The Administrative Court of Liguria first and foremost recognised the power of Port Authorities to verify on a case-by-case basis the existence of any circumstance that may adversely affect the prohibition to award a double concession to carry out the same activity in the same port – and, thus, free competition, stating that “the limited space, coupled with the level of specialisation required for individual terminals can make complex, and even inappropriate, the presence, in the same port, of multiple concessionaries performing the same activity in actual competition among each other particularly (…)”.

Said topic was addressed also by the Port Authority of Livorno, who stated that “a somewhat flexible application of the rules is not unlawful (for example, by allowing a terminal operator to work beyond the scope of his/her concession), provided that the basic principles of transparency, equal treatment and protection of competition are ensured, thus avoiding abuse of dominant position”.

Therefore, competent authorities so far seem more inclined to give a less restrictive interpretation to the above rule, the application of which – subject to compliance with the basic principles for protection of competition and prevention of abuses – should take into account the contractual and co-operative nature of concessions with a view to attracting traffic.

An interpretation of the prohibition under Article 18(7) of port law involving its application also to two different ports – even if belonging to a single system – might indeed appear as a step backwards, compared to an interpretation that can without fear be said to be more modern than the one given by the legislator in 1994.

In this new scenario, one may expect that the prohibition under Article 18(7) of port law –  which competent administrative and jurisdictional authorities will have to interpret in the near future – will evolve into a well-established more practical and functional interpretation, in any event in accordance with the objectives of development and improvement of Italian ports expressly pursued by the Italian port reform of 2016.

[1] Pursuant to Article 16 of said law, port operators mean the persons/entities who perform loading, unloading, transshipment, storage and handling operations in general involving goods and any other material within a port.

[2] See entire text in web page at http://www.governo.it/sites/governo.it/files/relazione_illustrativa_11.pdf.

[3] Reporting AS 230 dtd. 8.11.2001 (in Boll. 6/2002).

[4] To simplify, TAR Puglia – Lecce, First Division, 24 January 2002, No. 184 and Tar Catania, III, No. 2111, 11.08.2004.

[5] Judgement of Tar Puglia No. 184 of 24.01.2002.

[6] Law Decree 169 dtd. 4 August 2016, entitled “Recast, rationalisation and simplification of the rules on Port Authorities under Law of 28 January 1994”.

[7] Port System Authorities are in charge of the following areas: Western Ligurian Sea, Eastern Ligurian Sea, Northern Tyrrhenian Sea, North-Central Tyrrhenian Sea, Central Tyrrhenian Sea, Southern Tyrrhenian Sea Ionian Sea and of the Straits, Sea of Sardinia, Sea of Western Sicily, Sea of Eastern Sicily, Southern Adriatic Sea, Ionian Sea, Central Adriatic Sea, North-Central Adriatic Sea, Northern Adriatic Sea, Eastern Adriatic Sea.

[8] TAR Liguria, judgment No. 747/2012.

1/06/2017
Administrative & European Public Law

The Italian government has submitted to Brussels the draft decrees for the introduction of an obligation to indicate the origin of certain the raw materials.[1] For rice, the place of cultivation, processing and packaging must be indicated, while for wheat, the place of wheat cultivation and the sowing of the seeds must be indicated. The article reviews the draft decrees submitted by the Ministry of Agricultural Food and Forestry Policies, to the Commission for approval prior to implementation.

Italy is the biggest producer of rice in Europe. The land dedicated to cultivation is 234.300 hectares, there are more than 140 varieties of rice and about 1.500.000 tonnes is produced every year. There are more than 4,265 rice companies in the supply chain.

The rice sector has been in crisis since the introduction of the EU’s Everything But Arms trade initiative. Everything but Arms allows imports into the EU from least developed countries tariff free and without quantitative restrictions. This has given rise to a massive increase in imports of Rice from Vietnam and Cambodia resulting in a significant drop in market prices of some varieties of rice and, consequently, a reduction – in 2014 – of the cultivation of certain types of varieties using over 12,000 hectares.

To try and counter the imports producers have been calling for better labelling of foodstuffs containing rice so as to indicate to consumers the true origin of the raw materials. The producers hope that consumers will tend to purchase products with Italian rice rather than imported rice.

Therefore, the Italian Ministry of Agricultural, Food and Forestry Policies has declared –in the event the European Commission does not approve the above mentioned decree – that it is ready to renew the request of the general safeguard clause[2] pursuant to article 22 of the Regulation EU no. 978/2012[3].

