TOWARDS AN INCREASING DIGITALISATION OF PUBLIC PROCUREMENT: THE TYPE OF CALL TO TENDER OF ANAC (NATIONAL AGENCY AGAINST CORRUPTION) AND THE VIRTUAL FILE OF ECONOMIC OPERATORS.
On 8 January 2022, the first type of call to tender (hereinafter “Tender Rules”) for the digital management of public procurement contracts for services and supplies above the European thresholds officially came into force, following its publication in the Official Gazette on 24 December 2021.
The establishment of the ANAC’s type of call to tender has a twofold objective: on the one hand, it provides contracting authorities with a tool to guarantee efficiency quality standards of administrative actions and uniformity of procedures; on the other hand, the standardization of call to tender’s clauses allows ANAC to support contracting authorities, limiting the number of provisions subject to derogation from the Tender Rules and reducing the time required to prepare tender documentation through the use of digital technology.
The Tender Rules No. 1/2021 is aimed at open tendering procedure of public services and supply contracts in the ordinary sectors above the thresholds, using the criterion of the most advantageous economically offer based on the best value for money.
However, in the explanatory note ANAC clarified that the Tender Rules:
– are intended to provide guidance on the operating procedures for telematic tenders by applying the latest regulatory and case law developments;
– should the contracting authority wish to use the lowest price as the award criterion, the contracting authority may adapt the model proposed by ANAC, without the need to justify the reasons for the exceptions;
– in service and supply contracts above the EU threshold, the clauses of the model contract notice are binding on contracting authorities, unless they are expressly indicated as “optional” or “alternative”;
– the call to tender can also be used for awarding of works as well as by contracting entities operating in the special sectors, in accordance with the regulations of the sector.
With the purpose of boosting the digital management of public tenders, on 29-th November 2021, ANAC approved a second measure by which the telematic virtual file of economic operators (FVOE) was introduced.
The first version of the online file will be operational by March 2022 and, therefore, by that date the following functions will be allowed: verification that the contractor and subcontractor’s requirements remain current during the execution phase, use of the digital file for all the awarding procedures, the setting up of the list of economic operators that have already been verified, pursuant to art. 81 paragraph 4 bis of the Public Contracts Code.
Pending the system’s completion and the full operability of the National Database of Public Contracts (BDNCP) and it’s interoperability with other existing databases and avoiding the introduction of a transitional regime that might not be confirmed in the future, all the reporting obligations and compliance procedures currently in force remain unchanged.
The aim of the digital file is to reduce the formalities to be fulfilled by the contracting authorities and economic operators, to make it easier for contracting authorities to find information on companies and to use previous verifications carried out by other contracting authorities in order to speed up the verification phase of the general requirements.
Therefore, economic operators will no longer be required to produce the same documentation on the general and special requirements for each tender, as this would have already been obtained in the virtual file.
In conclusion, the entry into force of the Tender Rules like ANAC’s Tender Rules and the creation of an online file for economic operators is, according to the president of ANAC, Giuseppe Busia, a “decisive step towards the end of the paper era in public tenders and in the awarding of services and supplies by the public administration“, an “important step in the modernization of the system and the digitalization of procedures” which will certainly ensure a highest level of quality and efficiency in the contracting authorities activities and tremendous savings in terms of time and costs for economic operators.
VIOLATIONS OF THE OBLIGATIONS LYING ON THE FINANCIAL ADVISOR: CONDITIONS AND LIMITS OF THE JOINT AND SEVERAL LIABILITY OF THE APPOINTING INTERMEDIARY PURSUANT TO ARTICLE ART. 31 TUF.
With a recent judgement, the Supreme Court (Civil Cassation, Section I, December 30, 2021, no. 42054) dealt with the financial brokerage theme with reference to the issue of the joint and several liability of the proposing financial intermediary pursuant to art. 31 of Legislative Decree no. 58/98 (TUF) for the damages caused to the investor by the conduct of the financial promoter appointed by the intermediary itself.
