• LATEST NEWS & INSIGHTS 14 April 2023

    Posted on: 14/04/2023



    The precautionary measure adopted as a matter of urgency by the Italian Data Protection Authority has turned into a querelle between two factions: those who believe that this is intended to block innovation and technology and those who argue that the protection of people’s rights and freedoms is superior to the development of artificial intelligence (AI) tools.


    ChatGPT is a particular type of “Generative AI” or “Generative Artificial Intelligence”: a machine that can generate a new piece of information from a series of inputs given to it. The inputs consist of thousands of personal data collected in two stages: i) during training of the AI (with data collection already available online); ii) during use of the chatbot (where the user provides additional information).


    The root cause of the querelle can be found in a bug, which a few days ago resulted in a computer security breach: excerpts of ChatGPT conversations of other users, as well as a range of other information (such as credit card data), were visible for about nine hours.


    The objections raised by the Italian Garantor are:


    1. lack of a legal basis for collecting the data in the chatbot training phase;


    2. lack of privacy notice regarding the additional information the user provides;


    3. inaccuracy of the data provided by the chatbot, as it was found that the chatbot often associates real and correct data with inaccurate data, thus proposing a representation that is not in line with the real identity of the person;


    4.absence of age verification systems for minor users.


    The world of data protection (and beyond) has been divided:


    – on the one hand, there are those who consider the Guarantor’s measure proportionate and due, on the basis that public data cannot be treated freely and that a disclosure must be made in accordance with the GDPR. In this sense, alerts that the information could be inaccurate and that there is no appeal to the fact that ChatGPT4 is in an experimental phase and that, therefore, any flaws in its use are to be justified would not be sufficient; moreover, the mere statement that the service is precluded to minors under the age of 13 would not exclude that they could still access it and receive answers unsuitable with respect to their degree of development and self-awareness.


    – On the other hand, there are those who believe the measure is hasty and that it was issued for issues of “visibility” of the Guarantor. For the latter, OpenAI provides a privacy policy that is considered adequate; it has its own representative in Europe; the information cannot be expected to be necessarily correct, since ChatGPT does not offer itself as an information service; and, lastly, the service is forbidden to minors under 13 years of age and there is a channel to report the profile of minors.


    OpenAI, which as a first response imposed a block on Italian users, at the same time expressed its willingness to cooperate with the Garantor. In this regard, the videoconference meeting with the Guarantor on April 5 was emblematic, in which OpenAI pledged to strengthen transparency in the use of the personal data of those concerned, existing mechanisms for exercising rights, and guarantees for minors. It will then be up to the Guarantor again to assess the appropriateness of these measures.


    Who is right in this matter is hard to say; it will certainly be a “hot” topic in the months to come, not least because of the increasing importance, including in terms of financial investment, that artificial intelligence is gaining.








    Brief update of civil procedure according to the latest Supreme Court rulings filed in March 2023.


    In its Order no. 6318 of March 2, 2023, the Court of Cassation ruled that – in the case of notification by certified email (PEC) – the power of attorney issued in analog form and transformed into an electronic copy requires a certification of conformity with the original by the defense attorney, to be included in the notification report, under penalty of inadmissibility of the appeal.


    The Court of Cassation points out that the lack of certification of conformity of the power of attorney served together with the appeal by means of certified email (PEC) did not imply the inadmissibility of the notification but a mere irregularity that could be remedied , in the context of filing the paper file, with the timely filing of the appeal and the power of attorney in the original analog form, together with the missing certificate.


    But this was, precisely, in the “context of filing the paper file,” which today has been totally replaced by the obligation of telematic filing of documents even in the case of the Court of Cassation.


    Due to the lack of certification of conformity of the power of attorney in the notification report, in a context of telematic filing, the Court of Cassation has therefore concluded for the inadmissibility of the appeal.


    This should therefore be always taken into account when notifying an appeal before the Court of Cassation.


    * * *


    In ruling no. 6944 of March 8, 2023, regarding telematic filing of a procedural document, the Court of Cassation ruled that – following the outcome of the clerk’s checks – the presence of a “fatal error” which, is not necessarily the sender’s fault, only expresses the system’s inability to upload the document into the telematic file preventing the clerk from accepting the filing, apart from enabling allowing its possible renewal with remittance does not determine invalidating effects, when the purpose is achieved under Art. 156, 3rd para, code of civil procedure.


