• LATEST NEWS & INSIGHTS 24 SEPTEMBER 2021

    Publié le: 24/09/2021


    Decreto Semplificazioni “bis” (Simplification Decree »bis »): amendments to the Code of Contracts and to the subcontracting institute.

     

    Going through the analysis of the Simplification Decree 2021 concerning the public tenders (not only limited to the ones financed by the PNRR), it is possible to observe how this decree substantially modified some of the legal institutions regulated by the Code of Public Contracts (d.lgs. n. 50/2016).

     

    The newsletter dated August 2, 2021, defined the Decree-Law no. 77/2021 (so-called Simplification Decree 2021) regarding « Governance of the National Recovery and Resilience Plan and initial measures to strengthen administrative structures and speed up and streamline procedures« , which was 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). As highlighted in the previous contribute the group of rules intended for procurement could be divided into three areas: (a) rules applicable to all tenders (b) rules applicable to interventions financed by the National Recovery and Resilience Plan (the so-called PNRR) and the Complementary Fund (PNC); (c) rules applicable for the implementation of 10 works deemed to be a priority and strategic for the country.

     

    With this in mind, concerning the rules applicable to public tenders, the « new » regulations establish that:

     

    i. all the derogations for sub-threshold contracts, already provided for by the first Simplification Decree (Legislative Decree no. 76/2020), are extended until June 30, 2023 and will therefore not expire at the end of the year;

     

    ii. service and supply contracts provide for the increase of the threshold for direct awarding up to €139,000, including engineering and architectural services and design activities;

     

    iii. works’ contracts provide that the number of economic operators to be consulted within the negotiated procedure without a tender notice has been reduced. In particular, the Simplification Decree-bis introduces a new threshold – between 150,000 euros and 1,000,000 euros – at which it is sufficient to consult 5 operators (thus replacing the previous range between 150,000 euros and 350,000 euros) and also provides that, for contracts above 1,000,000 euros and up to the EU threshold of 5.350.000 € according to art. 35 del D.lgs. n. 50/2016, it is sufficient to invite 10 operators instead of the 15 previously provided for.

     

    That said, the institute that has mostly benefited from the Government’s intervention is undoubtedly that of subcontracting, pursuant to art. 105 of Legislative Decree no. 50/2016 (as amended by art. 49 of the Simplification Decree-bis).

     

    And in fact, art. 49 of Legislative Decree no. 77/2021 « Amendments to the regulation of subcontracting« , establishes the process of liberalization already inaugurated with the decisions of the Court of Justice (decisions September 26, 2019-C63/18; November 27, 2019-C402; January 30, 2020, C395/18) that have determined the incompatibility with European Union law of the maximum limits of possible subcontracting.

     

    Even for these reasons, the Decree-Law under review 77/2021 introduces a temporary regime that repeals the one introduced by Decree-Law no. 32/2019 (converted with amendments by Law no. 55/2019) under which it was provided that subcontracting could not exceed the threshold of 40% of the total value of the contract, leaving it up to the contracting stations to choose the exact percentage. Now, however, and only until October 31, 2021, subcontracting will be raised to 50%.

     

    Subsequently, and therefore from November 1, 2021, the liberalization process aimed at removing all general and predetermined quantitative limits to subcontracting shall begin, with the amendment of paragraph 2 of art. 105 of Legislative Decree no. 50/2016.

     

    However, in the tender documents, contracting authorities may indicate – subject to adequate justification in the decision to contract and by referring to the opinion of the competent Prefectures – the services or works to be covered by the contract that shall be executed by the successful bidder regarding i) the specific characteristics of the contract, including those of the super-specialized categories of works (pursuant to article 89, paragraph 11 of the Public Contracts Code); ii) the need to strengthen supervision and control of the activities on the worksite and, more generally, of the workplace and to ensure more protection of the working conditions and the health and safety of workers, taking into account the nature or complexity of the services or works to be carried out; iii) the need to prevent the risk of criminal infiltration, unless the subcontractors are registered in the so-called « white lists » (pursuant to paragraph 52 of art. 1 of Law no. 190 of November 6, 2012), or in the anti-mafia registry (pursuant to art. 30 of Decree-Law no. 189 of October 17, 2016, converted into Law no. 229 of December 15, 2016).

