International Trade & Customs

Excellent track record in trade remedies work, and represents respondent and complainant entities as well as the EU Council. Also advises on high-stakes customs issues, and on WTO complaints.
Chambers Global

The Trade & Customs Group provides services on the movement of goods and services across borders and entering markets. Nctm has a well-established practice providing taylor-made legal advice on a wide range of customs law matters. Our lawyers have advised companies and Governments before EU and Third Countries’ customs authorities on market access restrictions, dual use, requests for export licences, technical barriers to trade, tariff-rate quotas, rules of origin, customs classification and preferential tariff agreements.

EU Trade Defense

Trade Defence is one of the cornerstones of our practice. We provide legal assistance to some of the largest EU Industries in Anti-Dumping and Anti-Subsidies cases, both in relation to the representation of their interest in administrative proceedings before the EU Commission and with respect to litigation in the Courts of Justice. Nctm acts as legal defender of the EU Council when trade defence regulations are challenged by third parties in the EU General Court and EU Court of Justice in Luxembourg. Due to our long-standing cooperation with the Commission, the firm has a privileged contact with many of the administrators within DG Trade, especially in the Trade Defence section.

WTO Dispute Settlement

Trade Defence is one of the cornerstones of our practice. We provide legal assistance to some of the largest EU Industries in Anti-Dumping and Anti-Subsidies cases, both in relation to the representation of their interest in administrative proceedings before the EU Commission and with respect to litigation in the Courts of Justice. Nctm acts as legal defender of the EU Council when trade defence regulations are challenged by third parties in the EU General Court and EU Court of Justice in Luxembourg. Due to our long-standing cooperation with the Commission, the firm has a privileged contact with many of the administrators within DG Trade, especially in the Trade Defence section.

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1/10/2015
International Trade & Customs - Administrative & European Public Law

On 10 September, 2015, the Council of the European Union, represented by NCTM, obtained a positive sentence before the Court of Justice of the European Union in the procedure of reference for a preliminary ruling in a dispute about anti-dumping duties imposed on import of ceramic tiles from China.

The dispute saw Bricmate AB – Swedish ceramic tiles importer – challenging the Regulation on anti-dumping measures adopted by the Council of the European Union on import from China and subsequently bringing a legal action in Sweden against the payment of anti-dumping duties. Bricmate’s action was based on the unreliability of some indicators concerning the damage suffered by European industry. Such argument was rejected by the Court of Justice.

The Court of Justice rejected Bricmate’s other reasons for appeal and confirmed the validity of the challenged Regulation that imposes anti-dumping duties on import of ceramic tiles from China.

NCTM team was made up of Bernard O’Connor, partner in charge of the firm’s Brussels office, and the associates Sébastien Gubel and Elena Bertolotto.

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1/06/2017
Corporate & Commercial Law - International Trade & Customs

The EU recognises as Geographical Indications many individual products that go to make up the Mediterranean Diet. Or, to reflect the first Recital of the Union’s GI law which provides for the protection of GIs, the EU law is aimed at recognising and protecting the living cultural and gastronomic heritage of Union food producers.

UNESCO goes further. UNESCO recognises the much wider concept of the Mediterranean Diet as part of the Intangible Cultural Heritage of Humanity. The group of countries promoting this initiative include 6 EU Member States (Cyprus, Croatia, Spain, Greece, Italy and Portugal) as well as Morocco.

Why does the EU and UNESCO give attention to the Mediterranean diet? The answer lies in understanding the term Diet. Today we often associate the word diet with sacrifice and the means to lose or control weight. This diminishes the original sense of the word. Thus it needs to be rescued from this diminished interpretation and given its full meaning.

 

Diet comes from the Greek diaita or ‘way of life’. As the UNESCO listing says:

 

The Mediterranean diet is characterized by a nutritional model that has remained constant over time and space, consisting mainly of olive oil, cereals, fresh or dried fruit and vegetables, a moderate amount of fish, dairy and meat, and many condiments and spices, all accompanied by wine or infusions, always respecting beliefs of each community.

It promotes social interaction, since communal meals are the cornerstone of social customs and festive events. It has given rise to a considerable body of knowledge, songs, maxims, tales and legends.

