Automotive, Rail, Aviation

The automotive, rail and aviation industry is characterized, on the one hand, by the need for a strong multidisciplinary approach and, on the other, by specific skills and a high degree of specialization. Nctm offers its consolidated experience to Italian and international companies that manufacture and sell cars, motorcycles and spare parts, as well as to Italian and international train manufacturers and providers of air and rail transport services.

Our Practice provides support to clients through long-term, ongoing relations on the preparation of sector-related contracts, adaptation to new regulations, regulatory aspects and dispute management.

The core services offered by the Department are:

  • assistance in the preparation and/or review of import and distribution agreements
  • assistance in the preparation and/or review of supply agreements
  • assistance in the preparation and/or review of licensing and merchandising agreements
  • assistance in the preparation and/or review of transport agreements
  • assistance in the preparation and/or review of handling agreements
  • legal assistance before the courts and in arbitration
  • relations with Italian and EU Supervisory Authorities
  • regulatory legislation, compliance and authorization proceedings
  • Press Releases
  • Articles
  • Newsletter
7/08/2015
Corporate & Commercial Law - Marine, Transport & Logistics - Mergers & Acquisitions, Private Equity

NCTM Studio Legale, with a team coordinated by partners Federico Manili and Piero Corigliano, and associate Miranda Cellentani assisted APM Terminals B.V. in the acquisition of 100% of Reefer Terminal S.p.A., closed today.

Reefer Terminal is, and has been for over 30 years, the largest refrigerated terminal in the Mediterranean, as well as a world-class terminal for the handling of containers and general cargo. Within the Vado Ligure port the target company will become an integral part of the new semi-automated container terminal of APM, which will open in 2018.

The seller, GF Porterm S.r.l, was represented by Munari Giudici Maniglio Panfili & Associati, with a team coordinated by founding partners prof. Francesco Munari and associate Matteo Rossini.

 

5/02/2015
Corporate & Commercial Law

NCTM Studio Legale Associato successfully assisted NTV – Nuovo Trasporto Viaggiatori, the first Italian private rail company on high speed rails, in a defamation case brought by Ferrovie dello Stato Italiane (FS), the government-owned holding company that manages infrastructure and services on the Italian rail network, and its former CEO Mauro Moretti.

The civil lawsuit for compensation was filed for an alleged defamation towards Ferrovie dello Stato Italiane contained in some press releases issued by NTV before the starting of the new railway service, aimed to expose the anti-competitive practices of FS.

The Civil Court of Rome rejected the claim brought by FS and Mauro Moretti entirely, stating that NTV’s press releases represented a licit right of freedom of expression, and therefore, of freedom of thought, protected by the article 21 of the Italian Constitution.

NCTM assisted NTV with a team composed by Sante Ricci (equity partner), Gianluca Massimei (salary partner) and Lelio Galdieri (senior associate).

1/06/2017
Marine, Transport & Logistics

One of the most relevant issues to be faced by the UK economic and industrial sector after the referendum that proposed the exit of the UK from the EU concerns the impact on British air carriers in their relationships with the EU aviation system, both in terms of regulatory issue and of operating procedures.
Despite the circumstance that there will be little or no immediate change to the regulatory environment, since it will take at least 2 years to negotiate the exit terms, starting from the UK notification to the EU of its intention to leave under Article 50 of the Treaty on European Union, great uncertainty is likely to amplify the negative economic impacts of Brexit.

Consequently, in the longer term, the regulatory impact of Brexit on the aviation sector will depend on the nature of the exit terms and future arrangements between the UK and the EU.

Such negotiating process, apart from the various models of agreement that could be reached and their implications for aviation regulations, finds actually its basis on a trade-off between two key issues; access for UK airlines and customers to the European Single Aviation Market and policy freedom for the UK to set its own regulations.
To better understand the issues facing both the EU and the UK it is worth briefly recapping the story and evolution of the relationships between the EU and the European countries which never joined the Single Aviation Market.

