Publié le: 04/06/2021

    The precautionary suspension of the Meeting’s resolution to exclude the shareholder is of a conservative nature.


    The precautionary suspension of the resolution to exclude a shareholder has a merely conservative nature, aimed at preventing the duration of the judgement of annulment from irreversibly affecting the position of the shareholder himself. It follows that, should the judgement on the merits concerning the appeal against that resolution be extinguished, the aforesaid measure loses its effectiveness.


    With Ordinance no. 10986/21, filed on April 26 this year, the Supreme Court of Cassation established that the precautionary measures, ante causam, of suspension of shareholders’ meeting resolutions to exclude a shareholder from the company must be followed by a ruling on the merits that definitively declares their cancellation, otherwise the aforesaid precautionary measures lose their effectiveness.


    The case at hand arose from a precautionary order, with which the Court of Venice granted the request made by the shareholder of a « in nome collettivo » company to suspend the resolution by which he had been excluded from the company. Subsequently, a judgment on the merits was introduced to obtain the actual cancellation of the resolution. However, the request to fix the hearing was late and therefore the proceedings were declared terminated by the Court, a decision that became final.


    The suspension ordered as a precautionary measure was still effective. The Company therefore applied for the suspension to be declared ineffective. Both the Court and the Court of Appeal rejected the request, recognizing the « anticipatory » nature of the precautionary measure. The company appealed the decision in cassation, requesting recognition of the « conservative » nature of the precautionary measure.


    Attributing an anticipatory nature to the precautionary ante causam protection means that this can operate on a provisional basis and in advance of the effects of the future decision on the merits which, if delayed, would be ineffective or impracticable, and has its own autonomous stability. In the absence of a judgement on the merits, the effectiveness of the precautionary decision remains.


    Whereas the protection has a « conservative » nature, as it normally is (ex art. 669-novies c.p.c.), this has the purpose of preserving the state of facts unaltered while waiting for the ruling on the merits, so that the latter can actually have effect in the future. Therefore, the precautionary decision must necessarily be followed by the introduction of a judgement on the merits. If the proceedings on the merits are not brought or if they are cancelled, the precautionary order loses its effectiveness.


    Adopting the approach already expressed in Cass. no. 24939/19, the Court of Cassation pointed out that the judgment on the merits that has as its object the cancellation of the resolution of exclusion of the shareholder – as in the case in question, then declared cancelled – has a « costitutiva » nature for cancellation pursuant to art. 2908 of the Civil Code. The « costitutiva » rulings do not take effect until they have become final (Cass. no. 17311 of 2016; Cass. no. 10605 of 2016). Only then is there the elimination of the resolution, with effect from the moment in which it was adopted and removal of all the effects produced in the meantime as well as precluding further judgments on the same.


    Consequently, the relevant precautionary judgement cannot have the effect of « anticipating » the effects of the judgement (which would not yet produce effects). In the case of « costitutiva » rulings, what the precautionary judgement can protect, in anticipation, is only the enforceable effect that may derive from it: in this case, to avoid that the execution of the challenged resolution, while the judgement is pending, determines changes in fact and in law that could block the future execution of the decision that concludes the judgement, given its retroactive effect.


    The Court, fortunately, highlighted the lack of credibility of the thesis of the decisions of the previous courts and therefore declared the suspension of the shareholders’ meeting resolution, which had been ordered by the Court as a precautionary measure, to be ineffective.







    The Revenue Agency clarifies the rules for determining the employment income of workers who returned from abroad due to the pandemic and remotely working from Italy.


    The restrictions on the free movement of people caused by the COVID-19 pandemic raise significant tax issues. Workers employed abroad returned to their states of residence and remained there during the months of the pandemic, while others remained stranded abroad for longer than originally expected.


    This type of circumstances impact on the taxation of employment income, but may also affect the existence of a permanent establishment of the employer or affect the residence of companies (in the event of restrictions on the mobility of their directors).


    The OECD, aware of the difficulty of applying the rules on taxation of cross-border income in the emergency situation, already in April 2020 issued the document entitled « OECD Secretariat Analysis of Tax Treaties and the Impact of the COVID-19 Crisis » updated on January 21, 2021.


    The Italian government, in response to a parliamentary question (n. 5-04654 of 3.12.2020) expressed that it shares the recommendation of the OECD in the exceptional situation of the pandemic to « neutralize » as much as possible the impact of the restriction measures due to the Covid crisis in the application of tax treaties.


