• LATEST NEWS & INSIGHTS 8 July 2022

    Posted on: 08/07/2022


    THE IDENTIFICATION OF SUITABLE AREAS FOR THE INSTALLATION OF ONSHORE AND OFFSHORE RENEWABLE PLANTS: WHAT CHALLENGES WILL WE HAVE TO FACE?

     

    With the aim of facilitating the integration and diffusion of renewable energy plants, Legislative Decree No. 199/2021 overturned the territorial planning perspective for hosting renewable energy plants.

     

    Contrary to the Guidelines adopted with the Ministerial Decree of 10th September 2010, Legislative Decree no. 199/2021 (Articles 20 et seq.) provides for the suitable identification of areas for both onshore and offshore renewable plants.

     

    At the current stage, we can therefore consider three distinct territorial planning categories: 1) suitable areas, where the installation of renewable plants is facilitated 2) areas not included in the suitable areas (with the ordinary permitting procedures) and 3) areas that are not suitable under the Ministerial Decree of 10th September 2010.

     

    What are the suitable areas under the current legislation? How will they actually be identified? And most importantly, how much longer will we have to wait for totally effective territorial planning?

     

    Legislative Decree no. 199/2021 provides for a different discipline depending on whether the renewable source plant is installed ‘onshore’ (Art. 20) or ‘offshore’ (Art. 23).

     

    For onshore plants, Article 20 of Legislative Decree no. 199/2021 establishes that suitable areas are to be identified as follows.

     

    1) By means of implementing decrees of the Ministry of Ecological Transition in agreement with the Ministry of Culture and the Ministry of Agriculture, Food and Forestry (Art. 20 paragraphs 1 to 7).

     

    Such Ministerial Decrees will first have to establish the criteria for the identification of areas suitable to host wind and photovoltaic plants, and of surfaces, disused industrial areas, compromised, abundant and marginal areas suitable for the installation of renewable source plants, leaving the Regions to concretely identify these areas on the basis of the principles and criteria established by them.

     

    For the implementation rules, however, there is still some time to wait: in the next few days, it is expected that the Ministry of Ecological Transition will send the Ministry of Culture and the Ministry of Agricultural Policies the draft decree that will establish the criteria for the identification of suitable areas, as provided for in Article 20 of Legislative Decree 199/2021.

     

    Subsequently, in line with national principles and criteria, the Regions will have to take into account:

     

    – the ongoing need to reconcile the protection of the landscape, cultural, agricultural, forestry and environmental heritage with the need to achieve the goals of total installed capacity at least equal to that identified by the National Integrated Energy and Climate Plan, in order to pursue the decarbonization targets;

    – the characteristics and the availability of renewable resources, grid infrastructure and their potential development, as well as electricity demand and its dislocation.

     

    2) The so-called “ope legis” suitable areas, identified as such by the legislator (Art. 20, paragraph 8).

     

    Following the recent amendments introduced by Legislative Decrees 17/2022 (the so-called “Energy Decree”) and 50/2022 (the so-called “Aid Decree”) to Article 20 paragraph 8 of Legislative Decree no. 199/2021, the legislator has provided that, the “ope legis” suitable areas are the following:

     

    – Sites where plants of the same source are already installed and where non-substantial modifications will be implemented.

    – Sites subject to remediation quarries and mines that have ceased, were not recovered or have been abandoned, or are in an environmentally degraded condition.

    – Areas at the disposal of the Ferrovie dello Stato Group (Italian National railways) and railway infrastructure management as well as concessionary companies.

    – For photovoltaic systems, even with ground-based modules, in the absence of landscape restrictions: agricultural areas within 300 meters from industrial, artisanal, and commercial zones, Sites of National Interest, quarries and mines, or from industrial plants, in the absence of cultural heritage; areas located inside industrial plants and establishments and areas classified as agricultural within a perimeter within 300 meters of the same plant or establishment; areas within 150 meters of the highways.

    – Areas on which there is no cultural and landscape heritage, and which do not fall within a 7 km range from cultural heritage or estates and areas of significant public interest.

