• LATEST NEWS & INSIGHTS 1 March 2024

    Posted on: 01/03/2024


     

     

    FIXED-TERM AND NON-LISTED SPAS: AD NUTUM WITHDRAWAL IS ADMISSIBLE

     

    In Judgment No. 2629 of Jan. 29, 2024, the Supreme Court ruled for the first time on the validity of the Articles of association clause, granting shareholders the right to withdraw ad nutum from fixed-term SPAs (i.e. “limited by shares companies”), whose shares are not listed on a regulated market.

     

    The judgment, after summarizing the main cases of withdrawal from limited by shares companies, covered by Article 2437 of the Civil Code, focuses on the interpretation of the fourth paragraph of such article, according to which “The bylaws of companies that do not rely on venture capital market may set forth additional causes for withdrawal.”

     

    In the case brought to the Supreme Court, indeed, the bylaws of the company, which had been established for a fixed term, provided for the right of shareholders to withdraw with at least 180 days’ notice, even though Article 2437(3) of the Civil Code grants such a right only in companies established for an unlimited term.

     

    In this regard, the Court, first, points out that the rule under review does not ask for the additional cases of withdrawal to be specifically indicated, nor does it necessarily require them to be aimed at protecting the shareholder who disagrees with specific decisions of the majority of shareholders. Namely, the Court holds that the overall logic of withdrawal provisions protects the shareholder’s right to disinvest from the economic enterprise, whenever he or she deems such participation to be no longer convenient.

     

    Criticisms raised on such interpretation, based on the risk that the company loses its share capital, miss the mark, according to the Court.

     

    Indeed, on one hand, the Court remarks that, according to present regulation, protection of share capital is not of determinant relevance with respect to the issue at hand; on the other hand, it also notes that the procedure for the liquidation of the withdrawing shareholder entails the reduction of share capital only if it is not possible to place his or her shares with other shareholders, with third parties or by the company’s purchasing of treasury shares with the available reserves.

     

    In any case, the Court points out that it is always possible to inspect that the withdrawal is made in accordance with the general clause of good faith, i.e., is not made merely for the purpose of damaging the company.

     

    To sum up, according to the ruling under review, a clause in the bylaws, allowing a shareholder to withdraw at his or her own will, is legitimate, even for fixed-term companies which do not rely on venture capital, provided that the general clause of good faith and a reasonable notice are respected.

     

     

    m.deboni@macchi-gangemi.com

     

     

     

     

    ON THE HEDGING OF OTC DERIVATIVES: THE “COMPOSITE PURPOSE OF THE TRANSACTION

     

    By judgment no. 12 of 24 January 2024, the First Central Division of the Court of Accounts, in fully confirming the first instance judgment (Court of Accounts no. 2/2022), declared the lack of jurisdiction over the banks involved in the case in question and the compliance of the derivatives transaction carried out by the Region of Basilicata with the criteria of rationality and cost-effectiveness.

     

    The dispute stems from the derivative hedging transaction carried out by the Region of Basilicata in 2006, the underlying of which was a variable rate loan entered into to finance the reconstruction works following the earthquake of 9 September 1998. Through derivative contracts, the banks have synthetically transformed a floating-rate debt (of uncertain amount and with ex ante growth prospects) into a fixed-rate debt (whose amount and interest to be paid were certain). This allowed the Region to adequately plan its budget, also ensuring additional funds, although for a relatively small amount, but necessary for the completion of the post-earthquake reconstruction works already planned.

     

    The key points of the judgment are essentially two: (i) the first concerns jurisdiction over banks in proceedings that normally involve only the officials of local authorities held responsible for treasury liability for the damages caused to the local authority; (ii) the second concerns the merits of the proceedings, and therefore the transaction carried out by the Region and contested by the prosecution due to the alleged irrational and uneconomic aspects.

     

    As regards jurisdiction, the Court upheld the judgment delivered at first instance. The Prosecutor did not provide evidence capable of proving the existence of the service relationship on the part of the banks. In other words, the Prosecutor has not proven that the relationship between the banks and the Region was different from a relationship of a private nature and that the banks would have interfered or replaced the organizational structure of the Region, exercising public functions or that the banks have influenced the Region’s choices in the restructuring and management of public debt in a decisive manner to be liable for damages allegedly caused to the Region by the derivative transaction together with the officials and political representatives of the Region.

     

    The judgment of the first instance was also fully confirmed on the merits: the transaction met the criteria of rationality and cost-effectiveness and unequivocally fulfilled its hedging function.