The case originates from the request for a declaration of nullity with restitution of the price of the investment and compensation for the damages suffered by some investors vis à vis the financial advisors with reference to several violations of the TUF and of CONSOB Regulation no. 11522/98 as well as with regard to the securities firm (SIM – “società di intermediazione mobiliare”) pursuant to the above-mentioned article 31 TUF.
The Italian Supreme Court affirmed the joint and several liability of the intermediary on the grounds of the relationship of “necessary occasionality” – that is requirement for the joint and several liability of the intermediary pursuant to art. 31 TUF – between the tasks entrusted by the intermediary to the financial advisor and the fact of damage to the investors.
In particular, the Supreme Court specified the conditions and limits of the joint and several liability of the proposing intermediary pursuant to article 31 of the TUF with regard to the conduct of the financial advisor to the detriment of investors. According to the Supreme Court, the principal is jointly and severally liable for the damage caused to the investors by the financial advisor appointed whereas there is a necessary causal link between the damage and the performance of tasks entrusted to the financial advisor and that the joint and several liability is not excluded when the financial advisor, abusing the powers granted, acts pursuing purposes unrelated to those of the appointing intermediary. The joint and several liability shall be excluded only in the presence of collusive conduct of the investor or in case of a conduct with the character of appeasement with respect to the violation of the rules imposed on the financial advisor. Any collusion or appeasement on the part of the damaged investor shall be assessed on the basis of presumptive elements such as the number or repetition of transactions carried out in an irregular manner, the overall value of such transactions, the experience acquired in the investment of financial products by the investor, knowledge of the complex process involved in underwriting investment programs and the overall cultural and socio-economic conditions of the damaged investor.
Consequently, the Supreme Court has given article 31, paragraph 3 TUF an interpretation aimed as far as possible at the protection of the investor damaged by the unlawful conduct of the financial advisors. In this key the principle of law expressed by the Supreme Court shall be read. The Supreme Court aimed to extend as much as possible – as a guarantee for the damaged investor – the scope of application of the joint and several liability of the issuing intermediary, excluding it only when the damaged investor has contributed by way of collusion or mere appeasement to the causation of the damage.
REFORM OF THE JUSTICE SYSTEM AND DELEGATION TO THE GOVERNMENT FOR THE EFFICIENCY OF THE CIVIL PROCESS. A CHRISTMAS PRESENT THAT WE WILL USE NEXT SUMMER.
On the 24th December 2021, Law No. 206 of 26 November 2021 (published in the Official Gazette No. 292 of 9th December 2021) came into force, delegating the Government to adopt, within one year, one or more legislative decrees for the formal and substantive reorganization of the civil process (the “Enabling Law”). There has been harsh criticism of the principles and criteria laid down in the Enabling Law and – while waiting for the legislative decrees to be issued by the Government – someone may have missed that some of its provisions are, instead, of immediate and future application.
Paragraph 37 of Article 1 of the Enabling Law provides, in fact, that the provisions of paragraphs 27 to 36 shall apply to proceedings instituted as from the 180th day following the date of entry into force of the Enabling Law (i.e. as from 22nd June 2022).
Deferring the reader to the examination of the said paragraphs (mainly affecting civil proceedings and rights concerning children), it is worth noting that paragraph 32 of Article 1 introduces changes, and significant ones, to the rules applicable to the attachment against third parties.
The Enabling Law added a fifth paragraph to article 543 of the Code of Civil Procedure, providing that “The creditor, by the date of the appearance hearing indicated in the attachment deed, notifies the debtor and the third party of the notice of entry in the register, indicating the case number, and files the notified notice in the enforcement file. If the notice is not served or not filed in the enforcement file, the attachment will become ineffective. If the attachment is carried out against several third parties, the ineffectiveness will occur only against those third parties in respect of whom the notice is not served or filed. In any case, if the notice referred to in this paragraph is not served, the obligations of the debtor and the third party cease on the date of the hearing indicated in the attachment document”.