     

    In the case of offshore plants, Article 23 of Legislative Decree no. 199/2021 provides for the identification of suitable areas through the preparation of a Maritime Space Management Plan for energy production (the deadline for its adoption was planned for June 2022).

     

    While waiting for the adoption of the aforementioned Plan, Article 13 paragraph 2 of Decree-Law no. 17/2022 established that the following are considered suitable:

     

    – disused oil platforms and the area that is two nautical miles away from each platform;

    – ports, for wind farms up to 100 MW of installed power, subject to a possible variant of the Port Master Plan, where necessary, to be adopted within 6 months from the submission of the request.

     

    Recently, the European Union started an infringement procedure against Italy for the delay in sending its Maritime Area Plan for offshore wind farms.

     

    Therefore, on 2nd February 2022, the Ministry of Infrastructure and Sustainable Mobility submitted the preliminary reports for the Tyrrhenian, Adriatic and Ionian Seas to the Ministry of Ecological Transition.

     

    In mid-June, the Ministry of Ecological Transition issued its scoping opinions pointing out that the areas dedicated for energy use, in particular offshore wind power, were still very limited and, as a result, called for a higher increase in the production of this resource, also due to the fact that this source, unlike other renewable sources, does not have a significant impact on the landscape perceived from the coast.

     

    Awaiting the above-mentioned plans to be first implemented by the Ministry of Infrastructure and Sustainable Mobility, and then submitted again to the Ministry of Ecological Transition in order to obtain the Strategic Environmental Assessment (SEA), even for offshore RES plants, the coming months will be decisive in order to have a more delineated planning framework for suitable areas.

     

    It is certain that the territorial planning instrument envisaged by Legislative Decree no. 199/2021, both for onshore and offshore plants, can only be truly effective if it is promptly implemented. An excessive delay in issuing the implementing rules would risk thwarting the energy transition, increasing regulatory uncertainty, and discouraging the investments needed to pursue the decarbonization targets that have been set.

     

     

    e.casciani@macchi-gangemi.com

     

     

     

    COMMUNICATION OF CROSS-BORDER TRANSACTIONS: NEW REGIME FROM JULY 1, 2022.

     

    From July 1, 2022, the data relating to cross-border transactions must be transmitted to the Italian Tax Authority via the national e-invoicing platform, Sistema di Interscambio (SDI).

     

    Article 1, paragraph 3-bis of Legislative Decree No. 127/2015, as amended by Decree-Law No. 146/2021, provides that, starting with transactions carried out as from July 1, 2022, VAT taxable persons resident or established in the territory of the State are required to transmit electronically the data relating to transactions involving the purchases of goods and supply of services made or received by non-resident persons using the SdI (Sistema di Interscambio). The same technical methods currently provided for electronic invoicing must be utilized.

     

    Purchases of goods and services out of the scope of VAT for lack of territoriality are excluded from such reporting obligation, if the respective amount does not exceed Euro 5,000 (as recently established by article 12 of law decree no. 73/2022, the so-called ‘Tax Simplification Decree’).

     

    According to the Italian Revenue Agency Regulation no. 293384/2021, the reporting obligation will remain optional for those transactions documented by a customs bill or a fiscal receipt.

     

    Different deadlines applies to the transmission of the following data:

     

    – the transmission of data relating to transactions supplied to persons not established in the territory of the State, will be carried out within the deadlines relating to issuing invoices or documents certifying the receipts (i.e., within 12 days from the time when the purchase or service is made or within the different deadline established by specific provisions);

     

    – the electronic transmission of data relating to transactions received from persons not established in the territory of the State will be carried out by the 15th day of the month that follows the receipt of the document that certifies the transaction or its execution.

     

     

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

     

     

     

    WITHDRAWAL OF THE SHAREHOLDER OF A JOINT-STOCK COMPANY: MUST THE AMENDMENT TO THE BY-LAWS BE “SUBSTANTIAL”?