     

    The transaction included a capital swap component which allowed the Region to obtain additional funds (albeit of a relatively small amount) necessary for post-earthquake reconstruction works. This resulted in the contractual mismatch between the notional amount of the derivative contracts and the amount of the underlying loan.

     

    This difference in the notional amounts was utilized by the prosecution as a presumptive index of the lack of the hedging function of the transaction, but it was correctly framed by the Court. According to the Court, this difference was aimed at achieving the additional funds and therefore, it was aimed at collecting the funds necessary to carry out the reconstruction works.

     

    The Court thus emphasized the “composite purpose of the transaction, consisting both in protection against interest rate risk and in ensuring that the Region had the necessary funds to finance the earthquake reconstruction works” as well as the perfect correspondence between the variable leg of the derivative (paid by the banks to the Region) and the amounts that the Region had to pay pursuant to the underlying loan “allowing derivative contracts to pursue a full and indisputable hedging purpose“.

     

    In this way, the Court reaffirmed the rationality of the transaction, which is proven by the ability of the transaction to cover the investor (public entity) against the risk of increasing interest rates above a certain threshold that could have been incompatible with the financial statements of the public entity. “By establishing a fixed interest rate, as opposed to the original variable interest rate, the investor instead neutralizes this risk and can plan expenditure commitments with the certainty that the interest expense can never exceed the predetermined threshold.”

     

    Moreover, on the basis of the forward curve, such fixed interest rate was lower than the estimated floating interest rate for at least half of the duration of the derivative contracts.

     

    The Court did not even doubt the cost-effectiveness of the transaction since the fixed interest rate agreed with the banks in the derivative contracts was more advantageous than the one the Region could have obtained on a similar and hypothetical fixed-rate loan and was aligned with the market interest rates applicable at the time.

     

    In conclusion, leaving aside the issue of jurisdiction on which the Court retraces and applies to the case the principles already enunciated by case law, it is on the issue of the hedging of derivatives that the judgment unfolds with particular value. In assessing the correlation between the underlying debt and the hedging of derivative contracts, the Court emphasizes the composite purpose of the transaction, evaluated in concrete terms, thereby disagreeing with the abstract and formalistic approach used by the prosecution and, in some cases, also by civil courts in Italy (see, among others, Court of Genoa, no. 698/2021).

     

     

    m.divincenzo@macchi-gangemi.com

     

     

     

     

    THE NEW PUBLIC CONTRACTS CODE AND THE IMPORTANCE OF THE NEW PRINCIPLES FOR THE AWARDING OF WORKS AND SERVICES.

     

    Among the more important innovations of the new Procurement Code is first and foremost, the “crystallization” of new principles intended to ensure the achievement of the result, that is the awarding of the public contract, by the administration.

     

    Legislative Decree No. 36/2023 that constitutes the new Procurement Code allocates a general part (Part I of Book I) that is very important for the codification of the principles that govern the entire matter of public contracts.

     

    This is an important innovation compared to the previous code, which merely reported the general principles of administrative action of constitutional or unitary European derivation and, substantially, made a dynamic reference to those contained in Law No. 241/1990.

     

    The new Code, on the other hand, introduces a series of principles in the sector’s regulations, which, according to the Legislator, should be endowed with a precise operational value, with the explicit, dual objective:

     

    (a) to clarify the objectives underlying the adoption of this new legislative act for operators and interpreters;

     

    (b) and enable room for discretion for contracting authorities that are thus prompted to consider these principles as guidance criteria and motivational supports for the identification of the rules to be actually followed throughout their administrative activities.

     

    Therefore, the principles applicable to procurement procedures are listed from Article 1 to Article 12, considering the first three key principles (1) outcome, (2) trust, and (3) market access, as criteria for interpreting and applying the provisions of the Code:

     

    – the principle of outcome, calls for maximum timeliness and the best possible relationship between quality and price, while respecting the principles of legality, transparency and competition;

     

    – the principle of trust, closely related to the outcome, evokes “mutual trust in the legitimate, transparent and correct action of the administration, its officials and economic operators.”

     

    – in addition, contracting authorities and awarding entities must facilitate market access for economic operators. This principle of market access is related to the principles of competition, impartiality, non-discrimination, publicity, transparency and proportionality.

     

    Thus the Legislator felt the need to give form and substance to principles that are suitable in the field of public contracts, to implement the constitutional principle of the public administration’s good performance under Article 97 of the Constitution, clearly believing that given the current historical phase it was necessary to direct and urge public administrations to take it into greater account, encouraging them – during their administrative discretion – to give privilege to the result over the procedural autonomy understood as a mere “fulfillment.”

