“NEW YEAR, NEW JUSTICE“. THE REFORM OF THE CIVIL PROCESS HAS ALREADY PARTIALLY ENTERED INTO FORCE. LET’S SEE WHAT HAS CHANGED (AND WILL CHANGE) WITH THE 2023 BUDGET LAW.
By means of art. 1, paragraph 380, of the 2023 budget law (No. 197 of 29 December 2022), the entry into force of the civil process reform – initially scheduled for 30 June 2023 – was brought forward by a substantial amendment of the transitional rules provided for in art. 35 of the Legislative Decree no. 149 of 10.10.2022.
In particular, the budget law has established that the provisions of Legislative Decree No. 149 of 10.10.2022 (that is, the “Reform”) “unless otherwise provided, have effect from 28 February 2023 and apply to proceedings established after that date. Previous provisions shall apply to proceedings pending on 28 February 2023“.
The new formulation of Article 35, however, remains cryptic, as it states that the provisions of the Reform have effect from 28 February, but apply to proceedings instituted after that date (whereas for those pending at that date the provisions previously in force apply).
It is therefore assumed that only the processes introduced from 1 March 2023 will be subject to the new legislation. The doubt whether it should apply to the new rules as from 28 February 2023, however, remains.
Furthermore, in addition to having brought forward the entry into force of the Reform by four months, the legislator has also provided for the entry into force of some provisions as early as 1 January 2023, also with reference to the processes already pending.
In particular, the rules to which immediate application was given as from 1 January 2023 can be substantially divided into three groups:
1. the one on the modalities of conduct of hearings (Articles 127, third paragraph, 127-bis, 127-ter of the Code of Civil Procedure, and 196 duodecies of the provisions implementing the Code of Civil Procedure) and oath of the Court-appointed expert (referred to in Article No. 193, second paragraph, Code of Civil Procedure), which apply before all jurisdictions (i.e. Justice of the Peace, Court, Juvenile Court, High Court of Public Waters, Court of Appeal, Court of Cassation and Commissioner for the civic uses liquidation);
2. the one concerning digital justice (referred to in the new articles inserted by the reform in Chapter I of Section V-ter to the provisions implementing the Code of Civil Procedure) which applies only before the Tribunal, the Court of Appeal and the Court of Cassation (with the exception of Articles 196-quater and 196-sexiesof the provisions implementing the Code of Civil Procedure which shall apply from 28 February 2023 for the staff employed by public administrations to represent themselves in court);
3. the one regarding the procedure before the Court of Cassation where:
(i) the provisions of Chapter III of Section III of Book II of the Code of Civil Procedure and of Chapter IV of the provisions implementing the Code of Civil Procedure shall apply to judgments brought by an appeal notified from 1 January 2023;
(ii) Articles 372, 375, 376, 377, 378, 379, 380, 380-bis, 380-bis.1, 380 ter, 390 and 390-bis of the Code of Civil Procedure will also apply to judgments brought by an appeal already served on 1 January 2023 for which a hearing or meeting in a council chamber has not yet been fixed;
and
(iii) Article 363-bis of the Code of Civil Procedure (Reference for a preliminary ruling) which applies to the newly introduced proceedings on the merits or those already pending as of 1 January 2023.
With regard to the first group, the rules which have already entered into force (and which are referred to for further analysis) change: (i) the procedure for holding hearings which, as from 1 January 2023, may take place in person as well as remotely providing a link in video conference, and (ii) the method of oath of the Court-appointed expert that can proceed by written declaration, instead of personally in court (as, in fact, already provided for in the previous emergency legislation).
As regards the second group, the rules which have already entered into force (and which are referred to for further analysis) provide essentially for the obligation to file all procedural documents electronically in proceedings before the Tribunal, the Court of Appeal and the Court of Cassation.