    On the basis of this principle, the Court of Cassation held that there were grounds for remanding the defendant who – despite having ordered the telematic filing by the deadline day – found that, due to a computer and telematic problem, which was absolutely unforeseen and unforeseeable, the system took several minutes to upload the telematic envelope, so that the PEC’s related acceptance, delivery and even the outcome of automatic checks were generated a few minutes (only 12) after midnight.


    * * *


    With Order no. 9102 of March 31, 2023, the Court of Cassation reiterated (repeating what had already been established by Cass. No. 40035/2021) that “for the purposes of the existence of the condition of processability referred to in Legislative Decree no. 28 of 2010, Art. 5, paragraphs 2 and 2-bis, what is relevant in cases of compulsory mediation ope iudicis is the useful carrying out of the mediation procedure, within the adjourned hearing set by the judge, to be understood as the first meeting of the parties before the mediator and concluded without an agreement, and not the initiation of it within the term of fifteen days indicated by the same delegating judge through the order regulating the mediation.


    Thus, the Court ruled out the peremptory nature of the 15-day deadline to submit the mediation application because: (a) there is no express sanction of unfeasibility in the case of failure to initiate the delegated mediation within the 15-day period; (b) the activation of delegated mediation does not constitute a jurisdictional activity and, therefore, the application of peremptory deadlines in the absence of express provisions to that effect appears improper; (c) the scheduling of the first hearing following mediation must take into account the maximum term of the mediation duration; and finally (e) because the ratio legis of mediation itself (i.e., the search for the best possible solution for the parties) is ill reconciled with the peremptory nature of the deadline.









    In a recent judgment, in the context of the negotiated crisis resolution initiated by the debtor, the Court of Palermo drew its attention to the objective requirements in the absence of which the protective measures must be revoked.


    It is worth recalling that, with the application for the appointment of the expert at the start of the negotiated settlement proceedings, as well as at a later stage, the entrepreneur may request the application of asset protection measures, provided for and governed by Articles 18 et seq. of the Code of Corporate and Insolvency Crisis (CCII). Following publication in the commercial register, the creditors concerned may not acquire pre-emption rights unless they are agreed with the entrepreneur, nor they may initiate or continue executive or precautionary actions on the entrepreneur’s assets or on the assets and rights with which the business activity is carried on. Protective measures must, however, be confirmed by the Court in accordance with the provisions of Art. 19 CCII.


    It is clear that such measures are sometimes extremely important for companies wishing to address their state of crisis by using the negotiated crisis resolution instrument and that, therefore, the Court’s scrutiny becomes decisive.


    In the case recently submitted to the Court of Palermo, the appellant company, having the subjective prerequisite dictated by Article 12, para. 1. CCII (and therefore being a commercial entrepreneur in a condition of economic-financial imbalance), had filed an application for a negotiated crisis resolution and had requested the application of the asset protection measures.


    On the day immediately following the publication in the Commercial Register of the application and the expert’s acceptance, the applicant had filed the application for confirmation of the measures.


    By the decree of 2 March 2023, the Court of Palermo scrutinises in very clear terms on the objective requirements necessary for the confirmation of the measures, deriving them, in particular, from five provisions of the CCII, namely: (i) the reorganisation of the company must be reasonably achievable (Article 12, paragraph 1, CCII), therefore (ii) there must be a concrete prospect of reorganisation (Article 17, paragraph 5, CCII), (iii) the measures requested must be functional to the successful outcome of negotiations (Article 19, paragraph 4, CCII) and finally (iv) the Court may extend the duration of the measures already ordered only for the time necessary to ensure the successful outcome of the negotiations and may revoke them when they do not satisfy the objective of ensuring the successful outcome of the negotiations or appear disproportionate to the prejudice caused to the creditors (Art. 19(5) CCII).


    In the light of such provisions, the Court of Palermo, adopting the considerations already expressed in a precedent of the Court of Piacenza, held that, in a perspective of assessing the extension of the granting of protective measures, a rational, credible and not manifestly unreasonable prospect of reorganisation” is required, stating that protective measures are justified by the intention to protect the entrepreneur’s assets from initiatives that may jeopardise the company’s reorganisation.


    On this assumption, the Court of Palermo listed the elements, both extrinsic and intrinsic, that would be indicative of the suitability of the negotiated settlement to pursue the objective of reorganisation.


    The elements that must exist are:


    1. “the express expression of willingness to negotiate by a group of creditors broadly representative of the entire creditors;

    2. the expert’s affidavit of trust (which can be inferred from the positive opinion rendered also on the basis of the negotiations that may have already taken place and the preliminary investigations carried out);

    3. the absence of outstanding enforcement or liquidation initiatives;

    4. the clarity of the recovery strategy;

    5. the reasonableness and soundness of the assumptions of the draft recovery plan;

    6. the fact that continuity is not destroying resources, so that it can be assumed with a good degree of tranquillity that any stay is unlikely to prejudice creditors;

    7. the fact that the prospect of liquidation can be imagined to be exorbitant for the majority of creditors.”