     

    For this reason, it is believed, that among the most innovative aspects of the new code, the fundamental role is undertaken precisely by the illustration of these principles, which – in terms of scope – is one of the most innovative and relevant aspects of the new Procurement Code. These principles, as has been correctly pointed out by case-law, allow the proceeding administration to adopt a new modus operandi, a new cultural approach, according to which the regulation of the awarding of contracts should no longer be based on (and heavily conditioned by) compliance with formal legality, through meticulous constraints that can feed the so-called officials’ “fear of signature”, hindering the efficient development of procedures, but rather on the principle of the centrality of the result of administrative action, which is ultimately directed at awarding the public contract.

     

     

    n.digiandomenico@macchi-gangemi.com

     

     

     

     

    THE DIGITAL SERVICES ACT, THE NEW RULES FOR INTERNET SERVICE PROVIDERS APPLICABLE FROM 17 FEBRUARY 2024.

     

    On 17 February 2024, the Digital Services Act, which introduces harmonised rules throughout the European Union for the digital services sector and online platforms with the aim of ensuring a safe and reliable online environment for users and countering the spread of illegal content and services, became fully applicable.

     

    The Digital Services Act (Regulation EU 2022/2065) introduces rules regarding the single market for digital services, strengthening the obligations of commercial operators in the sector to protect end-users. This Regulation is part of the “Strategy for a Digital Single Market for Europe” and replaces, while innovating, the previous Directive 2000/31/EC on e-commerce. The Digital Services Act has been in force since 16 November 2022, but its rules have become fully applicable for all operators in the sector since 17 February 2024, while for large platforms and search engines they are already applicable as of 25 August 2023. In this respect, it is referred to VLOPs (very large online platforms) and VLOSEs (very large online search engines), so the Regulation under review provides specific rules for online platforms and search engines whose average monthly number of service recipients in the European Union exceeds 45 million.

     

    The Data Services Act applies to all online intermediaries (so-called Internet Service Providers – ISPs) that provide their services within the Union, regardless of whether the provider is located in a Member State or not, what matters is that its service has a significant number of European users as recipients. Examples of digital services to which this regulation applies are marketplaces, social networks, app stores, cloud services, search engines, rental platforms, Internet access services.

     

    More specifically, the Digital Services Act applies to providers of three types of services: i) Services of mere transmission (so-called ‘mere conduit’ services), which means services that provide access to a communication network and enable the transmission of information provided by a user; ii) Services of temporary storage (so-called ‘caching’ services), they are services through which information is automatically stored on an intermediate and temporary basis with the sole purpose of facilitating its transmission to other recipients; iii) Services of information storage (so-called ‘hosting’ services), which means services that enable the storage of information provided by the user at his request, as well as the sharing of information and contents online.

     

    The Data Services Act introduces, first of all, general obligations applicable to all ISPs (Articles 11-15), specifically, the providers of online intermediary services must set up special contact points to facilitate the provider’s relations with the recipients of the service and with the national and European authorities; they must appoint a legal representative in the EU if they are based outside the EEA; they must prepare conditions of use of their service and publish annual ‘transparency reports’.

     

    The subsequent provisions provide for obligations addressed only to hosting service providers (Articles 16-18), who must set up a mechanism for reporting online content through a so-called “notice and take down” system, which means that the hosting provider must inform the recipient of what content may not be published and what the consequences of such behaviour are. If illegal/incompatible contents with its Terms and Conditions are found, prompt and reasoned measures must be taken (for example restrictions on the visibility and monetisation of the content, restrictions on the account of the person responsible, blocking of payments).

     

    With regard to the additional obligations applicable to online platforms (Articles 19-28), providers must set up internal complaint management systems (the right to complain can be exercised within six months from the decision complained), giving priority to the reports of the so-called Trusted Flagger, which are public or private entities with special requirements of competence and independence with respect to the ISPs. Furthermore, in the event of a dispute, recipients of services must be guaranteed the right to apply to a court or to settle the dispute out-of-court. Moreover, the Data Services Act includes the prohibition to introduce the so-called dark patterns, which are deceptive navigation interfaces/paths aimed at manipulating and influencing the choices of service users, as well as the prohibition to use particular data for profiling for advertising purposes (while for minors profiling using even common data is absolutely prohibited).

     

    With reference to the obligations applicable to marketplaces (Articles 29-32), the service provider must protect consumers by guaranteeing the security and transparency of the platform by requiring special traceability requirements from traders who intend to offer their products/services on the online marketplace.