As for the third group, given the extent of the changes made by the Reform, please refer directly to the relevant provisions, drawing attention to the new Article 380-bis of the Code of Civil Procedure (which applies to judgments already pending in the Court of Cassation for which a hearing or meeting in the council chamber has not yet been scheduled) which states: “If the date of the decision has not yet been fixed, the President of the Chamber or an adviser appointed by this President may formulate a concise proposal for the definition of the judgement, if he recognizes the inadmissibility or manifest groundlessness of the main appeal and any incidental appeal proposed. The proposal is communicated to the counsel of the parties.
Within forty days of the communication, the appellant party, through an application signed by the defender equipped with a new special power of attorney, can request the decision. Failing this, the appeal is considered abandoned and the Court proceeds pursuant to article 391.
If within the period referred to in the second subparagraph the Party requests a decision, the Court shall proceed in accordance with Article 380-bis.1 and, when determining its judgment in accordance with the proposal, shall apply the third and fourth paragraphs of Article 96“.
Finally, it should be noted that simultaneously with the anticipation of the entry into force of the reform, the legislator, through Article 8, Legislative Decree No. 198 of 12.29.2022, also ordered the extension of some emergency regulations (i.e., until 28.02.2023, the regulations concerning the release of executive copies of sentences and other provisions of the judicial authority in the form of an IT document and the obligation to use e-payments limited to the flat-rate advance envisaged for justice expenses).
On the other hand, the rules regulating the judge’s power to order the oath of the expert witness to be sworn in writing and those providing for written hearings before the Court of Cassation, unless one of the parties requests an oral hearing, have been extended until 30.06.23.
In conclusion, we will see…
v.spinelli@macchi-gangemi.com
a.buttarelli@macchi-gangemi.com
META: 390 MILLION EURO FINE AND BAN ON PERSONALIZED ADVERTISING WITHOUT CONSENT. WHAT CONSEQUENCES?
It is now all over the national and international headlines the news of the sanction imposed by the Irish privacy authority, on Meta for carrying out the personalization of advertisements on Facebook and Instagram, in execution of a contract, without obtaining the specific consent of the customer.
The Irish authority called the Data Protection Commission (DPC), in fact, as a result of two investigations conducted on the parent company and the other companies, found that several GDPR regulations (primarily Article 6) had been violated, imposing two separate fines for irregularities found, respectively, on Facebook (€210 million) and Instagram (€180 million).
The focal point of the decision concerns the DPC’s radical stance on the non-usability of the legal basis of the contract as a basis for the personalization of advertisements and behaviour-based advertising (the European Data Protection Board – EDPB had already expressed this view).
The investigation started from two 2018 complaints (one from Austria and one from Belgium). In fact, before the GDPR came into force, Meta relied on users’ consent, but after the introduction of the regulation it had shifted the focus to the “contractual” basis: users also had to agree to profiling for advertising purposes in order to access the service, according to its own terms and conditions.
Given the particularity of the case, multiple European authorities consulted each other and, being unable to take a common position, turned to the EDPB for an objective opinion on the violations alleged against Meta.
After the EDPB issued its opinion, and in line with that opinion, the Irish authority (DPC) made its final decisions last December 31 and ruled that Meta’s execution of the contract with the customer, in the absence of specific express consent, is not lawful and that the data processing carried out up to that point violates Article 6 of the GDPR.
Accordingly, the execution of the general terms and conditions of the contract in the absence of specific express consent cannot be considered a valid legal basis for the processing of personal data for the purpose of creating personalized promotional content. Instead, an “opt-in” mechanism is required, and thus the user’s consent, in a clear and transparent manner.
Meta is then obliged to comply with the decision within 3 months.
The company has announced its intention to challenge the declarations both from the standpoint of the decision and the quantum of the penalty, especially on the basis of regulatory uncertainty about the legal framework. According to Meta, in fact, companies find themselves having to interpret the regulation and national rules without an unambiguous view at the European level, with the risk of incurring penalties from individual national authorities.
This is a momentous decision that, if followed by other national authorities (as is likely, given the EDPB’s binding opinion), could completely upend the business model of Meta and other companies that have hitherto contractually based the processing of data for the purpose of personalizing advertisements.