     

    Disputes concerning the withdrawal of a shareholder often require a difficult balancing act: between the minority shareholder’s interest in getting rid of a shareholding that has become undesirable – on the one hand – and the majority shareholder’s interest in avoiding payment (which may also be very onerous) for the liquidation of the shares – on the other.

     

    In such a scenario, it is the legislator that has expressly provided for the cases in which a shareholder may withdraw, some of which are mandatory (Article 2437(1) of the Civil Code), and others which may be derogated from the by-laws (Article 2437(2) of the Civil Code), to which are added the cases set forth in Article 2497-quater of the Civil Code on the subject of management and coordination.

     

    Of course, the law provisions of the cases justifying the right of withdrawal, are not sufficient, per se, to avoid disputes as to the legitimacy of its exercise and the consequent claim to the liquidation of the shareholding. This is the case, in particular, submitted to the Supreme Court and decided in a very recent judgment (Court of Cassation 27.06.2022 no. 20546). The joint-stock company (s.p.a.) Alfa was owned by Beta, with 52.13% of the share capital, and by Gamma with 47.87%. The by-laws contained a pre-emption clause, which was later amended to exclude this restriction in the event of a transfer to another company in the same group. On the basis of this amendment, Beta sold its controlling stake to another company of the same group.

     

    Subsequently, Gamma – the minority shareholder – exercised its withdrawal by invoking:

     

    Article 2437, paragraph 2, letter b) of the Italian Civil Code, which provides for withdrawal in the event of the introduction or removal of restrictions on the circulation of shares, and

    Article 2497-quater, paragraph 1, letter c) of the Italian Civil Code, which provides for withdrawal in the event of the commencement and termination of management and coordination activities, if this results in an alteration of the risk conditions of the investment (and a public purchase offer is not promoted).

     

    This gave rise to a dispute concerning both the legitimacy of the withdrawal and the determination of the amount to be liquidated. First the Court of first instance of Florence and then the Court of Appeal of Florence ruled out the existence of the prerequisite under Article 2347, paragraph 2, lett. b) of the Italian Civil Code, stating that the amendment to the by-laws would not have resulted in a substantial change to the pre-emption clause: in fact, a transfer to another company of the same group would not have resulted in a change of the company’s control centre and, therefore, the exercise of withdrawal would not have been legitimate.

     

    The Court of first instance had, on the other hand, acknowledged the legitimacy of the withdrawal on the basis of Art. 2497-quater, paragraph 1, lett. c) of the Italian Civil Code and established the amount of the liquidation, whereas the Court of Appeal reformed the judgement, completely excluding the right of withdrawal.

     

    The Supreme Court, however, overruled this decision based on three considerations of a textual and systematic nature:

     

    1. Article 2347, paragraph 2 letter b) of the Italian Civil Code, where it admits withdrawal in the event of the introduction or removal of restrictions on the circulation of shares, does not provide for any further requirement and, in particular, does not require that the change in the restriction be of substantial relevance;

     

    2. on the contrary, in another hypothesis envisaged by the same article (Article 2347, paragraph 1 lett. a) of the Italian Civil Code), withdrawal is allowed in the event of a change in the corporate purpose, but only when it allows a significant change in the company’s activity: this makes it clear that when the legislator has deemed it necessary for an amendment to be substantial, it has expressly provided for it. On the contrary, if no provision was made by the legislator, the Court cannot enter into an assessment of the merits of the amendment;

     

    3. finally, Article 2355-bis, para. 4 of the Italian Civil Code provides that limitations on the transfer of shares must be apparent from the share certificate: here, too, the rule refers to any type of limitation, without any specific materiality requirement. If this applies to annotations, it must apply a fortiori to the exercise of withdrawal.

     

    The Supreme Court’s conclusions appear logical and agreeable. However, one consideration remains: the resolution that amended the pre-emption clause was dated December 2012; the withdrawal was exercised at the beginning of February 2013; almost ten years later, the Court of Cassation has definitively clarified the legitimacy of the withdrawal (overturning the outcome of the judgement for the second time). But it referred the matter back to the Court of Appeal of Florence for the determination of the amount to be liquidated with the consequent – further – protraction of the dispute.