    Well, the case submitted to the examination of the Court of Palermo presented antithetical characteristics with respect to the above-mentioned requirements. In particular, there were pending real estate execution proceedings concerning the property in which the appellant company itself carried on its business. Nor there was any positive orientation on the part of the creditors, who had ‘shown closed positions‘. Finally, the recovery plan itself assumed revenues that were not in line with historical data and showed discrepancies with the findings of a technical expert’s report carried out in the enforcement proceedings (a report that had revealed different timescales for the achievement of full revenues than those represented and a different assessment of the composition of the revenues themselves).


    Based on these considerations and criticisms, the Court has therefore concluded by dismissing the Article 19 paragraph 1 CCII petition and revoked the protective measures that were the subject of the debtor’s petition.









    In its judgment no. 384 of March 11, 2023, Sec. V of the Council of State ruled on an issue that is rather common in the field of public tenders : the contracting authority either annuls the entire tender procedure as a matter of self-defense, or does not award the tender to the runner-up on the basis of the unsuitability of the bid and unsuitability in relation to the new procurement needs despite the ruling of the Administrative Judge that annuls an award decision and simultaneously sanctions the need to scroll through the ranking list in favor of the second-classified bidder.


    In other words, the administration does not follow up on the judge’s decisum by invoking – in its favor – the power under Article 95, paragraph 12 of the Public Contracts Code (legislative decree no. 50/2016), according to which: “contracting authorities may decide to refrain from awarding a contract if no bid is convenient or suitable in relation to the subject matter of the contract.”


    Well, in order to clarify the assumptions and limits of the above power not to award a tender, the Council of State considers it crucial to assess the administration’s reasoning. In particular, if to justify the decision not to award the contract, the administration recalls profiles and assessments already made by the jury, a substantial revision of these judgments occurs; if, on the other hand, there is an invocation of needs that have arisen after the conclusion of the bidding process, this is outside the regulatory framework marked by the provision under review, which on the other hand requires that the suitability or appropriateness of the bid be evaluated “in relation to the subject matter of the contract,” not with reference to events that were not contemplated in the contractual program set at the basis of the tender (in relation to which, instead, the contracting authority should exercise powers of revocation of the notice and renewal of the tender).


    In any case, in the phase of implementation of the judgment and its relative effects of adaptation: “The exercise of the power not to award suffers from further limitations, since it is necessary to avoid that, in the presence of an adjudication awarding the victorious plaintiff the right to an adjudication, the good of life attributed by the declaratory judgment is nullified by the discretionary decision of the administration not to award. The power not to award, according to logic, shall be exercised before adopting the final award decision (which also explains why it is a power reserved to the contracting authority and not to the selection committee: also Council of State, V, Nov. 27, 2018, no. 6725); once the award has been made, only the powers of self-protection possibly remain (Art. 32, paragraph 8, of the Public Contracts Code).”


    Therefore, in the case where the adjudication has expressly established the right to the award and the right to take over the contract, the preclusion (as an effect of the adjudication) to the exercise of power not to proceed with the award provided by Article 95, paragraph 12, of the Public Contracts Code is also justified on a systematic level. In the same sense, there is a previous decision of the Council of State Sec. V, June 28, 2021, no. 4904, which declared the nullity of the non-awarding measure adopted under Article 95, paragraph 12 of Legislative Decree no. 50/2016, on the assumption that an assessment of convenience subsequent to the adjudication, is certainly symptomatic of the circumvention of the adjudication.


    According to the Council of State the contracting authority’s decision not to award and consequently not to order the second classified in the contract to take over, is in sharp contrast with the specific constraints arising from the adjudication. According to the judge, it is not possible to: “find a suitable regulatory basis in Article 95, paragraph 12 cit., beyond consideration by the existence of the adjudication and the conforming constraints that weigh on the administration.”


    Lastly, according to final judgment, the power of public administration is highly reduced.



    n.digiandomenico @macchi-gangemi.com






    In judgement no. 7180 of 4 March 2022, the Supreme Court once again intervened on the subject of the running of time in the case of the resumption of suspended civil proceedings.


