• LATEST NEWS & INSIGHTS 16 February 2024

    Posted on: 16/02/2024


     

    EUROPEAN COURT OF JUSTICE CLARIFIES WHAT ARE MOTOR VEHICLES MANUFACTURERS’ OBLIGATIONS WITH REGARD TO THE ACCESS TO TECHNICAL INFORMATION FOR INDEPENDENT OPERATORS.

     

    With a ruling rendered on Oct. the 5th, 2023, the European Court of Justice (Eighth Chamber) once again was called to clarify the scope of Article 61 of Regulation (EU) 2018/858 of the European Parliament and of the Council of May the 30th, 2018 on motor vehicles Manufacturer’s Obligations to Provide Independent Repairers with Vehicle Repair and Maintenance Information.

     

    Free and full access to technical information on the electronic diagnostic and control systems of cars by independent workshops, i.e., unrelated to the repair networks of the various brands, is a topic dear to the European legislator, since the introduction of Regulation (EC) No. 1400/02 (Art. 4 § 2.).

     

    This right has been reiterated and strengthened in subsequent regulations by exemption (e.g., Recital 62 of the Additional Guidelines sub-Regulation (EU) 461/20210), finally finding specific and organic discipline in Regulation (EU) No. 2018/858, on type-approval and market surveillance of motor vehicles and their trailers, systems, components and separate technical units intended for such vehicles.

     

    In a nutshell, manufacturers must allow workshops, which are not part of their repair networks unrestricted, standardized and non-discriminatory access to vehicle ODB information (on-board diagnostics), gear and other equipment, tools for vehicle repair and maintenance, including full references and downloadable applicable software (Article 61 Regulation (EU) No. 2018/858 cited above).

     

    This provision was put in place in order to make competition effective between the repair services offered by entities affiliated with the various Manufacturers and independent repair shops on the market; otherwise, also due to technological development, the latter would not have had real possibilities to pose themselves as a concrete alternative in car servicing.

     

    In its decision of October 5th, 2023 rendered in the Case C-296/22 A.T.U. Auto-Teile-Unger GmbH & Co. KG Carglass GmbH v. FCA Italy S.p.A, the ECJ has determined the concrete scope of the aforementioned obligation to provide information; the ruling on the interpretation of Article 61 of Regulation (EU) No. 2018/858 came as a preliminary evaluation in the context of the action brought by two independent operators (the A.T.U. and Carglass) forced – according to the thesis they put forward – to register with FCA by means of personal connection data on dedicated servers for the use, with a special subscription, of generic diagnostic equipment to be connected to the said server via the Internet.

     

    This unilateral imposition of FCA had been perceived by claimants as a violation of the principle of free and non-discriminatory access to ODB information and diagnostics, pursuant to the aforementioned Article 61(1) and (4) of Regulation (EU) No. 2018/858; in fact, such access mode, appeared to be at odds with the conditions set forth in the aforementioned provision.

     

    With its ruling, the Court reaffirmed the need for effective competition in the market for vehicle repair and maintenance services so that independent garages can compete with the official networks of the various manufacturers, also specifying, in the wake of other precedent (Judgment 27.10.2022, ADP and Gesamtverband Autoteile-Handel – C-390/21 EU:c:2022:837), that ways of accessing the aforementioned information via the Internet through a server designated by a manufacturer or after registration of independent operators are illegitimate.

     

    The interpretation of Article 61(1) and (4) of Regulation (EU) No. 2018/858 has therefore been set in the following terms: “it [Article 61 – ed.] precludes a car manufacturer from making access by independent operators to vehicle repair and maintenance information as well as on-board diagnostic information, including write mode access to such information, subject to conditions other than those laid down in that regulation” (see decision).

     

    The aforementioned principle must be kept in mind by Manufacturers when modulating/concretely structuring the channels of access to technical information on car electronic diagnostic and control systems in favour of independent repairers.

     

     

    e.storari@macchi-gangemi.com

     

     

     

    WHO IS INVITED TO THE “INTEREST RATES PROM”?

     

    In a concrete application of the principles expressed by the Court of Cassation, the Court of Appeal of Trieste ordered an Office Technical Consultant (OTC) to recalculate the entire financial repayment plan of a loan agreement with an interest rate clause that had been declared null and void.

