• LATEST NEWS & INSIGHTS 22 OCTOBER 2021

    Posted on: 22/10/2021


    The shortage of raw materials: is it a force majeure? How long will it last?

     

    There is no doubt that, for some time now, in several industrial sectors, manufacturers and importers of high-tech goods have faced a shortage of raw materials, with inevitable delays in manufacturing processes and significant impact on the delivery of the finished product. Often, the final customer won’t listen to reason because they were relying on the delivery of the goods, above all for work purposes. In sale and purchase agreements, such a delay may trigger the failure to perform clause of a contract, with predictable liability issues to follow.

     

    In this context, it is reasonable to suppose that a temporary failure of the performance of the agreement will occur; as set out in article 1256 par. 2 of the ICC “… if the performance is temporarily impossible, the debtor is not liable for as long as the temporary impossibility lasts …”.

     

    According to the case-law of the Courts of first instance “… the impossible performance set out by article 1256 of the Italian Civil Code cannot be identified with a mere difficulty in the performance or, alternatively, with a more expensive performance, but has to be identified with an unpredictable event which may cause the impossibility to perform the contract for reasons not attributable to the debtor …” (see Court of Milan Section VII, 21.06.20216).

     

    The inability to fulfill must therefore be objective, occurring at the conclusion of the contract and not attributable to the debtor. As provided for by article 1218 of the ICC, the party who fails to precisely fulfill the performance has to compensate the other party for any loss suffered; in particular, it is necessary to prove “…that the failure of the performance (or its delay) has been caused by the impossibility to perform the contract for unattributable reasons …” (see article 1218 above mentioned).

     

    Usually in such cases the event is named an unforeseeable circumstance, that is an unexpected event out of control, or force majeure, that is an event caused by nature (i.e. earthquake, flooding) or ordered by an Authority (i.e. factum principis), circumstances that prevent the debtor – and, in the abstract, may prevent anyone – to fulfill the performance. These events have to be considered absolute and objective (see paper D’Amico, La responsabilità contrattuale: attualità del pensiero di Giuseppe Osti, published in Riv. Dir. Civ., 2019, 1 e ss.).

     

    If the raw materials represent a momentary element that, although temporary, could influence the liability of the debtor limiting his responsibility for the lack of supply, it is important to understand how long this condition could reasonably continue.

     

    The above-mentioned article 1256, par. 2 ICC sets two rules which make it possible not to prolong such a state of uncertainty indefinitely; the temporarily impossible obligation ceases to exist when:

    – Time has elapsed and, because of the type or nature of the obligation, the debtor is no longer obliged to fulfill the supply.

    – The creditor no longer has interest to ask for the fulfilment of the agreement.

     

    According to most of the legal theory, if one of the two aforementioned circumstances occurs, the obligation will terminate (see paper Di Prisco, I modi di estinzione delle obbligazioni diversi dall’adempimento, published in Tratt. Rescigno, 9, Turin, 1999, 447), it being understood that, in order to apply such a mechanism, it is necessary to balance the opposing interests of the parties. On the contrary, referring to a long-standing decision of the Italian Supreme Court, not yet over-ruled and still mentioned in serval commentaries, this kind of balancing needs to consider the interests of the creditor exclusively (see Italian Supreme Court, decision n° 794 dated 02.06.1979).

     

    It is well understood that the burden of proof of the impossibility to perform the sale or purchase agreement – also in order to avoid any liability – rests on the debtor (see Italian Supreme Court, Section II, decision n° 6594 dated 30.04.2012).

     

     

    e.storari@macchi-gangemi.com
    f.montanari@macchi-gangemi.com

     

     

     

    Auditors’ liability for activities occurring prior to their taking office.

     

    The liability of the members of corporate bodies is – as is normal – the subject of an extensive and articulated dispute that is often characterized by complex judgments and very technical contents. With regard to auditors, in particular, jurisprudence has examined their profiles in relation to the wide range of tasks attributed to them. And the technical level increases when examining the liability of auditors of banking institutions.

     

    In a very recent ruling, the Supreme Court (Court of Cassation no. 28067 of 14.10.2021) focused on two aspects in particular:

     

    1. the supervisory obligations of auditors, also regarding activities carried out prior to their taking office, and

     

    2. the possibility of sharing the liability with the external auditing company.

     

    The case before the Supreme Court concerned the objection to a penalty provision issued by the Bank of Italy against the Chairman of the Board of Statutory Auditors of a bank: the alleged offences consisted in the lack of control and the failure to detect abnormal credit positions and forecast losses.

     

    In a nutshell, the Board of Statutory Auditors was accused of failing to intervene in a timely and opportune manner regarding the deterioration of the bank’s receivables.