     

     

    a.gangemi@macchi-gangemi.com

     

     

     

    DISTRIBUTED LEDGER TECHNOLOGY: THE NEW REGULATION (EU) 2022/858.

     

    A few days ago, Regulation (EU) 2022/858 came into force, regulating a pilot regime for market infrastructures based on the distributed ledger technology (DLT). The Regulation establishes and regulates a temporary pilot scheme to enable market infrastructures operating with DLT technology to trade and settle crypto-assets transactions covered by financial services legislation.

     

    DLTs are a computer technology that enables the operation and use of ‘distributed ledgers’, that is a database of transactions (but this could be any information) which, instead of being stored at a central hub, is distributed over a network of computers that allow information to be stored and accessible, manageable and verifiable, in a shared manner by entities operating via the Internet. The most common type of DLT is the ‘blockchain‘, so called because transactions are grouped into chronologically linked blocks that form a chain. This chain forms the complete register of all transactions included in the database and is protected by mathematical algorithms that aim to guarantee information integrity and data security. This technology is susceptible to almost infinite modalities and applications in every sphere of human life where there is the need to guarantee the unchangeability and reliability of data or information, not only in the financial sector, without the traditional interference of a central institution that keeps and guards the information.

     

    The DLT Regulation is part of the EU Commission’s broader ‘digital finance package’, which includes, inter alia, two further parts of legislation (the proposed MiCA regulation on market in crypto-assets and the proposed DORA regulation on digital operational resilience for the financial sector), as well as the necessary amendment of existing directives.

     

    This Regulation establishes a temporary regime for market infrastructures that operate through DLT in order to test such technologies and allow the development of crypto-assets that fall under the definition of financial instruments, while ensuring a high level of investor protection, market integrity, financial stability and transparency. This scheme will be subject to a ‘review’ in 2026, following a report on the functioning and risks of the pilot scheme by the Commission, which, on the basis of a cost-benefit analysis, will determine whether the pilot scheme can be extended (for a maximum period of three years), and/or extended to other types of financial instruments, amended, made permanent or abolished.

     

    Among the most important innovations, the Regulation introduces the notion of a “DLT financial instrument” understood as financial instruments which are issued, transferred and stored on a distributed ledger and new, dedicated market infrastructures in which such instruments are traded. Moreover, only shares, bonds and fund shares are admitted to trading or may be registered in a DLT market infrastructure within the limits of thresholds identified both in relation to the issuer of the securities and the aggregate market value limits, in order to avoid financial stability risks.

     

    As new technologies allow for real-time trading and settlement of transactions, the Regulation provides for an infrastructure combining the two activities alongside the traditional structures. The “DLT market infrastructure” includes, in fact, DLT multilateral trading facilities (DLT MTFs), DLT securities settlement systems (DLT SSs) and also DLT trading and settlement systems (DLT TSSs) that combine the traditionally separate activities of trading and post-trading into a single entity.

     

    Access to the pilot scheme is not limited only to existing operators but is open to new operators under the authorization regime of the Regulation. To avoid and manage possible risks associated with the use of new technologies, operators will be subject to additional requirements compared to traditional players.

     

    Among the most important innovations is the possibility, upon request of a DLT MTF operator, to obtain an exemption from the obligation of intermediation provided by MiFID II. Existing multilateral trading facilities are only authorized to admit investment firms, credit institutions and other entities, as members or participants, that have a sufficient level of trading capacity and expertise, and maintain adequate organizational arrangements and resources, so that non-professional investors do not have direct access to the markets. Instead, crypto exchange platforms offer disintermediated and direct access to non-professional investors. Accordingly, a temporary exemption from the obligation of intermediation has been introduced for operators of a DLT MTF, provided that adequate measures are in place to protect the investor, such non-professional investors meet certain conditions, and that the operator complies with any additional investor protection measures required by the competent authority. A similar exemption applies to central securities depositories (CSDs) operating a securities settlement system (DLT SS).

     

    The Regulation shall apply from 23 March 2023.

