Corporate & Commercial Law

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The Corporate and Commercial Department is made up of 81 professionals, including 22 equity partners and 13 salary partners. We are lawyers and chartered accountants (known as commercialisti in Italy). All our partners are young and very active in daily practice.

We work in close cooperation with Nctm lawyers in other Departments and with financial advisors, auditing companies and qualified external consultants. The Department is present in all offices of the firm, both in Italy and abroad. We provide quick answers from a specialist network.

The Department structure allows us to be fully up to date with, and even anticipate, the constantly changing legal framework.

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For every business, it is vital to ensure that its activities be carried on in full compliance with the various and ever-changing regulations of the sector, taking the best from the opportunities offered. To this end, Nctm has built up a well-established experience in assisting and advising businesses on commercial and corporate matters.

The firm provides advice and assistance on an ongoing basis, also through specialist teams, at all stages of the business lifecycle, from start-up to development and consolidation, to restructuring and internationalisation.

The department’s core activities are as follows:

  • day-to-day advice in commercial or corporate matters, through organised teams to meet the clients’ needs in real time;
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Our services include corporate secretarial services for handling all corporate formalities, company book running and compliance matters.

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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”.

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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