     

    The Court of Appeal of Rome had upheld the objection only in relation to the deterioration of the credits granted prior to his taking office, rejecting it for the rest; and had consequently confirmed the penalty imposed, however reducing the amount.

     

    With regard to the first profile mentioned above, the Supreme Court Judges, consistent with their orientation (see Cass. 12.07.2019 no. 18770) have instead stated that “in the presence of unlawful managerial conduct carried out by the directors, it is not sufficient to acquit the company auditors from liability given the alleged circumstance of having taken office after some of the damaging facts have taken place, if the auditors have maintained a passive behavior, did not adequately supervise the directors’ behavior, even though they were required to make a diligent effort to verify the situation and rectify it, so as the statutory auditors’ powers could come into force, in accordance with the duties of office, thus enabling the illegal conduct to be discovered and remedied, preventing further damage“.

     

    As regards the second profile, the ruling under review, referring to a less recent decision (Cass. 29.03.2016 no. 6037), stated that “the complex organizational structure of an investment company cannot lead to the exclusion or even simply a weakening of the power and duty of control attributable to each of the members of the Board of Auditors, which, in case of confirmed deficits in the company procedures compiled for the correct and proper management of the company, are punishable in the case of omission concerning the duties of auditors, on the one hand, in terms of supervision – not only vis-à-vis safeguarding the shareholders’ interests against abuse of management by the directors, but also verifying the adequacy of the methodologies aimed at the internal control of the investment company, according to procedural parameters defined by the regulatory legislation to guarantee investors – and, on the other hand, the legal obligation of immediate reporting to Bank of Italy and Consob“.

     

    The principles of law set out above, however, in the case at stake may only have a theoretical value. The Court, in fact, in addition to the matters studied, censured the Judges of second instance because they had failed to consider an expert’s report presented by the Chairman of the Board of Statutory Auditors and carried out by an important consulting firm, which had highlighted various elements capable of excluding the violations contested.

     

    It will therefore be up to the Court of Appeal of Rome, as the revising court, to re-examine the profiles of liability also with reference to the period prior to taking office, but examining – on the merits – all the aspects highlighted by the expert’s report, whose observations were not taken into due consideration in the previous degrees.

     

     

    a.gangemi@macchi-gangemi.com

     

     

     

    Decreto Semplificazioni “bis” (Simplification Decree “bis”): the 10 strategic public works and the special procedure.

     

    Article 44 of Law Decree no. 77 (so-called Simplification Decree 2021) concerning the “ Governance of the National Recovery and Resilience Plan and initial measures to strengthen administrative structures and speed up and streamline procedures “, converted into Law no. 108 dated July 29, 2021 (published in the Official Gazette of the Italian Republic on July 30, 2021 and which became effective the following day on July 31, 2021), constitutes the central provision for the approval and implementation of 10 public infrastructure works deemed to be strategic for our Country’s development and growth. For an in-depth analysis of the other rules relating to the general issues of public contracts and those concerning the interventions financed by the National Recovery and Resilience Plan (the so-called PNRR) and the Supplementary Fund (PNC), please refer to the previous newsletters of 2 August 2021 and 24 September 2021.

     

    The works are listed in Annex 4 of the Decree under review, and includes infrastructures relating to six railways, two water works and two port building sites. More specifically, they are:

     

    1) Construction of the Palermo-Catania-Messina railway route; 2) Improvement of the Verona-Brenner railway line; 3) Construction of the Salerno-Reggio Calabria railway line; 4) Construction of the Battipaglia-Potenza-Taranto railway line; 5) Construction of the Rome-Pescara railway line; 6) Improvement of the Orte-Falconara railway line; 7) Construction of the diversion structure of the dam of Campolattaro (Campania); 8) Securing and upgrading of the Peschiera water system (Lazio); 9) Upgrading of the infrastructure in the Port of Trieste (Adriagateway project); 10) Construction of the Genoa outer breakwater.

     

    Article 44 of the Decree sets forth a very streamlined ad hoc procedure for these works which should guarantee (at least that is the intention) their implementation in a short timeframe, so much so that it is hoped that the framework outlined by the new legislation may in future become an example also for the implementation of so-called minor public works.

     

    Article 44 provides that the contracting authority shall transmit the technical and economic feasibility project to the Consiglio Superiore dei Lavori Pubblici (Higher Council responsible for overseeing public works) for the decision to be issued. This decision is issued by the Special Council (a kind of task force of experts set up within the Consiglio Superiore dei Lavori Pubblici) whose functions are established in the subsequent article 45: until 31 December 2026, the Committee will be responsible for issuing opinions in relation to the works indicated in Annex IV of the decree under review.