    Article 305 of the Code of Civil Procedure regulates the resumption of civil proceedings, which, in order to avoid the declaration of nullity and voidness, must be carried out by the interested party within a peremptory period of three months, as reduced from the original six months by Law No. 69 of 18 June 2009.


    In particular, the Supreme Court, in judgement no. 7180 of 4 March 2022, reaffirms what was confirmed by the Joint Sections in judgement no. 14854 of 2006, according to which, in the case of resumption by way of appeal (ricorso), “once a cause of interruption of the proceedings has occurred, in the presence of a mechanism of reactivation of the interrupted proceedings, which is intended to be realised by distinguishing the moment of the renewed edictio actionis from that of the vocatio in ius,” the peremptory term provided for by article 305 of the C.P.C. refers exclusively to the lodging of the appeal (ricorso) with the clerk of the court, “so that once this has been done within the time limit, that time limit no longer plays any role, since the subsequent fixing by the same judge of a further time limit, intended to ensure the proper resumption of the interrupted cross-examination of the other party, while presupposing that the previous time limit has been complied with, now disregards it and responds solely to the need to ensure compliance with the rules proper to vocatio in ius“. (see also Cass., 31.7.2012, no. 13683, in Just. civ. Mass., 2012, 71002; Cass., 20.5.2011, no. 11260).


    In other words, in the case of resumption by way of appeal (ricorso), the peremptory time limit referred to in Article 305 of the Code of Civil Procedure applies only to the renewal of the edictio actionis (in the present case, by lodging the appeal (ricorso) with the court registry) and not also to the vocatio in ius.


    Consequently, if the notification defect affects the notification of the summons and the decree setting the hearing, the judge who finds it to be null and void must order the renewal of the notification, by analogical application of art. 291 of the Code of Civil Procedure, within a necessarily peremptory term and, only in case of failure to comply with this term, will determine the possible extinction of the proceedings, by the combined provisions of art. 291, paragraph 1, and art. 307, paragraph 3.


    Finally, it is necessary to specify how, in our system, by virtue of the principle of the equivalence of forms, the act of resumption of the interrupted procedure may consist, according to the case, in a resumption summons, an appearance or an appeal (ricorso), in which, in each case, the subjective and objective elements necessary to reactivate the dormant procedural relationship must be contained” (Cass. 24.2.2004, n. 3623).


    The case law also confirms the fungibility of the three forms of introduction (Cass., 4.10.2012, no. 16924, Cass., no. 2107 1.10.2009). In particular, a resumption summons should be notified:


    (i) if the event has affected the party prior to the appearance in the trial, if the other party has already filed the appearance or if the time for its filing has not yet expired, provided that the time remaining after the interrupting event is sufficient to meet the requirements of Art. 163 c.p.c.;


    (ii) if the interruptive event affects the party who has already filed an appearance through a defense counsel, but does not affect the latter (Art. 300, para. 2, c.p.c.), and there is a hearing already scheduled that allows compliance with the time limits set by Art. 163 bis c.p.c.;iii) finally, if the interrupting event concerns the defense counsel of the party that has been brought before the Court through him (art. 301, co. 2, c.p.c.) and a further hearing has been fixed before the event itself, which again allows the time for appearance to be met.


    In all other cases, it is better to proceed by appeal (ricorso) or appearance brief.


    We have seen that in the case of an appeal (ricorso), the peremptory time limit referred to in Article 305 of the Code of Civil Procedure refers to the edictio actionis and not to the vocatio in ius, but what happens in the case of a summons? On this point, the Supreme Court, in its judgement no. 16166 of 9 June 2021, has pointed out that “compliance with the time limit is ensured by the reactivation of the procedural relationship with the completion of the first formality relating to the chosen model, so that when the reactivation takes place by appeal (ricorso), instead of by summons or served appearance, the filing of the document with the clerk is relevant for this purpose“.


    In conclusion, in order to be able to resume the judgment within the peremptory time limit referred to in Article 305 of the Code of Civil Procedure, the following must be done:


    (i) in the case of resumption with an appeal (ricorso), the filing of the document with the Court within the peremptory period of 3 months from the interruption, it being possible to serve the document and the request to set a hearing also subsequently, while, on the contrary,


    (ii) in the case of resumption with a summons, the serving of the notice of summons on the opposing parties within the peremptory period of 3 months, it being possible to file it subsequently at the registry.


    In other words, the resumption will be considered timely made if the first procedural activity to be performed depending on the type of act chosen (filing of the appeal (ricorso) or request for service of the summons) has been accomplished within the aforementioned time limit provided for in Article 305 of the Code of Civil Procedure.






    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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