In addition to rice Italy wishes to address the use of wheat in processed foods and in particular pasta. In particular, the decree provides that processed wheat products like pasta produced in Italy must bear on the label the following information:

  1. country of wheat cultivation: the name of the country in which the wheat is grown;
  2. country of milling: name of the country where the grain was ground.

If the above mentioned operations occur in the territory of several countries, it may be used – depending on the country of origin – the following wording: EU countries, non EU countries, EU countries and non-EU countries.

If durum wheat is cultivated for at least 50% in one country, such as Italy, the term “Italy and other EU and / or non-EU countries” may be used.

Italy has already introduced origin labelling for milk used in milk products. Introducing the origin labelling measure in April 2017, the Italian Minister for Agricultural Policies, Maurizio Martina, said that, “Italy is working to introduce mandatory information on the origin of milk including as a raw material in dairy products. The Commission is addressing finally our request on labelling. We have had a dossier open for months now with the Commission on a 100% Italian label and we are hoping for faster action”. [4]

The decrees requiring the labelling of origin of the raw materials are to be applied on an experimental basis. This allows Italy to overcome certain legal difficulties in the EU’s food labelling law set out in Regulation EU no. 1169/2011.

The contents of the draft decree on rice has not been shared with the referring industrial association, namely AIRI –Association Industries Italian Rice Producers. In fact, pursuant to Italian law no. 180/2011 “any law which introduces additional burdens for business may be elaborated without an adequate analysis of impact made by the responsible Ministry and without adequately involving the category associations.”

An adequate analysis according to Italian law no. 180/2011 would suggest that the origin label for wheat and rice in Italy does not provide particularly useful suggestions for the consumers since the duty will affect only the products sell in Italy, not even the products sell abroad.

On the other hand, the duty of labelling will be an additional cost for the rice and wheat companies. The companies which will not want use the origin label for the foreign market will have to differentiate the labels and the storages.

In conclusion, it remains to be seen if the European Commission approves the new measures. It is only if the decrees get clearance from Brussels will Italy be able to implement them.

[1] Namely “Schema di Decreto interministeriale concernente l’indicazione dell’origine in etichetta del grano duro per le paste di semola di grano duro, in attuazione del regolamento (UE) n. 1169/2011, relativo alla fornitura di informazioni sugli alimenti ai consumatori.” And “Schema di Decreto interministeriale concernente l’indicazione dell’origine in etichetta del riso, in attuazione del regolamento (UE) n. 1169/2011, relativo alla fornitura di informazioni sugli alimenti ai consumatori”.

[2] See the official website of the Italian Minister of Agricultural, Food and Forestry Policies (Mipaaf) for more.

[3] According to article 22 “1. Where a product originating in a beneficiary country of any of the preferential arrangements referred to in Article 1(2), is imported in volumes and/or at prices which cause, or threaten to cause, serious difficulties to Union producers of like or directly competing products, normal Common Customs Tariff duties on that product may be reintroduced.”

[4] From the speech held by the Italian Minister Maurizio Martina on the occasion of the ufficial inauguration ceremony of “TuttoFood” in Milan on 8-11 March.

1/06/2017
Administrative & European Public Law - Insurance Law

The so-called “Gelli” Law (Law no. 24 of 8 March 2017), named after its main drafter, finally come into force on 1 April 2017. The new law sets the framework for medical malpractice.

According to the Italian Parliament, the objective of this new regulation is be to harmonize the relationship between doctors and patients, in particular: monitoring the medical malpractice cases and disputes, drafting preventive measures, as well as reducing the level of litigation.

Civil liability of healthcare facilities and doctors
With regard to the civil liability, Article 7 of the Gelli Law clarifies, once and for all, the distinction between the liability of the healthcare facilities and that of doctors employed by the facility on the basis of the following criteria:

Liability of healthcare facilities, public or private, is always contact based, pursuant to Article 1218 and Article 1228 of Italian Civil Code.

In other words, hospitals are liable vis-à-vis third parties on the basis of contract law for any breaches and for the wrongdoings of their employees and/or non-employed professionals. According to Gelli Law, there is no difference between private and public hospitals.