     

    A further important innovation on the subject of subcontracting concerns the repeal, as of November 1, 2021, of paragraph 5 of art. 105 of the Code of Contracts, and there will no longer be the limit of 30% to award the super-specialist works and therefore there will be no prohibition to split it without express objective reasons. In addition, the main contractor and the subcontractor’s joint and several liability towards the contracting authority in relation to the services covered by the subcontract is affirmed, again as of November 1, 2021, through the amendment of paragraph 8, of art. 105 of the Code of Public Contracts.

     

    On its part, the Decree under review introduced a new amendment to paragraph 7 of art. 105 of the Code of Public Contracts, regulating in a more precise manner the submission of the subcontractor’s declaration in terms of absence of reasons for exclusion, possession of the requirements needed for the execution of the subcontract, and the relative verification by the contracting authority, providing that, at the time the subcontracting contract is filed with the contracting station, the contractor must submit the subcontractor’s declaration attesting the absence of grounds for exclusion pursuant to article 80 of the Code of Contracts and possession of the special requirements pursuant to articles 83 (Selection criteria and preliminary assistance) and 84 (Single qualification system for public works executors) of the same Code of Contracts. The contracting authority verifies the declarations by means of the National Database of Public Contracts pursuant to article 81 of the same Code of Contracts.

     

    It is clear that the new regulations introduced by the Simplification Decree-bis (and its conversion law no. 108/2021) are in line with the latest interventions of the Legislator in the field of public contracts, which increasingly sees the public contracts’ regime being shifted from the ordinary and legitimate framework represented by the Code of Public Contracts.

     

    These exceptions, postponements and new rules that appear to keep “going back and forth” inevitably are a problem for those interpreting the law, especially until a law reform on the matter is finally approved through the review of the Code of Public Contracts that has been publicized.

     

     

    n.digiandomenico@macchi-gangemi.com

     

     

    The decree implementing the EU directive on renewables is under examination by Parliament.

     

    The draft decree for the promotion of RES plants includes major innovations regarding authorization procedures, self-consumption, renewable energy communities, grid systems and transport, which are necessary to implement the National Recovery and Resilience Plan (PNRR).

     

    The September activity of the Parliament is also focused on the examination, in advisory role, of the bills of legislative decree for the transposition of EU rules on the electricity market (EU) 2019/944, the promotion of renewable sources (EU) 2018/2001 and the reduction of the impact of plastic waste (EU) 2019/904, approved on August 6 by the Council of Ministers of which informal hearings are scheduled in these days.

     

    For the implementation of EU Directive 2018/2001, the so-called « Red II », the draft decree for the promotion of renewable sources pursues the government’s stated objective of accelerating the transition from traditional fuels to renewable sources, in line with the Integrated National Energy and Climate Plan (PNIEC). Currently, it includes seven titles.

     

    After defining, in Title I (articles 1-3), the aims, definitions and national objectives, in Title II (articles 4-17), the decree regulates the support schemes and promotion tools.

     

    The first tool used to achieve the objectives is therefore the simplification of the procedures – compared to past schemes – starting with the incentives. Article 5 defines the general characteristics of the incentive mechanisms and, with a view to simplification, for the so-called small plants (power less than 1 MW) that have generation costs close to market competitiveness, direct access is proposed, while large plants with power greater than 1 MW and small innovative plants or with high generation costs will operate with auctions and registers.

     

    Title III (articles 18-29) instead considers authorization procedures, codes and technical regulations. The first objective is to accelerate the issuing of authorizations, first of all through the redistribution of competence to the most appropriate administrative level according to the size and type of plant. Article 19 then moves on to provide for the definition of a digital one-stop shop for renewable energies (SUDER), responsible for coordinating and digitalizing all the formalities required for the issue of authorizations and the approval of digital one-stop models. The implementation ministerial decrees will then be necessary to define the competence with respect to the one-stop shop for productive activities (SUAP). Article 20 regulates the identification of surfaces and areas suitable and unsuitable for the installation of renewable source plants, delegating to decrees of the Minister of Ecological Transition in agreement with the Minister of Culture, and the Minister of Agriculture, Food and Forestal Policies, which will have to ensure compliance with the requirements of protection of cultural heritage and landscape.

     

    The scheme then provides in Title IV (articles 30-38) the discipline for self-consumption and renewable energy communities. Article 32 defines the modalities of interaction with the energy system for self-consumers (individual, associated or energy communities), who in any case maintain their rights as final customers.

     

    The same title regulates the network systems and in article 36 provides for the adoption by ARERA of one or more measures to identify the modalities by which the GSE will provide incentives in the electricity sector, with reference to new plants and those already in operation, providing for the creation of an electronic platform.