What has the Mediterranean Diet have to do with the law? And why should lawyers think about this wider cultural aspect of the Mediterranean diet when thinking about giving information to consumers? It comes down to thinking about what the law can and cannot do. And where the law fits into our common Mediterranean or European culture.

The law needs to recognise where it stands in the order of our civilisation. The law has a key role to play. But the law can never capture the complexities of the Mediterranean Diet. Why? Why because the law is only one part of our European or Mediterranean cultural heritage. And because it is only a part, it can never capture the whole.

But the law can do harm. And it can do most harm when it introduces new norms that do not respect the object and purpose of the law itself and the culture in which that law operates. The Traffic Light Labelling debate must be seen in this wider context.

There is general agreement that consumers must be informed so that they can make informed choices. But this general agreement becomes more nuanced or might even be said to break up when we consider how the consumer should be informed: on the label of a product or through education. Should the law merely inform the consumer in a passive manner or should the law be used to gently push or nudge the consumer in a certain direction or, going even further, should the law dictate certain actions and/or even prohibit certain foods.

The question becomes more difficult again when one considers what the consumer should be informed about. Do we just need to know about the quantities of calories and fats and proteins or do we need to know about the impacts of foods on our physical and mental well-being?

The basic EU law on the provision of information to consumers is Regulation 1169/2011. It provides that that all foods must be presented to the consumer with nutritional information. And that this nutritional information must be presented in a prescribed and neutral manner.

The question today is whether the law should abandon that neutrality and colour code the nutritional label such that those foods with high values for fats or salts or calories should have a red tagged beside them and those with low values a green colour tagged beside them and those in the middle a yellow colour This is the essence of traffic light labelling. Red for stop, green for go, and yellow/amber for take care.

The idea of traffic light labelling is that the consumer would be gently nudged into not purchasing products with lots of reds and to go for the products with lots of greens. If the EU were to introduce traffic light labelling rules it would be moving away from the neutrality of nutritional labelling which has been the basis of the law to date.

The problem is that many of the products that are part of the Mediterranean Diet would end up red. This would include olive oils to cheeses to pastas. And yet the Mediterranean Diet is known for the health and well being it brings us. It is ‘good’ nutrition in the widest sense of the meaning of the word diet.

Does traffic light labelling have the effect of nudging the consumer? Yes, it does. An on-line survey carries out by a Statale students, Valentina Cerrigone, mainly in Ireland and the UK showed that when confronted with a traffic light label showing Red for Fats, 59% said it was unhealthy. On this basis, the assumption is that they would tend not to purchase this product. So, if the purpose of the traffic light labelling is to nudge the consumer to make a particular choice, it works.

However, when these same consumers where shown that the product in question was extra virgin Olive Oil, 51% said they would change their minds. So, consumer who have time to look around and evaluate the nature of the ‘red’, they can overcome the ‘nudge’ and make different choices. But how much time do consumers have. The survey showed that the vast majority of consumers spend very short times looking. Colours make it easier to see. And this is the essence of nudging.

Clearly the introduction of traffic light labelling might do harm to the Mediterranean diet. Should the law be used to let this happen when it is known that the diet and the products that make it up contribute to one of the most healthy and long lived life styles. This is particularly so when it can be strongly argued that traffic light labelling is not in line with the law. The law prohibits health claims if they are not tested and true and approved by the appropriate competent authority. The use of health claims in relation to foods is severely restricted. The very idea of traffic light labelling is that Green is healthy and Red unhealthy. So in that sense the system is a health claim.

Care must be taken in how the law is used. And the law must not be used to diminish the law itself and the culture in which that law must operate. Ways other than the traffic light labelling must be found to answer the how and the what of food labelling law.

 

16/03/2017
Insurance Law - International Desk - Energy Law - Litigation & Arbitration - International Trade & Customs - Administrative & European Public Law

The UK is nothing if not pragmatic. The pragmatism has sometime been referred to as perfidiousness: perfidious Albion. What is sure is that the UK will approach the divorce with the EU in a very pragmatic fashion. It will seek to develop bi-lateral relations with its direct trading partners. It will seek to revive the trade pre erences in the Commonwealth. It will seek independent influence in all international bodies.

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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