    Italy also concluded agreements with the competent authorities of some States aimed at resolving the interpretative issues in relation to the treaty provisions on employment income with reference to the taxation of the remuneration received by frontier workers who work remotely due to the measures for the Covid-19 pandemic (see the interpretative agreements of the tax treaties with Austria, France and Switzerland). These agreements allow the specific treaty provisions to continue to apply to employees and frontier workers, even if the same, due to the epidemiological emergency, no longer routinely cross the border or, in any case, carry out their work in a State other than that of tax residence.


    The response of May 17, 2021 n. 345 to a request for a ruling with which the Revenue Agency denied the application of the so-called conventional remuneration pursuant to article 51, paragraph 8-bis of the Income Tax Code to a worker posted abroad but returned to Italy due to the pandemic from where he remotely worked.


    Paragraph 8-bis of article 51 of the Income Tax Code provides that workers resident in Italy but who work abroad on a continuous basis and as the exclusive object of the relationship for a period exceeding 183 days over a twelve-month period are subject to tax not on the basis of actual remuneration but of the “conventional wage” determined annually with a specific decree of the Ministry of Labor and Social Policies.


    According to the Revenue Agency, in the case of a worker normally employed abroad (and therefore subject to tax on the basis of the “conventional wage”) but returning to Italy from where he remotely works during the pandemic, the employment income must be determined according to the ordinary rules to determine the salary of employees and not with the “conventional wage”. In this case, the Agency points out that the worker is in fact not physically located abroad but in Italy. The fact that, in the absence of a pandemic, the worker would have worked abroad is of no relevance.


    Finally, the Revenue Agency recently clarified the tax treatment of the sums paid to workers as reimbursement of expenses incurred in relation to the remote work.


    In particular, in the reply dated 30 April 2021 no. 314 to a ruling request, the Revenue Agency concluded that the sums paid as reimbursement based on parameters aimed at identifying costs saved by the Company are considered to be reimbursements of expenses incurred in the exclusive interest of the employer. What is relevant is that the costs incurred by the employee in the exclusive interest of the employer are determined based on objective and ascertainable criteria.


    Conversely, as specified in the subsequent reply of 11 May 2021, no. 328 to a ruling request when the sums reimbursed to remotely working employees are determined on a flat-rate basis, they are taxable as employment income.







    An example of clarity in litigation over derivatives.


    The Court of Milan has recently examined a case concerning seven derivative contracts entered into between a leading Italian bank and a joint stock company, in the period between 2001 and 2006.


    Judgment No. 2399/2021, published on 22 March 2021, is one of those rare cases in which the Judge deals with the complexity of derivative contracts in a crystal-clear way and does so in six points of law.


    – First of all, the Judge states that the date of the master agreement is not required for the contract validity, but in order to establish the antecedence of the master agreement with respect to the subsequent swap contracts. Such date may also be inferred indirectly or by relation to other elements (which is precisely what the Court does in the case by inferring the date from telephone arrangements referred to in a swap contract).


    – The lack of the clause governing the cooling-off period (i.e. the seven day right of withdrawal pursuant to art. 30(7) of the Consolidated Law on Finance, which is required for contracts concluded outside the bank’s premises), cannot be invoked in relation to the master agreement, which is a contract that does not entail any investment, and it does not fall within the category of contracts of placement of financial instruments or portfolio management; while as for the swap contracts, the lack of this clause and the relevant factual circumstances must be proved by the claimant.


    The hedging nature of the derivative contracts must also be specifically proven by the claimant with reference to the debt underlying the derivative contracts on the basis of the criteria indicated by Consob and IAS/IFRS accounting principles. In the absence of such proof, the claim must be dismissed. For contracts resulting from a renegotiation (whose structure usually absorbs past losses), according to the Judge, the hedging function is « irrelevant », given that speculative derivatives are allowed by law too.


    – As regards the lack of information by the bank on the nature and risks of the transactions, which in the defence of the company would have generated the termination of the contracts, the Judge applies the statute of limitations since more than ten years have elapsed since the company entered into the last swap contract with respect to the request filed with the Court. Moreover, the company has not alleged or proven any essential and recognisable error for the purposes of the annulment of the contracts in question.


    – The Judge also rejected the issue concerning the failure to disclose the mark-to-market because « The mark-to-market (MtM) is, at a given moment, the value of the contract based on the expected future cash flows; it therefore corresponds to the theoretical market price that a third party would be willing to pay to take over the contract« . The Court correctly states that the MtM is not a cost and cannot be considered an essential element of the contract for the purposes of nullity; it is only potentially relevant. Moreover, the Court correctly points out that such a theoretical value must be entered in the balance sheet by the company which must be aware of it. Any difference in the quantification of the MtM does not constitute a genetic defect of the contract and cannot be the basis for the claim that swap contracts are null and void.