     

    The scheme then continues with Title V (articles 39-45) which contains the regulation of renewable energy in the transport sector and sustainability criteria for biofuels, bioliquids and mass fuels, also introducing limits on the use of those obtained from food and fodder crops; Title VI (articles 46-47) regarding information, training and guarantees of origin; Title VII (articles 48-50) with the final provisions.

     

    The decree under review and the « Decreto Semplificazioni bis », definitively approved at the beginning of August, closely intersect with the implementation of projects and reforms in the field of RES energy envisaged in the National Recovery and Resilience Plan (PNRR) to succeed in accelerating the spread of renewables in our country. In order to meet the ambitious EU objectives, Italy must annually install plants for at least 7 GW, until 2030, but in recent years, with the current authorization times, the average has been less than 1 giga per year.

     

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

     

     

     

    Cheers over PDO wider protection?

     

    Further to a reference for a preliminary ruling, submitted in the context of a dispute concerning the use of « Champanillo » as a trade name for restaurant services, submitted by the Comité Interprofessionnel du Vin de Champagne, an organization which safeguards the interests of champagne producers, the Court of Justice of the European Union has ruled on the issue of « evocation », an autonomous concept which must be taken as distinct from that of « use » of a given PDO/GI, within the meaning of Article 103(2) of Regulation (EU) No 1308/2013.

     

    The above-mentioned rule expressly provides that: “2. A protected designation of origin and a protected geographical indication, as well as the wine using that protected name in conformity with the product specifications, shall be protected against:…b) any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated, transcripted or transliterated or accompanied by an expression such as « style », « type », « method », « as produced in », « imitation », « flavour », « like » or similar”.

     

    In view of the foregoing provision, and in line with the conclusions delivered by Advocate General Pitruzzella, the conduct in the case at issue, consisting in the promotion by a Spanish company of its tapas bars via the expression « Champanillo », has been deemed by the Court of Justice of the European Union (“CJEU”) as falling within the scope of Article 103(2)(b) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013, establishing a common organization of the markets in agricultural products (hereinafter, the “Regulation”).

     

    On this regard, the CJEU has preliminary reiterated the exclusive applicability, by the referring court, of the European Regulation to the case at issue, in order to subsequently assess in detail the aforementioned provision.

     

    Firstly, it is important to note that the CJEU has dismissed any reference, in the present case, to the unlawful “use” of the PDO (as governed by Article 103(2)(a) of Regulation), thus focusing only on the concept of “evocation” consisting in a reference, even in terms of suggestion, to the protected designation, to the point of establishing in the mind of the consumer « a sufficient proximity link with that name » (see paragraph 39 of the Judgment).

     

    In addition, the CJEU has noted that the rule on evocation provides that a PDO shall be granted protection against any usurpation, imitation or evocation, even when the true origin of the product « or service » is indicated. In other words, the protection of the PDO covers not only products but also « evocative » services. The CJEU fairly considered, in our opinion, such an interpretation as being perfectly in line with the primary objectives of the Community legislature, aimed at establishing a « wide-ranging » system of protection which is intended to extend to all uses which take advantage of the reputation enjoyed by products covered by one of those indications, with the ultimate view to provide consumers with a strong link between the quality of the products concerned and their geographical origin, as well as enabling “farmers who have made a genuine effort to improve quality to obtain better earnings in return and to prevent third parties from taking unfair advantage of the reputation of the quality of those products” (see paragraph 49 of the Judgment).

     

    The CJEU has then pointed out that the concept of “evocation”, within the meaning of the Regulation, does not require that the product covered by the PDO and the product or service covered by the disputed name be identical or similar (see paragraph 61 of the Judgment). On the contrary, the concept of evocation would subsist – according to the Court – in all cases where the use of a name triggers, in the mind of an average European consumer who is reasonably well informed and reasonably observant and circumspect, a “sufficiently direct and unambiguous” link between that name and the PDO, that link being able to result from several factors such as the partial incorporation of the protected designation, the phonetic and visual similarity between the two names, the “conceptual proximity” between the PDO and the disputed name or even a similarity between the goods protected by a PDO and the goods and/or services bearing that same name, account being given of the fact that it will be up to the referring court to properly consider all the relevant factors surrounding the use of the name at issue.

     

    Finally, the CJEU has concluded that the concept of evocation must be kept as separated from any claim of unfair competition, since Article 103(2)(b) of the Regulation is intended to establish a specific regime of protection in respect to designations of origin, which must be applied independently of any national rule on competition, hence not excluding prospective cumulation between the two forms of protection.