     

     

    m.divincenzo@macchi-gangemi.com

     

     

     

    DAMAGES CLAIMS FOR FAULTY PRODUCTS: SOME OF THE MISTAKES OFTEN MADE BY THE DAMAGED PARTY CONCERNING THE BURDEN OF PROOF.

     

    Quite often, the injury party is not complying with the rules governing the burden of proof in actions to seek compensation for a defective product. Here are the common mistakes.

     

    When a vehicle catches fire, regardless of whether it is in motion or parked, the producer of the vehicle is often sued. Whenever the damaged party is a consumer, the provisions contained in the Legislative Decree n. 206 of September the 6th 2005 shall apply; conversely, if the damaged party is a business operator (b2b transaction), the rules in the Italian Civil Code will apply. Specifically, the rules on extra-contractual liability (art. 2043 c.c.).

     

    Regardless of which set of rules is applicable, the burden of proof always lies on the damaged party: the latter will have to prove the existence of the defect, the damage suffered, as well as the causal link between the first and the second element (see art. 120 of the Consumers protection Code). Nevertheless, it is important to remember that while liability for faulty products is presumed, it is not a case of strict liability: it is not necessary to prove that the producer incurred in any kind of negligence; nonetheless, it is demanded to prove the actual existence of the defect. Therefore, the damaged party will have to bring evidence of the defect and its causal link with the damaged caused, it is not sufficient to prove the link between damage and the product itself. On the other hand, the producer has the right to prove otherwise; namely to bring evidence of the fact that the defect did not exist at the moment in which the product was commercialized (see Court of Cassation, section III, April the 7th 2022, n. 11317 in Giustizia Civile Massimario 2022).

     

    The damaged party often resorts to the report of the firemen to prove the defect, who sometimes provide a technical evaluation of the facts that they witnessed. However, sometimes they even include technical explanations (sometimes quite bizarre ones) on the alleged causes of the fire. Thus, the firemen’s report represents the main evidence on which the damaged party relies to prove the producer’s liability.

     

    Nonetheless, the Italian Supreme Court stated that the firemen’s report is highly reliable with respect to the facts that happened under their direct watch and regarding their operations; however, the report does not have such reliability when assessing the causes of the fire (Court of Cassation, section II of November the 17th 2017, n. 27314 in Diritto & Giustizia 2017; similarly: Nola Court of First Instance, section I of January the 20th 2021, n. 125; Court of Cassation, section III of May the 5th 2021, n. 12225 in Responsabilità Civile e Previdenza, 20121, 6, 1095).

     

    As far as the damage is concerned, the vehicle often is destroyed by the fire or in any case becomes useless and must be scrapped. Therefore, the damaged party will probably request payment of the value of the vehicle at the time of the burning.

     

    On the contrary, when the consumer only invokes the provisions of the Consumer Code, the producer may successfully raise exceptions under art. 123 of the same Code, which limits the compensation to damages such as death and physical injuries and damages such as destruction or deterioration of goods other than the faulty product.

     

    If the vehicle is not destroyed and can be repaired, the damaged party often seeks compensation for the repairment costs and the time during which the vehicle has been useless. In such case the damaged party may also request damages for loss of profit (as long as the product is used for business purposes); the damages that may also be lamented can be the costs for renting a vehicle in substitution.

     

    On this specific topic as well, the Supreme Court has issued some clarifications: the damages for the lack of usability of the product are not to be deemed as automatically existing, they must be proven. In fact, such damage is not proven by the mere uselessness of the vehicle, it is instead necessary to provide evidence of additional costs deriving from the rental of a replacement vehicle or the loss of profits caused by the impossibility to use it, provided that the vehicle was a necessary tool to generate income (see Court of Cassation, section VI of February the 28th 2020, n. 5447 in Giustizia Civile Massimario 2020; similarly: Court of Cassation, section III of April the 4th 2019, n. 9348 in Diritto e Giustizia 2019, 5, April).

     

     

    e.storari@macchi-gangemi.com
    g.briggi@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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