With reference to the burden of proof, this means that, on one hand, the claimant (patient) must provide evidence of the damages suffered due to the medical treatment, alleging the relevant breach of the contractual duty, and, on the other hand, the defendant (hospital) must proove that the performance was duly carried out and the outcomes were caused by an unforeseeable event, unavoidable in the context of ordinary professional care. In this case, statute of limitation is 10 years.

Liability of doctors is based on tort, with the exception of self employed doctors, pursuant to Article 2043 of the Italian Civil Code.

Therefore, doctors employed by Public or Private Hospitals, doctors pursuing their activity in the “intramoenia” scheme or accreditation with the National Health System, researchers and doctors performing telemedicine are liable in tort unless they breached specific contractual obligations directly entered into with the patient.

The initial burden of proof is with the patient. The claimant must provide evidence of the fault of the doctor, as well as the causal relation between the damages and the wrongdoing of the doctor. In the case of tort the statute of limitation period is 5 years.

Assessment on negligence and malpractice
The Gelli Law clarified also the crucial point of the determination of the doctor’s negligence. Indeed, pursuant to Article 7(3) of the Law, in order to ascertain and determine compensation in damages, the Court must take into account the new Article 590 sexies of the Italian Criminal Code, introduced by the Law under Article 6.

In particular, the above-mentioned Article established that the healthcare professionals who cause death or personal injury to a patient during the exercise of their functions will be subject to the penalties provided for manslaughter or negligent personal injury.

Furthermore, in case of medical malpractice, it is up to the healthcare professionals to provide evidence that they acted in accordance with recommended guidelines published under the law, in order to avoid their own liability. In the absence of specific guidelines the professional must adhere to principles of good practice.

Compulsory Insurance
The Gelli Law provides also for a mandatory Insurance coverage of health facilities and professionals and for the direct right of action of patients against the Insurers.
Article 10 of the Law defines the public or private health facilities as “the hospitals of the National Health Service, facilities and private hospitals operating autonomously or under the regime of accreditation with the National Health Service that provide health services to third parties”.
Therefore, professionals working in such institutions must hold professional insurance in order to allow for possible recovery actions by the entity.
However, all the other professionals not included in the above-mentioned definitions must in any case hold an adequate professional insurance coverage according to Article 3(5)(e) of Law Decree 13 august 2011, n. 138 (as amended).
For the time being, it is still to early to provide any comment on those compulsory insurances, mainly because a number of minimal provisions still need to be clarified by means of a ministrial decree to be published. We will return to this issue in a subsequent edition of Across.

Brief remarks on the European framework
Some of the principles behind the the Gelli Law are already in place in other European countries. For example:

(i) France has required, since 2002 (Law No. 4 March 2002 No. 203), an obligation to subscribe to professional liability insurance by the health facilities and professionals;

(ii) Sweden provides that medical professionals are obliged to subscribe to policies for professional liability insurance.

With regard to the medical malpractice insurance schemes, the example of England and Wales lays down that the liability for negligence of employees is undertaken by the National Health Service Trusts. This means that medical professionals not employed by the National Health Service obtain indemnity through a medical defense organization or private insurance.
With reference to liability, in the majority of European territories, medical malpractice claims are typically tort claims brought against an individual professional for negligence, or claims brought against a medical institution under the principle of vicarious liability.

In the UK, as a general rule, if a doctor is employed by the National Health Service, the latter is vicariously liable for the doctor’s negligent acts and omissions.
However, if a doctor is exempted from the indemnity programme coverage, he or she can be sued directly for negligence.
In Germany, medical malpractice law is based on the relevant Civil Code provisions on liability and on causes of action only developed by case law.
In light of all the above, only the future enactment of all the relevant implementing decrees and the future case law will show whether Gelli Law will be consistent with the principles expressed by the other European countries and the goal of a general harmonization of such principles will be achieved.

Conclusions
It seems clear that the new regulation on medical malpractice is an important piece of legislation which introduces greater certaintly to an area that was previously uncertain. It goes without saying that the previous uncertainty has been one of the reasons for the increase in litigation in the medical sector and one of the aims of the reform is to try to decrease such litigation.
Obviously the principles on medical malpractice liability appears to be strongly affected by the structure of the National Health Systems in the different EU countries and due to the differences in the national legislations, they do not seem to be easily armonized.
However, having a set of rules reducing the areas of uncertainties appears to simplify the market and also grants a clearer system in the EU arena.