Therefore, as from 22 June 2022 (and save subsequent changes by the legislator), this amendment must be duly taken into account if one does not wish to incur the truly incredible consequence of the ineffectiveness of the attachment.
Indeed, it should be noted that, at the time of registration by the creditor, the debtor and the third party have already received notification of the attachment and are therefore fully informed of the commencement of the enforcement, and that article 164 ter of the provisions implementing the Code of Civil Procedure already established the obligation of the creditor to subsequently serve the debtor and the third party with a notice only in the event of failure to register the attachment.
As from 22 June 2022, the creditor will instead have to serve a notice in both cases (of registration and non-registration of the procedure), with the difference that, where it is the creditor himself who has not registered the attachment (in the awareness of its subsequent ineffectiveness), it is reasonable that he should subsequently notify the debtor and third parties, whereas it is not at all reasonable to provide that the creditor should have to serve a notice even if this is not the case and that, failing that, he should incur the ineffectiveness of an attachment that has already been completed and entered in the register, considering that:
– the notice would contain information that is freely and directly available to the debtor and the third party already served with the attachment;
– the main difficulty encountered in enforcement proceedings is the completion of notifications to debtors who suddenly wander off or cannot be found (so that it would be fair not to impose further notification of non-essential acts on the creditor);
– when the attachment is not registered, the debtor and the third party are (or should be) already aware of it by virtue of the provisions of article 164 ter of the Code of Civil Procedure;
– the sanction of the ineffectiveness of the attachment for failure to serve and subsequent file a notice containing, in substance, only the details of the procedure already entered in the register does not appear to be for its seriousness (and definitiveness) proportional to any violation of the rights of the debtor and the third party already aware of the attachment.
The above is without considering that this new provision will also aggravate the work of judicial officers, clerk’s offices and judges, with the risk of a probable slowing down of the procedures that is the exact opposite of the objective of speed and streamlining pursued by the Enabling Law.
Last but not least, as of 22nd June 2022, Article 26-bis of the Code of Civil Procedure will also be amended. When the debtor is one of the public administrations indicated in art. 413, para. 5, Code of Civil Procedure, for the enforcement proceedings regarding credits it will be competent, except as provided by special laws, the judge of the place where it is located the office of the State’s Attorney in whose district the creditor has his residence, domicile, abode or head office.
TERRITORIAL JURISDICTION AND FORUM DESTINATAE SOLUTIONIS.
On the subject of territorial jurisdiction, it is interesting to consider the decision of United Sections of the Italian Supreme Court (judgment n° 17989 dated 13.06.2016) concerning the determination of the forum destinatae solutionis in order to establish the place of jurisdiction and the formal notice to the debtor according to article 1219, par. 2, no. 3 of the Italian Civil Code (decision published in Foro Italiano, 2017, 6, 2033).
The issue addressed (and also resolved) by the Supreme Court was the following: according to article 1182, par. 3 ICC, the pecuniary obligations that need to be fulfilled at the creditor’s domicile are only the ones that are liquid or those that are defined in their amount by the title?
According to paragraphs 3 and 4 of article 1182 ICC,
«The obligation related to a sum of money has to be fulfilled at creditor’s domicile at the time of its expiry. If that domicile is different from the one that the creditor had when the obligation arose and this makes fulfilment of the obligation more difficult, the debtor, with the prior express declaration of the creditor, has the right to make the payment at his domicile », on the contrary «in the other cases the obligation has to be fulfilled at the domicile that the debtor had at the time of the expiration of the obligation».
In this regard, using the definitions set by the juridical doctrine, the portables obligations to be fulfilled at the creditor’s domicile (i.e. “the portable obligations”) are distinguished from the quérelables obligations, whose performance has to be requested at the debtor’s domicile (i.e. “the requested obligations”).