     

    In this perspective, therefore, the Committee verifies:

     

    (i) within 15 days, the existence of clear deficiencies, including those relating to environmental, landscape and cultural aspects, that would prevent the decision from being issued. In this case the project shall be sent back to the contracting authority with an indication of any integrations or alterations necessary for a favourable decision to be issued;

     

    (ii) the Contracting Authority shall implement the changes and integrations requested by the Special Council within a mandatory period of 15 days from the date the project would have been returned;

     

    (iii) the time limit for the decision to be issued is set at 30 days from the receipt of the technical and economic feasibility project or, if amendments are required, 20 days from the receipt of the amended project;

     

    (iv) after such period expires, the opinion shall be deemed to be favourable.

     

    Paragraphs 2 and 3 of art. 44 of Decree no. 77/2021 focus instead on the procedure relating to the prior verification of archaeological interest and the environmental impact assessment (EIA), the results of which must then be acquired during the services conference. Thus:

     

    (v) for prior verification of archaeological interest, the technical and economic feasibility project is transmitted by the contracting authority to the competent Superintendency 15 days from the transmission of the technical and economic feasibility project to the Consiglio superiore dei lavori pubblici, or at the same time as retransmission to the aforementioned Council in cases where alterations or integrations would have been required;

     

    (vi) for the purposes of the EIA, the technical and economic feasibility project is submitted by the contracting authority to the competent authority within the terms set out above, together with the documentation referred to in Article 22, paragraph 1, of Legislative Decree no. 152/2006 (so-called environmental impact study).

     

    Within the same time deadlines set out above, the contracting authority convenes the services conference for the project’s approval. The services conference is held in a simplified form throughout which any prescriptions and directives adopted by the Superior Council of Public Works are acquired and evaluated, as well as the results of the public debate and the observations concerning the prior verification of archaeological interest and the environmental impact assessment. The final decision of the Conference approves the project and considers the opinions, clearances and authorisations necessary for the location of the work, the urban and landscape conformity of the project, the resolution of interferences and the related mitigating and compensatory works.

     

    The final decision of the Conference completes the agreement between the State and the Region on the location of the work for all town-planning and building purposes and has the effect of a variance with the consequent obligation for the local authorities to implement the necessary measures to safeguard the areas concerned and the relevant blocked time-slots and the impossibility of authorising building work incompatible with the location of the work. Moreover, the urban planning variant determines the subjugation of the area to a preordained expropriation constraint. The final decision also includes the EIA decision and the authorisations issued for the construction and operation of the project, which are explicitly mentioned.

     

    If the Services Conference approves the project based on the prevailing positions, or if qualified dissent is expressed, the matter is submitted to the Special Council of the Consiglio superiore dei lavori pubblici for examination and defined according to the procedures provided under art. 44, paragraph 6, with the possible involvement of the Council of Ministers. It is clear that the procedure described above places great importance on the Special Council of the Consiglio superiore dei lavori pubblici, which operates in parallel with the Services Conference. Any possible disagreement that could not be resolved during the procedure is finally entrusted to the decision of the Council of Ministers.

     

    The Committee’s verification of the final project and the executive project also ascertains compliance with the prescriptions issued during the services conference and the EIA, as well as those issued pursuant to Article 44, paragraph 6, of Law Decree no. 77/2021, and upon the outcome of the same the contracting authority proceeds directly to the approval of the final project or the executive project directly.

     

    Finally, the contracting authority shall arrange for the procedure of adjudication no later than ninety days from the date of the reasoned decision made by the Special Council or, if no agreement is reached, from the date the Council of Ministers’ decision is published in the Official Gazette.

     

     

    n.digiandomenico@macchi-gangemi.com

     

     

     

    The Senate approves the opinion on the Electricity Market Decree: what will be the main new aspects?

     

    In some subjects, the RES Decree could overlap with the Electricity Market Decree.

     

    The opinion of the parliamentary committees on the scheme of legislative decree implementing Directive (EU) 2019/944 (concerning common rules for the internal market in electricity), which has been approved on October 20 by the Senate and now sent back to the Chamber of Deputies, is in the final stretch. At the moment, however, the course for the opinion on the so-called RES Decree has not yet been concluded, which necessarily must be developed at the same pace. In fact, part of the discipline of the two decrees, in the subjects of energy communities, collective self-consumption and storage systems, overlaps and a careful coordination must be maintained.

     

    Among other matters, the Decree introduces the discipline for active end customers, who can enter the market individually, in an aggregate manner or through energy communities (art. 14), defining the latter. It is provided that the energy community of citizens is a subject of private law that can take any legal form, provided that it cannot pursue profit (as defined in art. 3). On this point, the opinion suggests that it would be advisable to include among the shareholders or members also small and medium-sized companies and cooperatives, as well as to overcome the total prohibition of pursuing financial profit, unless this is the main purpose.