1/06/2017
Administrative & European Public Law - Litigation & Arbitration

In 2008 the European Union adopted the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters (2008/52/EC) on mediation in civil and commercial disputes. The objective is to “create a workable, light-touch Directive, which reflects existing guidelines and best practice and can serve to encourage the wider use of mediation across the EU. The Directive was not the first attempt to promote mediation. The EU  has published a Green paper, two Directives on Alternative Dispute Resolution (ADR) in consumer disputes and Online Dispute Resolution, and has sponsored the drafting of a European Code of Mediators. In addition, at the supranational level, UNCITRAL had approved a set of conciliation rules in 1980, and a model law in 2002 on international commercial conciliation.

The EU Directive requires Member States to establish mediation systems in cross-border disputes, but also invites Member States to consider if such systems can be made applicable to domestic matters, even if some Member States had already introduced non-adjudicative methods in their legal systems. The Directive covers the essential issues concerning mediation, within a lightly-regulated framework: with regard to confidentiality (Art. 7) what is disclosed in a mediation session must not be disclosed later by the parties in a judicial or arbitral proceedings (exceptions may be established only for the protection of fundamental public interest, such as personal or psychological integrity); limitation periods will be suspended during mediation (Art. 8); judicial enforceability of the settlement agreement must be guaranteed (Art. 6).

Three approaches to the promotion of mediation exist today in continental Europe[1]: the “pragmatic approach” exemplified by Denmark and the Netherlands, and consisting of first experimenting with pilot-projects, followed by regulation; the “cultural approach” exemplified by Switzerland, where the education of lawyers to non-adjudicative methods is paramount, and where a number of traditional conciliation practices within the judiciary itself render litigation a “last resort method”; the “legalistic approach” exemplified by some major European states, among them France, Spain and Italy, where first a comprehensive regulation on mediation is established, and then the results are evaluated.

Once the choice to regulate has been made, there can be different ways to approach regulation itself: 1) market regulation (generally recommended only for high-end commercial disputes); 2) self-regulation by a community or industry; 3) formal regulating framework, defined by legal parameters; 4) formal comprehensive legislation.

The EU approach has been to create a “formal framework”. Incentives, sanctions and detailed regulation have been left to the Member States to decide. The formal framework is therefore a flexible one, allowing to adopt a variety of mechanisms. Out of the 28 EU members, 22 have established an accreditation system for mediators, and 15 provide legal aid for destitute litigants in mediation. Only 10 Member States allow the judge to order the parties to attempt mediation before commencing litigation, and just 6 States have some form of mandatory mediation on the basis of the disputed matter[2].

EU Member States in fact are not prevented from requiring that parties participate in a mediation proceeding, or to an informative session on mediation, as long as the right to having one’s day in court is preserved, and the proceeding is not exceedingly long or expensive[3]. Compelling mediation is a less than optimal solution, but in the short- to medium-term, it might be considered the only option to jumpstart mediation in the legal system.

Training and selection of the mediators is not regulated by the Directive. Member states have to ensure the quality of mediators by encouraging training and the adoption of codes of conduct, and by providing quality control on mediation procedures. However, only 5 Member States include mediation in the legal education curriculum, and in most countries, a 40 to 50 hours-course in generally sufficient for accreditation. The aspect of training and job incentives is going to be crucial if mediation has to become mainstream, as the European institutions hope. Virtually all European countries leave the fees to be paid to mediators to the market, since they provide no court-sponsored or financed mediaton programmes. This may be a problem where these fees are instead controlled or capped, such as in Italy. By not committing the financial resources that are needed to reneder this service commercially viable, States may derail the ADR market. In the first years after the Directive, a large number of mediators were accredited, and therefore most mediators still mediate only a handful of cases per year. As a result, where mandatory mediation is established together with price control, civil and commercial mediators work virtually pro bono.
Mediation legislation has now been implemented in all Member States, but for some years the inflow of mediation proceedings has been limited to say the least, as it was in the past, with the notable exception of the few countries where mandatory mediation was introduced[4]. Some Member States have started a discussion to modify legislation, and have set up opt-out systems, where the parties must see a mediator in person, before deciding explicitly that they do not intend to take advantage of the process: if the party and/or their lawyer do not comply with this obligation, the judge may later award some of the legal costs to the counterparty, no matter what the decision on the dispute is.