     

    In summary, the Judgement in question has thoroughly and very precisely identified the individual elements which national courts are called upon to assess in order to conclude for the subsistence, on a case-by-case basis, of an unlawful act of evocation. Most importantly, though, the CJEU sought to confirm the rationale of the European legislator, aimed at granting wide-ranging degree of protection to PDOs. As a consequence, this Judgement will have a strong and positive impact on both Italian and French wineries. The CJEU confirms broader protection for PDOs and, since Italy is the European country with the largest number of agri-food products with protected designations of origin – the majority of which are wines – the Judgement in question will provide greater protection to our exclusive “made in” products as well as, of course, all European products deserving such protection.

     

    m.baccarelli@macchi-gangemi.com
    m.lonero@macchi-gangemi.com

     

     

     

    Exhibition of bank documentation: the floor to the Joint Chambers?

     

    The Supreme Court has recently returned (Court of Cassation, 13.09.2021, no. 24641) to the controversial issue of the obligation of banks to deliver to the customer the documentation relating to the contractual relationship. It did so by overturning the hitherto dominant orientation and referring to an old precedent (Court of Cassation 4.04.2016 no. 6511; but see also more recently Court of Cassation 2.05.2019 no. 11543). Therefore, we cannot speak of a mere revirement, but of two opposing positions that would perhaps now make it appropriate to refer the matter to the Joint Chambers.

     

    As is known, Article 119, paragraph 4, of the Italian Law on Bank Matters (“TUB”) provides that: “The client, the person who succeeds him in any capacity and the person who takes over the administration of his assets have the right to obtain, at their own expense, within a reasonable time and, in any case, not more than ninety days, copies of the documentation inherent to single operations carried out in the last ten years”.

     

    This provision has been constantly interpreted by jurisprudence in a broad way, as a guarantee of transparency and protection of the account holder. In particular, it is now generally accepted that the request for documentation may also concern periodic statements of account, even if the bank has regularly communicated them to the customer in compliance with the obligation laid down in paragraphs 1 and 2 of the same Article 119 TUB.

     

    Now, the central point – in view of the massive litigation that has developed in recent years aimed at challenging the charges applied by the bank – is to establish whether the client can request the bank documentation for the first time directly in court or whether the onus is on him to make the request before entering the proceedings and, only in the event of a non-response or incomplete response, this can be repeated in court.

     

    The implications are not insignificant. In the first case, in fact, the customer may bring a case against the bank even without producing the relevant supporting documentation, and then requesting, during the investigation phase pursuant to Art. 210 of the Code of Civil Procedure, that the defendant institution deposit it. Consequently, the initial application – in the absence of a complete picture – could also be merely hypothetical or largely based on conjecture.

     

    The position of the Supreme Court has so far predominantly been along these lines. The argument is based on the consideration that the provision of article 119, paragraph 4, TUB does not provide for any specification or limitation and that, on the contrary, if such a right exists in general a fortiori it must be recognised in court (see Court of Cassation 11.05.2017 no. 11554; Court of Cassation 8.02.2019 no. 3875; Court of Cassation 4.12.2019 no. 31650; Court of Cassation 30.10.2020 no. 24181). A substantive law-centred approach was given, so to speak.

     

    The judgment at stake, on the other hand, starts from a procedural law approach. If in fact – it is said – it is admitted that the plaintiff can introduce the proceedings without the relative documentary support, and then placing the relative fulfilment – through the request for exhibition pursuant to Art. 210 of the Code of Civil Procedure – on the defendant bank, the distribution of the burden of proof established by Art. 2697 of the Civil Code (which requires that plaintiff demonstrates the facts underlying his request) is thus inverted.

     

    This is the background to the interpretation of Art. 210 of the Code of Civil Procedure, which allows the issue of an order to produce documents only in cases where the party cannot independently obtain the documents whose production is requested from the other party or third party.

     

    This is a passage of considerable interest, because it confirms a principle of law, in terms of the search for documentary evidence, which goes beyond the sectoral matter of banking law and extends to a general scope of the rule.

     

    Similarly, the judgment at hand reiterates that a possible lack of evidence on the part of the parties cannot be remedied by the court-appointed expert during the course of the expert’s activities (this point was discussed in the Newsletter of 4.06.2021).

     

    The judgment is substantial and well-reasoned. It remains to be seen whether its reasoning is sufficiently persuasive or whether another panel of the Supreme Court will deem it necessary to refer the matter to the Joint Chambers in order to resolve the above-mentioned contrasting views.