The ECAA and the EFTA-SEE agreements
The 1960 Stockholm Convention established the European Free Trade Association (EFTA) as an alternative to European states that did not want or could not yet join European Economic Community, now the European Union.
EFTA was founded by the following seven countries: Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Finland joined in 1961, Iceland in 1970 and Liechtenstein in 1991. In 1972, the United Kingdom and Denmark left EFTA to join the EC. They were followed by Portugal in 1985 and by Austria, Finland and Sweden in 1995. Today the EFTA Member States are Iceland, Liechtenstein, Norway and Switzerland.
The European Economic Area (EEA) was established in 1994 with the aim to extend the provisions applied by the European Union in its internal market to the remaining countries of the European Free Trade Association (EFTA). Consequently, Norway, Iceland and Liechtenstein became members of the EEA, while Switzerland, thus remaining an EFTA member, decided not to join the EEA but to deal with the EU separate agreements.
In 2006 the European Common Aviation Area (ECAA) was established as defined by bilateral agreements between European countries about a single market in aviation services.
Built upon the EU’s acquis communautarie and the European Economic Area, the ECAA in effect hoped to achieve the goal of liberalization of the air transport industry by allowing any company from an ECAA member state to fly between any airport in all ECAA member states (including the possibility for foreign company to provide for domestic flights).
The ECAA agreement was signed by almost all of the 27 EU members, the European Community itself, Norway, Iceland, Croatia, Macedonia, Albania, Bosnia and Herzegovina and Kosovo (UNMIK as Kosovo representative under Security Council resolution 1244). The last two EU member states to sign it were Slovakia and Latvia respectively on June 13th, 2006 and June 22nd, 2006. Finally, Serbia signed on June 29th, 2006 and Montenegro on July 5th, 2006.

ECAA market access
Taken as a whole, the EU is easily the single biggest destination market from the UK, accounting for 49% of passengers and 54% of scheduled commercial flights.
Therefore, taking into account those countries that have access to the Single Aviation Market (the way in which the air transport industry is called within the EU and whose legal basis lay in Article 100(2) of the Treaty on the Functioning of the European Union) as members of the European Common Aviation Area (ECAA), the importance of market access to such space for the UK becomes even more significant. In this respect, a key consideration in understanding the regulatory implications of Brexit is the extent to which the UK is willing or able to negotiate continued access to the Single Aviation Market.
Moreover, the discussions on the market access go beyond UK-EU routes. In fact, the UK’s routes to the rest of the world will be affected too. Since 2002, EU member states have been required to apply the provisions of the Single Market to bilateral air service agreements with third states. Most notably, this requirement is characterized by the Community Carrier clause, which requires third countries to apply the same treatment to all the airlines registered in the EU as well as those airlines registered in the country which signed the bilateral agreement.
At the same time, the EU Commission has also given effect to the external dimension of the Single Aviation Market by negotiating so-called comprehensive agreements with third countries as a single trading block. Perhaps the most high-profile of these agreements is the EU – US open-skies agreement which entered into force in 2008.
Prior to the EU-US open – skies agreement, as a matter of fact, air transport relations with the US were governed by bilateral agreements between EU countries and the US. 16 EU countries already had open – skies agreements in place. However, this fragmented approach proved to be an obstacle as it prevented the completion of a genuine single market.
In 2002, the Court of Justice of the European Union handed down judgments in cases referred to it by the European Commission (C-466/98, C-467/98, C468/98, C-469/98, C-472/98, C-475/98 and C-476/98). These decisions clarified the sharing out of the external competences between the EU and EU countries and certain issues concerning freedom of establishment.
As a result, the Commission received an authorisation to negotiate an air agreement with the US that applied for the EU as a whole.
Depending on the terms of exit, these agreements would potentially cease to apply to the UK, possibly requiring the UK to negotiate a whole raft of separate bilateral agreements.
Negotiating an air services agreement can be a time – consuming process and this would coincide with the moment where UK Government officials are busy amending a wide range of laws. In the interim, therefore, it is possible that provisions would revert to the last agreement that was in force prior to the entry into force of the comprehensive agreement, for example Bermuda II in the case of air services between the UK and US. Such a situation would have deep implications for airlines and their customers, no matter how unlikely.
In practice, it is expected that agreement would be reached (eg. via Memorandums of Understanding) to maintain existing arrangements pending negotiation of a new bilateral agreement.
Once again, whether the UK would need to negotiate new bilateral agreements or not, it will depend on the nature of its future arrangements with the EU; broadly speaking, the closer the future relationship with the EU will be, the more will be not necessary for UK to amend air services agreements.