Resorting to mediation implies a change in the legal culture, which can only be achieved gradually. The path towards a more balanced use of adjudication to resolve indiscriminately all types of conficts, will probably take longer than anyone expected.

[1] Alexander, N. (2008), Mediation and the Art of Regulation. Queensland University of Technology Law and Justice Journal, 8(1), 1–23.

[2] For a comprehensive comparison table on mediation legislation in the EU member countries, see: Schonewille, M., & Schonewille, F. (2014), The Variegated Landscape of Mediation. A Comparative Study of Mediation Regulation and Practices in Europe and the World. The Hague: Eleven International Publishing.

[3] Judgment of the Court (Fourth Chamber) of 18 March 2010. Rosalba Alassini v Telecom Italia SpA (C-317/08).

[4] De Palo, G., D’Urso, L., Trevor, M., Branon, B., Canessa, R., Cawyer, B., & Florence, L. R. (2014), “Rebooting” the mediation directive: assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU. Retrieved from http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET%282014%29493042_EN.pdf.

Italian port law prohibits a terminal operator from managing multiple areas for the performance of the same activities in one single port. We will first analyse how this prohibition could be amended following the recent 2016 reform.

Then we will look at a recent ruling of the Regional Administrative Court of Tuscany which clarified the obligations imposed on the Public Administration in the event of an expropriation of private areas in Italian ports.

The recent extension of the scope of the General Block Exemption Regulation (2014) to the granting of State aid to EU ports and airports reminds us of two recent judgments of the Court of Justice on State aid in the maritime sector and – in particular – the compensation of public service obligations to undertakings entrusted with the operation of services of general economic interest.

Next, we analyse two judgments from the United Kingdom and Spain concerning the application of two major international conventions in the field of international transport, the Hague-Visby Rules and CMR. The English verdict confirms that the failure to issue a bill of lading is not relevant in excluding the applicability of uniform legislation, whereas the Spanish ruling provides us with a definition of “default equivalent to wilful misconduct” for the purpose of excluding the limitation of carrier’s liability.

Moreover, the Italian Court of Cassation has issued two interesting decisions on transport matters. The Italian Supreme Court denied the holder of the bill of lading the right to act against a carrier for damage to the goods due to the lack of endorsement of the bill of lading by the receiver to the order of the holder, and considered an “exchange of containers” as a case of gross negligence of a road carrier.

Finally, let us analyse a decision of the Tax Court of Rome on IRESA, the noise emission tax in Italian airports. This ruling, in view of the fact that the Lazio Region disregarded the principles and aims set out in the national and European regulations concerning the use of the tax revenue, concluded for the disapplication of the IRESA as provided by the current regional legislation.

Alberto Rossi

There’s a fair European wind blowing

Probably the most important outcome of the French election is not so much the actual electoral defeat of the National Front but the decision of that party to remove from its policy programme the idea of withdrawing from the Euro and promoting a referendum on Frexit. In other words, those parties which have based their political offer to the electorate on the negative impact of globalization and the hard impact of immigration, no longer see the solution as the break-up of the EU.

The same in happening in the Netherlands and even in the UK where the May government is promoting the need to address the negative aspects of globalization and migration in a substantive manner and not long saying that Brexit itself is the answer.

This is a window of opportunity that the EU must embrace. The underlying issues of migration and globalization must be addressed. But if they are addressed in a satisfactory manner the EU itself is not being challenged. There is a recognition in France and in the Netherlands, and even in Germany given the results in the recent Lander elections among the vast majority of the electorate that the EU remains a valid project and that the solutions are best found within its remit.

If Macron and Merkel can get together with the Italy and Spain, much can be done. From an insider’s point of view the only possible hiccup in catching this favourable wind is the capacity of the Commission to recognize it.

 

Alitalia insolvency: second round
By a decree of the Italian Ministry of Economic Development (MISE) on 2 May 2017 the extraordinary administration procedure set forth by legislative decree No. 347/2003 (“Legge Marzano”) was started for Alitalia Società Aerea Italiana S.p.A., which has also been declared insolvent by the Court of Civitavecchia on 11 May 2017.

Can the Court amend the concordato preventivo proposal upon confirmation?
The Court of Cassation with the decision of 3 April 2017, No. 8632 ruled that the confirmation order of the Bankruptcy Court can be appealed, even when there were no oppositions to confirmation, if the Court unilaterally amended the proposal approved by the creditors.