     

    a.gangemi@macchi-gangemi.com

     

     

     

    Biogas and Biomethane: what’s new in the Simplification Decree?

     

    The Simplification Decree (Law Decree no. 77/2021, converted into Law no. 108/2021) introduced certain amendments in the field of biogas production, which represents the most important technology for the production of renewable energy by farms; biomethane can be obtained from biogas, when not intended for self-consumption by the farm. The development of this technology in Italy is slower than in other countries mainly because of the high costs and the fact that these costs are significantly reduced only by economies of scale, which are not in line with the Italian agro-livestock reality made up of medium-small companies. Indeed, up to now this sector has seen the exclusion of synergies between companies and external investments due to regulatory limits connected to the origin of the raw material to feed the plants for the purposes of recognition of public incentives.

     

    The new provisions are intended to simplify as far as possible the processes of circular economy relating to agricultural activities, livestock farming and agro-industrial supply chains, expressly recognizing the qualification of advanced biofuel to by-products used as raw materials for the feeding of biogas plants used to produce biomethane (through the purification of biogas).

     

    Furthermore, it is provided that the Single Authorisation procedure also applies to all infrastructural works necessary for the introduction of biomethane into the existing natural gas transport and distribution network, for which the final measure must also provide for the setting of the constraint aimed at the expropriation of the assets included therein, as well as the variation of the urban planning instruments pursuant to the provisions of the Consolidated Text of the legislative and regulatory provisions on expropriation for public utility.

     

    Moreover, the Simplification Decree amends the provisions of the Budget Law for 2019, which provide for a form of incentive for biogas-fired electricity production plants, with an electrical power not exceeding 300 kW and forming part of the production cycle of an agricultural or livestock enterprise. In particular, it recognizes the possibility of access to incentives, according to the procedures, modalities and tariffs of the Ministerial Decree 23/06/2016, to « the production plants of electric energy powered by biogas, with electric power not exceeding 300 kW and forming part of the production cycle of an agricultural enterprise, breeding, made by farmers also in consortium form and whose power derives for at least 80 percent from waste and materials derived from the farms realizing and for the remaining 20 percent from their second crops« .

     

    The article under review modifies in particular, and significantly, the conditions for access to the above incentives, specifying that the raw materials must derive « prevalently » (and therefore overcoming the previous principle of exclusivity) from the farms that produce them « in compliance with the principle of connection pursuant to article 2135 of the Civil Code« .

     

    The third paragraph of article 2135 of the Civil Code (governing the agricultural enterprise) defines as « connected » to the agricultural activity the activities carried out by the same agricultural entrepreneur aimed at the manipulation, conservation, transformation, marketing and valorisation of products obtained prevalently from the cultivation of the land or woodland or from the rearing of animals, as well as the activities aimed at the supply of goods or services through the prevailing use of equipments or resources of the business normally employed in the exercised agricultural activity, included the activities of valorisation of the territory and of the rural and forestal patrimony, or of reception and hospitality, as defined by the law.

     

    This measure is of particular importance as it should allow for the development of territorial synergies, even between neighbouring businesses, and stimulate investment in the sector, valorising waste and by-products that can be used to produce renewable energy.
    m.patrignani@macchi-gangemi.com
    m.peretti@macchi-gangemi.com

     

     

     

    Is it possible to replace an ineffective, incompetent or biased Court Expert?

     

    A judge may ask to be assisted by one or more experts of “particular technical competence” for the performance of a particular task or the entire proceedings (article 61 of the Italian Civil Code Procedure); this kind of support may be necessary to the judge when the thema decidendum doesn’t regard a simple judicial question but involves the resolution of certain technical issues.

     

    When the expert investigation is permitted and the task has to be performed within a due term, the enquiry might be delayed by external factors outside the control of the Court expert (i.e.particular complexity of the task) or because of the incapacity of the expert to complete the task.

     

    Unfortunately, it happens that the Court expert delays the commencement of the investigation without reason or is unable to understand the technical questions posed by the judge.

     

    Sometimes the Court expert is so busy or is unable to complete the enquiry, even if the inspections have already been completed by the lawyers and the panel of experts, and it can take months or even years (in our experience) to file the report with the Court. In some extreme cases the report is never actually filed.