This is certainly an issue on which other authorities will sooner or later rule, but one that risks making the European marketplace increasingly unattractive.
f.montanari@macchi-gangemi.com
l.laterza@macchi-gangemi.com
ITALIAN BUDGET LAW 2023. SPECIAL VOLUNTARY SETTLEMENT OF TAX PAID LATE (“RAVVEDIMENTO OPEROSO”): APPLICATION PROFILES AND TIMING.
Law No. 197 of 29 December 2022, the Italian Budget Law 2023, among the simplifying measures aimed at settling taxpayers’ positions, has introduced the so-called “special voluntary settlement” (article 1, paragraphs 174-178), a provision that taxpayers may use to rectify tax violation relating to regularly submitted – and not yet challenged – tax returns, benefiting from a 1/18 reduction in penalties.
The provision allows the taxpayer to regularise tax violation of correctly submitted tax returns (failure to file a tax return does not, therefore, fall within the scope of the institute), with the exception of those of formal nature or falling within the simplified definition of notifications of irregularities and due as a result of automated control of tax returns, referring to the fiscal year ending 31 December 2021 and previous fiscal years, by paying by 31 March 2023:
– tax;
– interest at the statutory rate;
– penalties, reduced to one eighteenth of the minimum.
In order to benefit from the facilitating measure, the necessary condition is that the violations have not been contested, as of the date of payment, by notices of liquidation, assessment or recovery, dispute and application of sanctions, including notices pursuant to article 36-ter, Presidential Decree No. 600/1973. Please note that violations notified by notices of assessment between the end of 2022 and 31 March 2023 and not challenged, although not falling within the scope of the special voluntary settlement, may still benefit from the regularisation of facilitated adhesion and definition referred to in the subsequent paragraphs of the abovementioned Italian Budget Law, with the reduction of penalties to one eighteenth.
Violations concerning the “emersion” of financial and capital assets established or held out of the territory of the Italian State are excluded from the scope of the tax benefit.
The payment of the amount by 31 March 2023, and the removal of irregularities or omissions formalise the regularisation. Payment may be made in a single instalment or in eight quarterly instalments of same amount, to be paid, respectively and in addition to the first instalment of 31 March 2023, by 30 June, 30 September, 20 December and 31 March of each year; interest on instalments is due at the rate of 2% per annum.
The total or partial failure to pay one of the instalments following the first one entails the forfeiture of the instalment facility and the registration of the amounts still due as well as of the penalty pursuant to Article 13 of Legislative Decree No. 471/ 1997, applied on the residual amount due as tax, and interest at the rate of 4%, with effect from 31 March 2023. In this case, the tax notice must be served, under penalty of forfeiture, by 31 December of the third year following the year in which the instalment was forfeited.
The Voluntary settlements already made on the date of entry into force of the Italian Budget Law 2023 will be deemed valid and it will not be possible to request the refund of the amounts already paid.
The rule refers to a provision of the Director of the Revenue Agency for the implementation of the institution.
g.sforzini@macchi-gangemi.com
d.michalopoulos@macchi-gangemi.com
UNILATERAL MODIFICATION OF THE ENERGY SUPPLY CONTRACT OR CONTRACT RENEWAL?
Changes to energy supply contracts are allowed, but under specific conditions only. With its decision of 22 December 2022, the Council of State clarifies the scope of application of Article 3-bis of the ‘Decree Aiuti bis’ (Law Decree No. 115/2022) following the joint public statement of ARERA-AGCM and the AGCM’s statement of October 2022.
The current international contingencies have fostered an exponential increase in energy prices as well as the emergence of a state of uncertainty among consumers and operators in the energy sector. In this context, the emergency caused by the surge in inflation due to the increase in the prices of energy supplies and the energy crisis led to the enactment of Law Decree No. 115/2022 (the so-called ‘Decree Aiuti bis’).
The Decree Aiuti bis extends certain support measures already in place in 2022 and, at the same time, introduces new urgent measures to counter the impact of rising energy supply costs.