     

    While as regards the additional obligations addressed only to VLOPs and VLOSEs (Articles 33-43), they are required to carry out specific assessments of the risks arising from the design, operation, and use of the service itself and to introduce mechanisms to mitigate them. The main risks include the diffusion of illegal contents and contents that are harmful to physical and mental health, discriminatory, gender-based violence, terrorist content, content that violates fundamental rights such as freedom of expression and information, and content that may harm minors.

     

    Lastly, it should be underlined that the Digital Services Act provides for the designation of a specific “Digital Services Coordinator” for each Member State, that assumes the role of supervising and verifying the correct application of the Regulation (in Italy, this role has been assigned to AGCOM), whereas the Commission has exclusive supervisory power as regards VLOPs and VLOPEs.

     

     

    f.montanari@macchi-gangemi.com
    l.caprio@macchi-gangemi.com

     

     

     

     

    THE INTRODUCTION OF THE TWO-YEAR PREVENTIVE AGREEMENT BETWEEN TAXPAYERS AND THE ITALIAN TAX AUTHORITIES.

     

    Legislative Decree no. 13 of February12, 2024, in force since February 22, 2024, introduced the two-year preventive agreement, which aims to rationalise returns obligations, as well as to encourage spontaneous compliance by minor taxpayers.

    Legislative Decree no. 13 of 2024, implementing the Delegated Law to the Government for the Tax Reform (Article 17, Law no. 111 of 2023), introduced in Title II the two-year preventive agreement, that provides for the proposal of the Italian Revenue Agency for the two-year settlement of the income deriving from the exercise of business activity or the exercise of arts and professions for the purposes of direct taxes and of the value of net production for the purposes of Regional Tax on Productive Activities (“IRAP”).

     

    The two-year preventive agreement is targeted at smaller taxpayers (both individuals and partnerships and assimilated entities), holders of business income and self-employed income deriving from the exercise of arts and professions who carry out their activities in Italy and who, alternatively:

     

    – apply the so-called Synthetic Index od Reliability (“ISA”);

    – opt for the forfeiture regime pursuant to Law no. 190 of 2014 (for such taxpayers, the arrangement is applied on an experimental basis for fiscal year 2024).

     

    For the purposes of the application of such agreement, it is also necessary that the taxpayer, with respect to the fiscal year covered by the proposal, has no tax debts or, in any event, has discharged debts in excess of Euro 5 thousand (including interest and penalties), deriving from taxes managed by the Italian Revenue Agency or from welfare contributions.

     

    At the same time, the legislation provides for the following exclusion grounds that preclude the application of the institute:

     

    – the failure to file a tax return in at least one of the three fiscal years preceding the application of the agreement;

    – the conviction for one of the tax crimes set out in Legislative Decree no. 74 of 2000 or for the crimes of false corporate communications, money laundering, self-laundering and use of money, goods or benefits of unlawful origin, committed in the last three fiscal years preceding the application of the agreement;

    – the start of the activity in the fiscal year preceding the one referred to in the definition proposal.

     

    The procedure envisaged by the rule provides, firstly, for the communication, by the taxpayer, of its data through the software set up by the Italian Revenue Agency (in 2024, the deadline for making the software available is June 15); then, the Italian Revenue Agency issues the agreement proposal, followed by the taxpayer’s eventual acceptance (in 2024, the deadline for acceptance is October 15).

     

    By accepting the proposal, the taxpayer is obliged to report the agreed amounts in the tax returns for the fiscal years covered by the agreement. In any event, in the two-year period covered by the agreement, the taxpayer will be obliged to: (i) file income and IRAP tax returns; (ii) comply with accounting obligations; and (iii) make ISA disclosures.

     

    Among the benefits deriving from the acceptance of the proposal, the rule provides that the fiscal years covered by the agreement may not be subject to tax assessment, unless audits reveal that there are any grounds for exclusion from the regime.

     

    After the expiry of the two-year period covered by the agreement, as long as the taxpayer still meets the access requirements, and in the absence of the grounds for exclusion, the Italian Revenue Agency makes a new proposal for the agreement relating to the following two-year period, which the taxpayer may again join.

     

     

    g.sforzini@macchi-gangemi.com
    d.michalopoulos@macchi-gangemi.com

     

     

    DISCLAIMER: This newsletter merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi. The newsletter does not replace individual legal consultation. Macchi di Cellere Gangemi assumes no liability whatsoever for the content and correctness of the newsletter.

     

     

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