The decision of the United Sections of the Italian Supreme Court resolved a conflict in case-law. The two contrasting opinions were the following:
1. the first assumption, more traditional, alleged that the pecuniary obligations provided by article 1182, par. 3 ICC are solely those specified in the legal title, be it by agreement or established by the Court (see Supreme Court, Sect. VI, 12.10.2011, n. 21000 published in Giustizia Civile Massimario, 2011, 10, 1437);
2. the second opinion averred that the “liquid” credit is the one simply claimed by the creditor according to article 10 of the Italian Procedural Civil Code (see Supreme Court, 17.05.2011, n° 10837 published in Giustizia Civile Massimario 2011, 5, 758; Supreme Court 21.05.2010 n° 12455 published in Il Civilista, 2011, 2, 45).
However, as indicated above, the United Sections of the Italian Supreme Court ruled that:
“… the amount of the liquid pecuniary obligations set forth by article 1182, par. 3 ICC, is exclusively the one specified in a legal title or which can be determined by simple arithmetical calculation according to a legal title …” (see Supreme Court n° 1789/2016 abovementioned).
Thus, only if stated by a legal title, understood as an agreement between the parties or a decision of the judge defining which sums have to be paid (liquid credit), the place of performance will be the creditor’s domicile for the purposes of the forum destinatae solutionis. Alternatively, if the credit remains illiquid, that is not specified in the legal title, the place of performance will be the debtor’s domicile (place of jurisdiction).
The Italian Supreme Court also indicated that the formal notice to the debtor provided by article 1219, par. 2, 3 ICC concerns the liquid credits only.
With reference to the territorial jurisdiction, the decision has significant implications for the credit recovery activities based on creditor’s invoices only, since, as is well known, the invoices are unilateral documents and are not legal titles.
As a consequence, the rule of the Italian Supreme Court favored the debtor, also to avoid “… giving to the creditor the power to choose not only the place of performance of the obligation, but the suitable place of jurisdiction as well …” (A. Trotta, Il forum destinatae solutionis nelle obbligazioni protables: sul concetto di liquidità, published in Giurisprudenza Italiana, 2017, 5, 1064).
In order to mitigate the consequences of such an approach (assault on the place of jurisdiction of the debtor), it could be argued that the invoices, if filed together with the certified extracts of the accounting entries, may well constitute a written evidence of a “liquid” credit according to articles 633 par. 1 and 634 par. 2 IPCC.
However, the fact remains that the path is now clear: the Italian lower court case law complied with the Italian Supreme Court (Court of Novara, Sect. I, 04/01/2021, n° 1, Court of Ferrara, 27/10/2020, n° 623, Court of Nola, Sect. I, 25.09.2020, n° 1356; Court of Rome, Sect. X, 28/08/2019, n° 16751) with a few exceptions (Court of Appeal of Rome, Sect. III, 08/07/2021, n° 5060; Court of Milan, Sect. III, 10/04/2020, n° 890; Court of Spoleto, 04/01/2019, n° 11).
THE EUROPEAN UNION PUSHES FOR THE ELIMINATION OF SHELL COMPANIES AT THE EU LEVEL.
On December 22, the EU Commission presented the proposal for a directive to prevent the misuse of shell companies for tax purposes (Go to Link). The proposal is part of a package of measures that also includes the proposal for a directive on the minimum taxation of multinational companies which transposes the agreement internationally reached on “Pillar 2”.
Unlike the Italian legislation on shell companies, the proposed directive does not entail the application of a minimum level of taxation but denies the benefits deriving from double tax treaties and EU directives.
Should it be adopted, the directive would have to be transposed by the Member States by 30 June 2023 and enter into force on 1 January 2024. However, since the observation period for the purposes of the substance test concerns the two previous tax periods, it is necessary to carefully check whether the conditions set out in the proposed directive are met as early as this year.