     

    If the investigation is admitted in the ordinary proceedings, normally the Court expert has to file the report in advance of the hearing fixed for its examination; on the other hand, if the investigation is requested in the Preventive Technical Assessment (articles 696 e 696 bis of the Italian Civil Code Procedure), no hearing is fixed and, in this case, the Court expert has no limit of time to complete the task (unless the lawyer makes a specific complaint to the judge).

     

    What to do in the case of serious delays with the submission of the technical report?

     

    The judge is entitled to renew the investigation or, when serious reasons delays occur, is authorized to substitute the Court expert if necessary (article 196 of the Italian Civil Code Procedure); so, according to the law, a lawyer is able to ask for clarification to the expert or apply for his replacement.

     

    A very different possibility is to request the dismissal of the Court expert (i.e.: “ricusazione”) on the grounds of a conflict of interest. In this respect, it is necessary to file the request at least three days in advance of the scheduled hearing; this term is mandatory pursuant to article 192 of the Italian Civil Code Procedure (see Court of Crotone 20.04.2021; on the dismissal of the Court expert, see Italian Supreme Court, Civil Section VI-3, 20/10/2015 no. 21220; Italian Supreme Court, Employment Section 06/06/2014, no. 12822; Italian Supreme Court, Employment Section 25/05/2009 no. 12004).

     

    It is not clear what to do when the non-competent behavior of the Court expert arises after the investigation has commenced and the 3-day term to file the request for the removal of the Court expert has already expired; according to the Italian Supreme Court it is only possible to ask the judge to exercise his power according to the abovementioned article 196 (see Supreme Court II Civil Section, 19/11/2020, no. 26358).

     

    In summary, if the circumstances described above occur, it is always possible to request the replacement of an ineffective, incompetent or biased Court expert.

     

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

     

     

     

    Does VAT apply to settlement agreements? The response of the Revenue Office.

     

    Ever since VAT was introduced, the question has been raised as to whether the concept of provision of services can include the various obligations involved in settlement agreements. The answer recently provided by the Revenue Office to this question is yes. It is well known that in recent times there has been an increase in the number of replies to queries from the Revenue Office (cf. no. 145, 179, 212, 356 and 401, all of 2021) in which the orientation has been consolidated according to which the payments made in the context of a settlement agreement and related (also) to the waiver of the litigation (existing or threatened) and to any other claim constitute – in any case – the consideration for an obligation to do (or not to do) pursuant to and for the purposes of art. 3 of Presidential Decree no. 633 of 1972.

     

    In particular, the orientation that is taking shape tends to consider in re ipsa the obligations undertaken by the parties in a settlement agreement as provision of services for the benefit of the counterparties. The service would consist, as a rule, in the assumption of an obligation to do or not to do; more precisely, in the commitment not to continue legal actions already started to obtain judicial recognition of rights that are considered to have been violated or, in any case, not to start such actions or to abandon them. The « to do » or « not to do » would consist, in other words, in the acceptance of the concessions of the other party.

     

    This position is based on the provisions of article 3, paragraph 1, of Presidential Decree no. 633 of 1972, which establishes that provision of services are services for consideration dependent on obligations to do, not to do and to allow, regardless of their source, as well as on the Community and national case law that has specified that a service is taxable when a legal relationship exists between the supplier and the recipient within which there is an exchange of reciprocal services (also) when it is resolved in a simple not to do or in an allowance provided that it is in the context of a synallagmatic relationship (Case C-463/14 and Court of Cassation no. 20233/2018).

     

    This orientation has been strongly criticized in doctrine, especially for the « absoluteness » of its conclusions. In principle, in fact, legal relationships modified or created with the settlement agreement (article 1965 of the Civil Code) can have the most varied nature and it is precisely for this reason that a « case by case » assessment of the nature of the services rendered is necessary (e.g. consideration for a service rendered or mere compensation for damages). There have also been those who have emphasized the nature of VAT as a consumption tax, highlighting the concept of « consumption » within the meaning of the EU VAT system, or those, for example, who have focused their analysis on distinguishing the tax effects in relation to simple and novative settlement agreement.

     

    In this varied panorama, the Court of Cassation has recently intervened with an ordinance which, albeit in the field of income tax, is of considerable importance, placing itself in a position that contrasts with the Revenue Office’s practice. This is ordinance no. 20316 of July 15, 2021 with which the Court has excluded that the sums paid on the basis of a settlement for the waiver of a judicial claim can be held as consideration for the assumption of obligations to do, not do or allow and are therefore subject to IRPEF as miscellaneous income.

     

    It is to be hoped that the position of the Court of Cassation in this matter will not be disregarded.

     

    g.sforzini@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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