    This last point is the most interesting one because case law (but also some scholars) has difficulty in understanding that the informative elements of derivative contracts cannot, and it is not correct that they have, in the opinion of the writer, an impact on the genesis of the contract and therefore, the lack of information on the MtM cannot generate the annulment of the derivative contract, but at most compensation for damages. This judgment has the merit of summarising and applying a concept that many Judges still struggle to apply, even among the accounting judiciary.







    Does generalized civic access also apply to public tenders?


    The Plenary Assembly of the Council of State, with ruling no. 10/2020 has finally intervened to clarify the relations that exist between the generalized civic access pursuant to art. 5 of Legislative Decree no. 33/2013 and the right of access to tender documents established in art. 53 of Legislative Decree no. 50/2016 (Code of Public Contracts).


    The Plenary Assembly of the Council of State, with ruling no. 10/2020 has finally intervened to clarify the relations that exist between the generalized civic access pursuant to art. 5 of Legislative Decree no. 33/2013 and the right of access to tender documents established in art. 53 of Legislative Decree no. 50/2016 (Code of Public Contracts).


    The clarification issued by the Council of State is of particular relevance for all economic operators who, in our legal system, by participating in public tenders, have an interest in obtaining information on the execution of contracts awarded by the Contracting Authority. And in fact, it is expected that the decision shall highlight the right of access even during the executive phase of public contracts, in cases where the economic operator does not have a direct, current and concrete interest in the knowledge of the tender documents, but only an unqualified exploratory interest.


    As is well known, the framework of art. 53 of the Code for tenders is very structured. In fact, clear and precise rules are laid down with regard, above all, to deferment and exclusion from the right of access. For example, an important case of exclusion from the right of access concerns, in particular, all the information provided in the context of or to justify the offer, which according to the bidder’s motivated and substantiated declaration, constitute technical or commercial secrets. Other cases are regulated by art. 53.


    Administrative case-law has outlined how the reported framework provides a sort of: « regulatory microsystem, connected to the uniqueness of the sector in question, even though falling within the general features regarding access defined by Law No. 241 of 1990 » (ref.: Consiglio Giustizia Amministrativa per la Regione Sicilia – Council of the Administrative Court for the region of Sicily – 23 September 2016, no. 324). This microsystem only applies if a competitor proposes an access to the contracting station so as to protect his interests in court. The rules set out in Law no. 241 of 1990 are fully applicable outside this perimeter. It is clear that the reasons for this peculiarity are linked to the need to consider the interest in the protection of competition that governs the sector in question. In fact, it is important to prevent the disclosure of information whose contents could be used to distort competition rules.


    The matter therefore, concerns the relationship between the need for legal defense and the information provided in the context of or to justify the offer, which according to the bidder’s motivated and substantiated declaration, constitute technical or commercial secrets. The wording of paragraph 6 of art. 53 seems to attribute prominent value to the need for defense.


    Even administrative case-law has interpreted this provision in the sense that it is necessary to carry out: « an accurate check regarding the actual use of the documentation requested, or a prognostic judgment that cannot disregard any procedural preclusions incurred by the applicant » (Consiglio di Stato – Council of State – Sec. V, June 17, 2014, no. 3079).


    Well, on the basis of these principles set out by administrative case-law regarding the limits of access to tender documents, it is now necessary to assess the relation between the above legislation and civic access.


    Before the recent ruling of the Plenary Assembly of the Council of State, no. 10 of February 2, 2020, the administrative case-law showed a clear contrast between an orientation that believed that civic access could be requested in case of public tenders and another that instead excluded it, since it was believed that the institution referred to in art. 5-bis of Legislative Decree no. 33/2013 did not apply to all cases where the matter was already governed by other specific laws. Such as, for example, the Public Contracts Code which, as we have seen, already provides for a special discipline within it (art. 53) which would not therefore admit heterointegration.


    On this point, in fact, the aforementioned decision of the Plenary Assembly no. 10/2020 intervened, which clearly stated that: the framework of generalized civic access, subject to the temporary and/or absolute prohibitions under art. 53 of Legislative Decree no. 50 of 2016, is also applicable to the deeds of the tender procedures and, in particular, to the execution of public contracts, absolutely not precluding the exception of paragraph 3 of art. 5-bis of legislative decree no. 33 of 2013 in conjunction with art. 53 and with the provisions of law no. 241 of 1990, which does not exempt the whole matter from the generalized civic access, but remains subject to the verification of the compatibility of access with the relative exceptions of art. 5-bis, paragraphs 1 and 2, to protect the extent of the interests, both public and private, included in that provision, balancing the value between transparency and confidentiality« .