According to the Commission, despite the progress made with the Anti-Tax Avoidance Directive (ATAD) and with the extension of the scope of the Administrative Cooperation Directive (DAC), legal entities with no minimal substance and economic activity continue to cause unfair tax competition and to create an unfair tax burden distribution among taxpayers.
The proposed directive has a very broad scope, applying to all types of undertakings that can be treated as a “resident” for tax purposes within the EU.
The proposed directive provides for a substance test to identify entities that do not have minimal substance and are misused for the purpose of obtaining tax advantages but also provides for automatic exchange of information and the possibility of asking another Member State to ascertain entities that are suspected of not complying with the criteria imposed by the directive.
The substance test is aimed at ascertaining the existence of all the following circumstances:
(i) more than 75% of the revenues accruing to the undertaking in the preceding two tax years is passive income or the book value of the assets that can generate passive income is more than 75% of the total book value of the undertaking’s assets;
(ii) the undertaking is engaged in cross-border activity;
(iii) in the preceding two tax years, the undertaking outsourced the administration of day-to-day operations and the decision-making on significant functions.
Where an undertaking meets all the three criteria mentioned above, it has specific reporting obligations in its tax return regarding a series of “indicators of minimum substance for tax purposes”, aimed at ascertaining whether the undertaking:
a) has own premises in the Member State or premises for its exclusive use;
b) has at least one own and active bank account in the EU;
c) one or more directors are resident for tax purposes in the Member State of the undertaking or at no greater distance from that Member State insofar as such distance is compatible with the proper performance of their duties, are qualified and authorized to make decisions in relation to activities that generate passive income and they do so regularly and, moreover, they are not employees of an enterprise that is not an associated enterprise and do not perform the function of director or equivalent of other enterprises that are not associated enterprises or the majority of full-time employees are resident for tax purposes in the Member State of the undertaking or at no greater distance from that Member State insofar as such distance is compatible with the proper performance of their duties and those employees are qualified to carry out the activities that generate the passive income.
The information subject to reporting therefore aims at identifying those companies, especially within multinational groups, which intercept dividends or other passive income, but which have very small substance and directors who belong to companies specialized in the management of companies on behalf of third parties or who are employees of the non-EU parent company.
If a company does not possess all the minimum substance indicators – and has not obtained an exemption under art. 10 based on evidence that the existence of the undertaking does not reduce the overall tax liability of the group – it can in any case rebut the presumption of lack of substance by demonstrating, that the undertaking has performed and continuously had control over, and borne the risks of, the business activities that generated the passive income or, in the absence of income, the undertaking’s assets.
In the event of failure to pass the test, the entity cannot benefit from the parent-subsidiary directive and the interest and royalties directive and is not entitled to a tax residence certificate for the purposes of double tax treaties.
Furthermore, if both the payer of the passive income and the shareholder(s) of the shell undertaking reside in a Member State, the Member State of the shareholder(s) shall tax the relevant income of the undertaking in accordance with its national law as if it had directly accrued to the undertaking’s shareholder(s) and deduct any tax paid on such income at the Member State of the undertaking.
If, on the other hand, the shell undertaking’s shareholder(s) is not resident for tax purposes in a Member State, the Member State of the payer of this income shall apply withholding tax in accordance with its national law, without prejudice to any double tax treaty in force with the third country jurisdiction of the undertaking’s shareholder(s).
This is an important clarification because it is frequent that the Revenue Agency, when it disregards a holding company due to its lack of substance, also refuses the application of the double tax treaty in force with the resident state of its shareholder, alleging that the application of the tax treaty with the residence state of the final beneficiary of the income cannot be recognized in the event of tax abuse.
A final remark concerns the exchange of information. The proposed directive provides that where the competent authorities of a Member State consider – even following a tax audit – that a particular undertaking is a shell, they must automatically inform all the other Member States within 30 days, also attaching the tax audit documents. This essentially entails the risk that the assessment by the tax authority of a Member State of a transaction involving a shell company may also trigger tax audits in other Member States.
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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