     

    As is now well known, in its decision of 4 December 2013, the European Antitrust Commission (the “Commission“) found that the fixing of the Euribor rate between 29 September 2005 and 30 May 2008 was unlawful because it had been manipulated by a pool of banks. In particular, the Commission sanctioned the banks involved – Barclays, Deutsche Bank, Société Générale and RBS – for the illegal agreement that developed in the context of EIRDs (Euro interest rate derivatives). These financial products are used to manage the risk of interest rate fluctuations and their value is linked to the evolution of a reference interest rate, such as the London Interbank Offered Rate (LIBOR) or the Euro Interbank Offered Rate (EURIBOR). The Commission concluded that the cartel, through the exchange of information, affected the normal functioning of the EIRD market by raising EURIBOR in order to favour the circulation of derivative products at a distorted price.

     

    Exactly 10 years later, in its decision no. 34889 of 13 December 2023, the Court of Cassation declared the clause fixing the interest rate of a leasing contract null and void because it was calculated by reference to the Euribor rate.

     

    The main novelty of this judgment is that the nullity of the rates does not take into account the direct participation of a banking institution in the Euribor manipulation panel.

     

    In particular, the Court specified that the Commission’s decision must be considered “privileged evidence” in support of the request for the declaration of nullity of the manipulated rates (and the consequent recalculation of the interest in the period involved by the manipulation). And this shall apply “regardless of whether or not Banco Bpm S.p.A. participated in the agreement” since the prohibition set forth in Article 2 of Law No. 287/1990 applies to “any contract or transaction downstream that constitutes the application of unlawful agreements concluded upstream”.

     

    According to the Court, the legislator’s intention was to prohibit distortion of competition in a broad sense. Therefore, any form of distortion of competition constitutes conduct relevant to establishing a violation of Article 2 of the so-called Antitrust Law.

     

    As expected, the Court of Appeal of Trieste, in its decision of 24 January 2024, has expressly and directly applied the principles of the Court of Cassation set out above. Faced with a loan agreement with a variable interest rate linked to Euribor, the Court of Appeal ordered the appointment of a technical accountant to redetermine the debit/credit relationship between the parties, replacing the Euribor rate (for the instalments falling within the period of the manipulation) with the legal rate pursuant to articles 1346 and 1248, first and third paragraphs, of the Italian Civil Code.

     

    The appointment of the OTC and the hearing scheduled for 28 February 2024, in addition to being an important step for all the stakeholders involved, leads to some reflections on the consequences and implications of the Supreme Court’s decision.

     

    First of all, it should be noted that the claim made in the proceedings for the invalidity of the contracts linked to the manipulated Euribor values is of a contractual nature. Therefore, the plaintiff does not have to prove that the rates were increased as a result of the manipulation, but only that the prohibited “agreement” took place. This will be easy, as it will be sufficient to produce the decision of the Antitrust Commission (privileged evidence according to the Supreme Court).

     

    Moreover, as regards the question of the statute of limitations and, more precisely, its starting date, the 10-year period – applicable to partial nullity – should run from the last instalment of the loan and, in any event, from 14 November 2016 (the date on which the decision of the Antitrust Commission, which had been secret until then, was published), since no action could be brought before that date.

     

     

    s.dellatti@macchi-gangemi.com
    m.furio@macchi-gangemi.com

     

     

     

    FOREIGN PENSION HOLDERS: POSSIBILITY TO OPT FOR THE SUBSTITUTE TAX REGIME ONLY WITH THE REGISTRATION WITH THE ITALIAN REGISTER OF RESIDENT POPULATION.

     

    With answer to ruling no. 21 of January 29th, 2024, the Italian Tax Authorities recognised the possibility to opt for the special (and favourable) substitute tax regime for foreign pension holders, governed by Article 24-ter of the Income Tax Code, to an individual who is tax resident in the United Kingdom pursuant to the Convention between Italy and the UK.

     

    Legal framework

     

    Article 24-ter, Presidential Decree no. 917 of 1986 (“Income Tax Code”) provides for an optional 7% substitute tax regime for individuals with foreign-source pension income who transfer their tax residence from a foreign cooperative country to one of the qualified municipalities located in the regions of the South of Italy, or a qualified municipality affected by earthquakes.

     

    The option may be exercised by individuals who have not been tax resident in Italy in the previous five fiscal years and is effective for the first nine fiscal years following the one in which the option occurs.

     

    The Italian Tax Authorities in commenting the above with Circular letter no. 21/E of 2020 clarified that, in order to opt for the substitute tax, individuals are required to transfer their tax residence in Italy (as confirmed by answer to ruling no. 616 of September 20th, 2021).