    In this regard, the Plenary Assembly of the Council of State reiterates that: « the generalized civic access includes a declared access that is intended to ensure democratic control over administrative activity, where the so-called right to know, an individual’s interest in knowledge, is protected in itself, if and insofar as there are no contrary reasons of public or private interest, reasons expressed by the so-called relative exceptions referred to in art. 5-bis, paragraphs 1 and 2, of Legislative Decree no. 33 of 2013« .


    Therefore even in our legal system, it is necessary to accept « the evolution of the visibility of power, together with the consequent widespread accessibility of its actions on the FOLA model, shows the history of the slow progress towards democracy and, with the progressive overcoming of the arcana imperii of Tacitan memory, ensures the necessary democratic nature of the continuous process of information and formation of public opinion (Corte Constituzionale – Constitutional Court – May 7, 2002, no. 155) ».


    For these reasons, the institution of generalized civic access can now also be applied to public tenders.


    It should be noted, however, that the ruling in question expressly excludes the limits of « disclosure » already established by art. 53 of the Code, as well as the relative exceptions set out in art. 5-bis paragraphs 1 and 2 of Legislative Decree no. 33/2013.







    The nullity of the court-appointed technical consultancy.


    With Ordinance no. 9811 dated 14.04.2021, the Supreme Court referred the issue to the Joint Chambers regarding whether or not the nullity of the court-appointed technical consultancy (the report filed by an expert appointed by the court, herein after: “OTC”) can be detected ex officio.


    This decision represents an opportunity to reflect on the matter (the court-appointed technical consultancy), which very often represents the central convergence of the trial and which – not as often – is the object of reflections on its development and on the limits of the powers of the appointed expert.


    There are many reasons for the nullity of the CTU. To follow are the most recurrent cases:


    – omission of the notice regarding the date of commencement of the expert’s operations;

    – failure to send the draft of the expert’s report to one or more parties;

    – admission of a defence lawyer to the expert operations without having a mandate;

    – investigation of facts unrelated to the object of the proceedings;

    – acquisition of evidence directly by the court-appointed expert (this applies in particular to the acquisition by the court-appointed expert of documents that were not produced in court by the parties).


    With reference to the first three cases, there are no doubts regarding the existence of a cause for nullity. At the same time, case law has constantly stated the nature of “relative” nullity: given that the right of defence of a party is infringed, it is in the interest of the latter that nullity is sanctioned and, therefore, it is the party’s responsibility to object at the earliest opportunity. In the absence of a specific and timely objection by the party, the nullity is considered as legitimized.


    The case is different for the last two cases. With reference to these, on the one hand the traditional orientation tended to assimilate them to the others, affirming the nature of “relative” nullity; on the other hand, the Supreme Court has recently changed position (Cass. 6.12.2019 no. 31886) establishing that – in these cases – the case has to be considered as “absolute” nullity, therefore always detectable ex officio.


    In fact, it is believed that the traditional orientation is not consistent with the time bars for alleging facts and arguments and for filing documents and investigative petitions introduced since the 1990 reform. These impose specific deadlines for the filing of documents and for the formulation of investigative requests and their observance is in the superior general interest. If, therefore, it is not possible to remedy the violation of such peremptory terms in the investigative phase by the acquiescence of the parties, the same principle must apply in the context of the performance of expert activities.


    On the merits, the case in which the OTC extends its investigations to facts extraneous to the object of the proceedings violates the provisions of articles 112 and 115 of the Code of Civil Procedure, while the acquisition of evidence not already provided by the parties violates the terms provided for by article 183, paragraph 6 of the Code of Civil Procedure.


    As regards the prohibition to acquire documents or other factual elements not already provided by the parties, the wording of article 194 of the Code of Civil Procedure – whose literal content is actually very broad – is now interpreted in a restrictive sense, in accordance with the system of assertive and investigative preclusions provided for by article 183 of the Code of Civil Procedure.


    The Supreme Court provides in this regard for two exceptions:


    – when the proof of the fact constituting the claim cannot be objectively provided by the traditional means of proof and

    – when it concerns accessory or secondary technical facts or elements to confirm the truthfulness of the evidence already introduced by the parties.


    In addition to these exceptions, in the case of an accounting OTC, there is of course the provision of art. 198 of the Code of Civil Procedure, according to which the acquisition of further documentation is allowed with the consent of all the parties.


    It now remains to be seen whether the United Sections will adhere to the second, more recent direction (as appears probable in the light of its ample and articulate reasoning) or will prefer to refer back to the previous, traditional orientation.