     

    Moreover, the definition is consistent with the one of the renewable energy communities referred to in art. 31 of the RES Decree; given this similar discipline, the Study Service of the Chamber had suggested to verify the need to regulate the energy communities in the Decree under review.

     

    The scheme also regulates the configurations of self-consumption, introducing a series of provisions aimed at simplifying the configurations currently possible for Simple Production and Consumption Systems (CPCS) (art. 16), systems that must insist on cadastral parcels placed in the availability of one or more of the subjects that are part of these systems. At the same time, the RES decree provides in art. 30 the discipline of self-consumption of renewable energy and necessarily the two provisions should be aligned, with the application of the definition of CPCS for the self-consumption of RES. In the opinion it has been suggested to provide that renewable source plants can also insist on neighboring land parcels.

     

    Article 17 defines closed distribution systems (CDS) as systems for the distribution of electricity within industrial, commercial or shared service sites within a limited area. It is aimed at overcoming the limitations imposed by the previous regulatory framework. The provisions detail the criteria and requirements for the establishment of new CDSs, which are considered “public distribution networks with the obligation to connect third parties”. As such, the CDS operators are subject to the stipulation of a sub-concession with the operator holding the concession of the network to which the CDS is connected, and are required to comply with the obligations and conditions to which the concessionaire is subject. In the opinion it was suggested to clarify that the classification only applies to newly built systems.

     

    Measures are then provided for to promote and support the development of new storage systems (articles 18-19) through competitive procedures, providing for an exception to the general prohibition for the transmission and distribution operators in question to manage electricity storage systems.

     

    The other sections of the draft decree provide, in the first part (articles 5-13), for the regulation of end user rights, such as contractual rights, billing information, the provision of “dynamic” pricing in the supply of electricity with the use of smart meters, the strengthening of the rights of the most vulnerable categories of consumers (so-called “fragile” customers) and a gradual overcoming of the mechanism of the single national price for electricity.

     

    In the last part (articles 20-27), it redesigns the obligations of the energy market players: the regulation of public service obligations to be borne by the operators of electricity generation plants; safeguard measures in the event of a crisis in the electricity system; the functions and responsibilities of the transmission system operator; the role and obligations of the distribution system operators; the functions and duties of the Regulatory Authority in relation to the new obligations provided for by EU Directive no. 2019/944, EU Regulation no. 2019/943.

     

    The aim of the regulations is to have a more dynamic market that should encourage investment, activated by the possibility of setting up new configurations, implementation of new services and the emergence of new professional figures.

     

     

    f.bogoni@macchi-gangemi.com
    m.rigo@macchi-gangemi.com

     

     

     

    Taxation of the capital gain on shares in case of payments deriving from price adjustments occurred in a tax period different from that of the sale.

     

    With the reply to the ruling request no. 686 of 8 October 2021, the Revenue Agency ruled on the determination of the capital gain from the sale of shares in case of payments deriving from price adjustments.

     

    In 2015, the applicant sold shares to his son at a certain price, however providing that if the son had realized a capital gain greater than a certain amount at the time of the sale of the company to third parties, the father would have been entitled to a price integration.

     

    The son sold the shares to a third party in 2019 and in 2020 he became entitled to an integration of the sale price towards the third buyer.

     

    This price integration, however, was due to the father under the clause of the contract for the transfer of the father to the son. Therefore, the son transferred his credit towards the third party purchaser to the father.

     

    For capital gains realized starting from January 1, 2019 the substitute tax of 26% is applied also to the capital gains realized through the sale of shareholdings above 20%.

     

    Previously, however, the capital gains realized through the sale of these relevant shareholdings were partially taxed at progressive income tax rate, concurring to the income tax base:

    – for 40% of their amount, if realized until December 31, 2008;

    – for 49.72%, if carried out between January 1, 2009 and December 31, 2017;

    – for 58,14%, if realized from January 1, 2018.

     

    The Revenue Agency’s reply confirms the approach according to which the price integrations do not represent an income independent from the original sale but follow the tax treatment of the latter, notwithstanding the taxation of the income on cash basis.

    In other words, the capital gains are deemed to be realized when the sale of the shares is carried out regardless of the time when the consideration for the sale is paid.

     

    The moment of realization of the capital gain determines the applicable tax regime, while the moment in which the consideration is paid determines the tax period in which the income is subject to tax.

     

    In the specific case, therefore, the price integration received in 2020 but relating to a sale carried out in 2015 (when the capital gain is realized) is subject to tax in 2020 based on the tax criteria in force in 2015 and therefore concurring to the income tax base of 2020 for 49.72% of the its amount.

     

     

    b.pizzoni@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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