Is the bank liable for damages suffered by the insolvent company following directors’ reckless resort to credit lines ?
The decision of the Supreme Court of 20 April 2017, No. 9983 confirms that the bank can be held jointly liable with the directors towards the company, on different grounds from those making the bank  accountable to individual creditors.

Grounds for ineligibility or forfeiture of statutory auditors who are members of an association of professionals
Pursuant to Article 2399, letter c), of the Italian Civil Code, statutory auditors whose patrimonial relationships with the company or its subsidiaries may affect their independence cannot be appointed and, if appointed, cease from their office. It has been questioned whether the case whereby a statutory auditor is a member of an association of professionals providing consultancy services to the same company reflects the case provided for by the law. Although the answer to the question was generally affirmative, doubts still remain as to the criteria adopted by the Supreme Court in order to determine the cases in which the independence of a statutory auditor can be actually considered as compromised.

The scope of the delegation of management in limited liability companies (s.r.l.): content and limits
By decision no. 25085 of 7 December 2016, the Supreme Court established the legitimacy of a general delegation of management, by the board of directors to individual managing directors with the power to act separately, to the extent that it is not aimed at excluding the exercise of a concurrent managing power by the managing body.

Data processing for marketing purposes: the protection of legal entities
By order No. 4 of 12 January 2017, the Italian Data Protection Authority set out the discipline on personal data processing for marketing purposes, finding the unlawfulness of both the processing of data collected through forms available on websites and the processing of data (namely, telephone numbers) autonomously collected on the Web.

Administrative liability of entities under Legislative Decree No. 231/2001 within groups of companies
Liability can be found, under Legislative Decree No. 31 of 2001, on the part of a holding company for offences committed in connection with the activities of its subsidiaries, provided that a) the person acting on behalf of the holding company acts in concert with the person committing the offence on behalf of the controlled entity; and b) the holding company appears to have obtained a concrete advantage from, or pursued an actual interest by way of, the offence committed in the context of the subsidiary’s activity.

The liability of non-executive directors and the duty to act in an informed way
According to decision no. 17441, of 31 August 2016, of the First Division of the Supreme Civil Court, the liability of directors without management power cannot originate from a general failure to supervise – that would be identified in the facts as a strict liability – but must be attributed to the breach of the duty to act in an informed way, on the basis of both information to be released by executive directors and information that non-executive directors can gather on their own initiative. Therefore, the determination of the prerequisites for the liability of delegating directors fits in a context accentuating the distinction between the duties imposed on managing directors and those typical of non-executive directors.

Considerations regarding the possibility to waive the termination effect of a notice to perform
Judgment No. 4205 of 3 March 2016 of the Supreme Court, Second Division, gives us the opportunity to provide a brief overview of the different opinions expressed by courts and legal commentators regarding the possibility to waive the termination effect of a notice to perform.

Validity of the shareolders’ agreements which provide a preventive waiver of the liability action against the directors when taken at the conclusion of the mandate
With the decision of 28th September 2015, No. 19193, the Court of Rome stated the validity of the shareholders’ agreement clauses which provide that the “incoming” shareholders undertake not to bring the liability action against the “outgoing” directors or not to vote for it in the general meeting.

The Supreme Court’s overruling: the banking and finance agreement signed exclusively by the client is null and void
The Supreme Court decides again the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.

Purchase of shares of a general partnership: can the mistake on the value of the share be legitimately qualified as an essential mistake?
The Tribunal of Milan has stated that, as a rule – also with reference to the purchase of shares of a general partnership – the contract can be avoided, upon application of a party, for an essential mistake, only if the contract contains an explicit guarantee on the value of the assets and on the quality of the goods of the company (a guarantee that, according to the Tribunal, the contract at hand lacked).

The new rules regarding the proceedings before the Supreme Court (Decree Law n. 168/2016, converted into Law n. 197/2016)
With another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).

The joined chambers of the court of cassation on the qualification and challenge of the non-final award and of the partial award
“An award that partially decides on the merits of a dispute, immediately challengeable pursuant to art. 827, paragraph 3 of the code of civil procedure, is both that of a generic condemnation pursuant to art. 278 of the code of civil procedure, and the award that decides one or some of the questions of the case, without defining the entire proceedings; instead, the awards that decide preliminary issues are not immediately challengeable.”

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