    Preventive Technical Assessment for conciliation purposes according to article 696 bis c.p.c.: profile of inadmissibility.


    The Preservation of Evidence Proceedings (PEP) for conciliation purposes (article 696bis c.p.c.) was introduced with the objective of reducing the volume of disputes and, if possible, to encourage settlement, thanks to the intervention of a court expert who assumes the role of a technical assistant and conciliator with the task – but no obligation – to attempt mediation.


    The use of the PEP for conciliation purposes can be distinguished from the ordinary article 696 c.p.c. preventive procedure because there is no requirement for the conditions of fumus boni iuris and periculum in mora to be met. Nevertheless, to be admissible it is necessary that the substance of the dispute has a single point of controversy, either in fact or a technical element, which is the principal subject of the dispute in the ordinary dispute procedure (see Court of Milano, 17.04.2017).


    For example: in the case of a road traffic accident, if there is no dispute between the parties regarding responsibility for the accident, and they are seeking only to quantify the amount of damages, the PEP could be appropriately requested to start the technical investigation while, at the same time, trying to reach an amicable settlement of the dispute.


    At first instance, case law has affirmed several times that, where there is a dispute about the right to claim (the driver liability in the above-mentioned example), the application cannot be filed. The simplest illustration is when the PEP is invoked during a proceeding already pending between the same parties, in which case the application is not admissible “… due to the lack of the logical-legal prerequisite underlying this procedural instrument, or the need to prevent the onset of a judicial dispute.… (see Court of Santa Maria Capua Vetere, 11.07.2011).


    In addition, the PEP is not admissible in the case of the illegitimate withdrawal of funds from a bank account, which would represent an anticipation of the sentence, incompatible with the conciliative function of the procedural instrument (see Court of Milan, Section VI, Decree 06/04/2017).


    Nor is possible to use the instrument if a preventive decision on the matter is requested before filing the pleading (see Court of Mantova, 04/09/2008); moreover, the conciliative procedure is not admissible if the legal reasons put forward by the appellant or the lack of evidence offered suggest that, in the context of the merits of the case, the assessment will prove to be useless for the purposes of the decision (see Court of Cinquefrondi, 28/01/2011).


    In the light of these findings, the Court of Rome made the following ruling: « … the only limit [for the admission of ATP art. 696bis c.p.c.] is the hypothesis in which there is a radical dispute not of the responsibility but of the same relationship from which the credit to be ascertained would originate, since using this last hypothesis, the preventive consultancy would be merely exploratory » (see Court of Rome, Section VI, 17/02/2020).


    In addition, the PEP is not admissible in the case of the illegitimate withdrawal of funds from a bank account, which would represent an anticipation of the sentence, incompatible with the conciliative function of the procedural instrument (see Court of Milan, Section VI, Decree 06/04/2017).






    The first 3 years of GDPR implementation: what awaits data controllers in the near future?


    May 25, 2021 marks three years from the effective implementation of Regulation (EU) 2016/679 regarding the protection of individuals in terms of processing of personal data and the free movement of such data (« GDPR »).


    During these few years, data subjects submitted over 27,000 complaints and as many as 3,800 data breach notifications (personal data breaches) to the competent authority.


    The Data Protection Authority has also been notified of the appointment of nearly 60,000 Data Protection Officers (« DPOs »).


    The Data Protection Authority’s activities have been positive and constantly on the increase.


    Over time, the GDPR, on the other hand, has established itself as an international standard for the implementation of legislation regarding the protection of personal data and as an essential focal point for processing of data within corporate groups.


    The uniqueness of the GDPR since its entry into force, has been the blanket application to all economic operators, including those operators who are not based in an EU member state but process data of European citizens. One of the first regulations to be of universal application.


    The correct compliance with the GDPR by the different economic operators, also data controllers, no longer represents only a mere regulatory compliance but is now positively perceived by consumers and other economic operators; think of the choice of companies with which to collaborate that also offer those fundamental guarantees to be appointed as data processors.


    Not only! Even consumers are starting to pay attention to the security of their data and, above all, to the image of a given company from this point of view (think of the issue regarding the new policies of WhatsApp). It is crucial, therefore, that all companies are up to date and compliant with privacy regulations.


    Among the most important issues, also highlighted by the Data Protection Authority during the celebration of this milestone, are, among many, the appointment of the DPO, the performance of privacy impact assessments, the proper acquisition and management of consents, the register of processing, transfer of data abroad and the principles of privacy by design and by default.


    With respect to the issues mentioned by the Data Protection Authority, as data controllers, are you GDPR compliant?








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