Specifically, Article 3 of the Decree Aiuti bis introduces the suspension of unilateral changes to electricity and natural gas supply contracts by suppliers to their customers, providing:
– the suspension of the effectiveness of any contractual clause that allows the supplier to unilaterally modify the general terms and conditions of the contract relating to the definition of the price, even if to the counterparty is contractually recognized the right to withdrawal, and
– the ineffectiveness of the supplier’s notices given for the above purposes before the date of entry into force of the decree unless the contractual changes had already been effected on that date.
The purpose of the rule is thus to counter the high energy prices by means of the instruments of the suspension of unilateral changes and the ineffectiveness of notices (contemplated respectively by paragraphs 1 and 2 of the aforementioned rule), which prevent the exercise of the ius variandi of the supplier with regard to price determination, i.e. the supplier’s power to unilaterally determine prices.
The Decree Aiuti bis nevertheless leaves room for some doubts concerning several issues, including that concerning the scope of application of the suspension, notwithstanding the efforts to interpret art. 3. In particular, the literal wording of the provision does not clarify whether the suspension pursuant to Article 3 is intended to prevent only the unilateral modification of economic conditions that have not expired and not those that are already expired. Consumers and companies urged the supervisory authorities to intervene in the matter prompted by the need to obtain appropriate clarifications as to the overall framework of the rules and the scope of application of Article 3 of the Decree Aiuti bis.
In this context, the supervisory authorities (AGCM and ARERA), which, after having carried out some investigations – on 13 October 2022 (joint public statement AGCM – ARERA) – have contributed to clarify the nature and constraints of unilateral amendments to electricity and gas supply contracts, with the declared hope to ensure the protection of customers and the balance of the national energy system in this way. As it emerges from the interpretation of the joint public statement, the Article 3 of the Decree Aiuti bis is applicable in cases where, during the period of performance of the energy supply contract, the seller decides to avail itself for a justified reason of a contractual clause granting it the power to unilaterally vary the contractual terms and conditions relating to the price (and therefore not permitted).
On the other hand, automatic changes in economic conditions are a different matter already agreed upon at the time of the conclusion of the energy supply contract. The automatic evolutions represent contractual conditions on which the parties have already expressed their consent, they do not have the character of unilaterality and for them the Decree Aiuti bis is not applicable.
However, the authorities’ statement did not clear the field of critical interpretation issues. Both companies and consumers have criticized joint public statement. This is because, on the one side, the energy operators are complaining that they are forced to provide the service below market value, without any compensation being provided for under the European Regulation on high energy prices (EU Regulation 2022/1854); on the other side, consumers could suffer the exercise of possible termination actions, remedies that would seem to paralyze the peculiar function of Article 3 of the Decree Aiuti bis.
As anticipated, the most sensitive cases concerned customers who had expiring energy supply contracts. It was precisely with reference to such cases that many consumers turned to the AGCM, which, starting last October 2022, had ordered some companies to extend all expiring contracts until April 2023 (the deadline set out in the Decree Aiuti bis, relating to the suspension of unilateral amendments to energy supply contracts). This Council of State in its decision of 22 December 2022 – partially corrected the AGCM’s decision to suspend increases in energy supply. According to the Council of State, Article 3 of the Decree Aiuti bis is also not applicable to fixed-term contracts or contracts that provide for a predetermined expiry date of the economic conditions on a date prior to 30 April 2023, because in this case it would be a contractual renewal freely agreed upon by the parties. In other words, the changes are unlawful only if the contract is not due to expire; if the contract provides for an expiry date, it is lawful for energy suppliers to update the tariffs upon renewal. In this perspective, it should be pointed out a distinction must be made between contract renewals and unilateral changes. In line with the Council of State’s approach, it would be excessively burdensome for suppliers, as well as illogical, to extend the scope of application of Article 3 of the Law Decree to the cases of renewals, which, as such, do not represent hypotheses of unilateral changes, given that they lead into activities aimed at reaching a new negotiating agreement.
There is no doubt that, in the light of the context described above and with a 2023 that still promises to be a high risk of high energy prices and inflation, the measures that the government is preparing to take on the subject of energy price rises from now to the following times have great relevance.
s.dellatti@macchi-gangemi.com
g.pappacena@macchi-gangemi.com
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