Potential models for UK-EU cooperation post-Brexit
The UK Government identified the three most likely options for future UK arrangements with the EU.

These are:

  1. Membership of the European Economic Area (EEA), which is the model currently followed by Norway and which ensures full access to the Single Market;
  2. Ad hoc bilateral arrangements, similar to the bilateral agreements between the EU and Switzerland (in fact the aeronautical relationships between UE and Swiss Federation are ruled by a special agreement signed in 1999); and
  3. WTO relationship (e.g. no special/formal arrangement with the EU).
  4. Access to the Single Aviation Market according to the option provided by the UE Regulation no. 1008/2008 or, in other words, taking into consideration the hypothesis that would consist for UK air companies in setting up a Community Air Operator’s Certificate through the acquisition of a shareholding of more than 50% in EU carriers’ equity, or, as in the case of IAG, to avail themselves of intra-EU flights subsidiaries or allied carriers who already holds and/or can retain the necessary aeronautical operator’s licenses[1].

Each of these options travels parallel to the landscape of the possible aero-political arrangements: membership of the European Common Aviation Area (ECAA), a negotiated UK-EU horizontal agreement or no formal relationship. Each of these options deserve, of course, to be discussed more widely.

Concluding comments
The decision for the UK to leave the EU has significant and wide-ranging impacts, involving both an economic and regulatory context.
Some of these effects will be perceived immediately (e.g., via the exchange rate impact on the cost of air travel) while others will appear more longer-term in nature.
In part, these effects are dependent upon the precise terms negotiated as part of the exit agreement.
Therefore, the consequences of Brexit on the Single European Aviation market is a still open issue. Finding a solution will not be easy. Because of that a temporary arrangement is likely. What the final outcome will be is hard to tell.

 

 

[1] Very significant to this extent are the different situations of EasyJet and IAG.The Luton-based EasyJet, in fact, could be viewed as the most exposed to a hard Brexit because it is based in the UK and has only a UK and a Swiss air operator certificate, or AOC. The UK AOC, as things stand, allows the company to fly between the UK and EU countries (and vice versa) as well as between EU states. To fly between EU states post-Brexit, it is likely to need another AOC, because also Switzerland is not a member of the EU. Just weeks after the EU referendum in June easyJet said it was in the process of applying for an EU AOC, which should be enough to allow it to operate intra- European flights after March 2019. Currently only EU-owned airlines can operate flights within the EU – this means that 50.1% of shareholders must be based in Europe. There is some flexibility to this geographic limit: for example, Norwegian Air is based in Norway, which is outside the EU. However, it should be noted that Norway sits within what is known as the European Economic Area, which includes all EU countries as well as Iceland, Liechtenstein and Norway, allowing the three latter nations to be part of the EU’s single market. Since it is increasingly unlikely that the UK will be a member of single market after Brexit, the main way for easyJet to operate intra EU flights post Brexit is to establish a subsidiary company within the EU or to acquire the majority in the stock capital of an EU-based carrier, holder of an EU AOC. At the opposite, there’s the situation of IAG. British Airways, owned by International Airlines Group, does not fly any intra- continental routes and so would not be hit if the EU prevented UK airlines flying within the confines of the bloc after March 2019. Furthermore, IAG’s other airlines include Spanish-based Iberia and Vueling, as well as Ireland-based Aer Lingus, meaning the wider group already possesses permission to fly within Europe. As for ownership, IAG is the listed entity and trades on both the London Stock Exchange and Madrid bourse thanks to its Spanish registered office. The company declined to provide a breakdown by nationality of its shareholders but it said it would comply with EU regulations. Qatar Airways owns 20% of IAG, but it does so via its Luxembourg-based company, something that is likely to help it maintain the necessary 50.1% ownership by EU-based investors to continue its operations.

 

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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