     

    Case at hand

     

    The applicant is a UK resident who:

     

    (i) receives pension amounts from two UK supplementary pension schemes,

    (ii) intends to obtain the tax residence in Italy under the domestic tax rules maintaining his tax residence in the UK pursuant to the Convention between Italy and the UK, in order to exercise the option for the substitute tax under Article 24-ter of the Income Tax Code.

     

    The queries of the applicant are aimed to understand if, in the above-mentioned scenario, the 7% substitute tax is applicable to the supplementary pension payments received and whether, in this respect, it is an obstacle the fact that the tax residence of the applicant remains in the United Kingdom pursuant to Article 4(2) of the Italy/UK Double Taxation Convention.

     

    Official clarifications of the Italian Tax Authorities

     

    First of all, the Italian Tax Authorities replied to the applicant clarifying that the amounts deriving from supplementary pensions schemes qualify for the purposes of the special tax regime provided for by Article 24-ter of the Income Tax Code.

     

    Moreover, even if the applicant is tax resident in the United Kingdom pursuant to Article 4(2) of the Italy/UK Double Taxation Convention, the Italian tax authorities affirmed that this is not an obstacle to opt for the substitute tax regime to the extent that it is sufficient for the applicant to obtain the tax residence in Italy under Art. 2(2) of the Income Tax Code through the mere formal registration with the Italian Register of resident population.

     

    Therefore, in conclusion, the Italian Tax Authorities ruled that – irrespective of the conventional provisions and connected consequences from a tax perspective – there is the possibility for the applicant to opt for the substitute tax regime in Italy relying on the definition of tax residence under the domestic tax rules.

     

     

    a.salvatore@macchi-gangemi.com
    f.dicesare@macchi-gangemi.com
    d.michalopoulos@macchi-gangemi.com

     

     

     

    EMAIL METADATA: NEW REQUIREMENTS FOR EMPLOYERS.

     

    The Italian Data Protection Authority issued a guidance measure last Dec. 21 regarding the storage of e-mail metadata in the employment context, highlighting the need for limited storage and the adoption of specific safeguards by employers.

     

    The guidance measure issued by the Garante highlights the risk arising from the use of cloud-based e-mail management computer programs and services that could collect and store metadata of employee communications by default. This metadata, which includes information such as the day, time, sender, recipient, subject, and size of the e-mail, could reveal details about employees’ personal sphere or opinions.

     

    According to the Guarantor, the employer must ensure an appropriate legal basis for the processing of metadata, subject to the procedural safeguards provided by current legislation. Various actions are then suggested to mitigate the risks arising from sine die processing and storage.

     

    First, it should be checked whether there are option mechanisms to exclude or limit the retention of such metadata. Such options should be made available by the e-mail provider. In the absence or impossibility of limiting the retention period to the timeline specified by the Supervisor (7 days plus 48 hours in exceptional cases), the employer should take other safeguards to protect employees.

     

    Storage in violation beyond the stipulated period is considered as a possible remote control of the worker, and therefore the Guarantor expresses the need to adopt the guarantees provided by the Workers’ Statute: (i) union agreement or (ii) authorization of the labour inspectorate. Also reiterated is the prohibition of making inquiries about the worker’s political, religious or trade union views, as well as facts not relevant to the assessment of the worker’s professional aptitude.

     

    The document provides clear operational guidance to employers and producers of services and applications, urging them to verify that computer programs and services allow them to change default settings to prevent the collection of metadata or limit the retention period of metadata. Alternatively, it is suggested that they comply with the assurance procedures in the industry regulations or cease using such IT programs and services. The obligation to provide specific information to workers before beginning metadata processing is also emphasized, in order to ensure transparency and awareness.

     

    The last resort, where it is not possible to limit retention or reach an agreement under the workers’ statute, according to the Garante is the divestment of the service used.

     

    This is a decidedly restrictive measure, perhaps little considering how such metadata is critical during or after a cyber-attack to reconstruct what happened and, in general, the relevance of such information on a cybersecurity perspective.

     

    All that is left for employers to do is to assess their mail providers and, if this is not possible, to take steps to initiate the necessary procedures under the Workers’ Statute. From a Data Protection point of view, it will certainly be necessary to update employee disclosures and to proceed with an impact assessment (DPIA) and probably a legitimate interest assessment (LIA).

     

     

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