Studio Legale Pavan Website

The mark “La Mafia se sienta a la mesa” is contrary to public policy

With Decision of 3rd March 2016, the European Union Intellectual Property Office (EUIPO), upon an application by the Italian Republic, declared invalid, pursuant to Article 7 (1)(f) of the EU Regulation no. 2017/1001, the mark “La Mafia se sienta a la mesa”, it being contrary to public policy. By Judgment of 15th March 2018, the EU General Court  has observed that the contested mar...

“Mixed” composition: non-application of payment of 20% on behalf of unsecured creditors

A composition is called “mixed” (concordato “misto”) when the resources for the satisfaction of creditors come partly from the prosecution of the business and partly from the liquidation of non-functional assets. The Court of Como, with Judgment of 27th February 2018, has stated that as to the “mixed” composition which was under its scrutiny, the continuation of the business...

The right to a commission is not excluded if a deal is concluded by third parties

According to article 1755 of the Italian Civil Code, an agent has the right to receive a commission from each party when a deal is concluded as an effect of his intervention. The Court of Cassation, with Judgment no. 6552 of 16th March 2018, has explained that the right to a commission is not excluded when a deal is concluded by parties different from those to whom that very deal was or...

Public procurements: the length of the operations does not vitiate the procedure

The principle of continuity of operations in a public procedure can be derogated when particular situations hinder the completion of the operations in a single day, provided that the secrecy and the integrity of tenders is guaranteed. With Judgment no. 1335 of 5th March 2018, the “Consiglio di Stato” has stated that the length of the operations in a public procedure, as well as an i...

The special tenuousness of a fact does not exclude the liability of a legal person

Article 131-bis of the Italian Criminal Code provides that, for some specific crimes, punishment is excluded when the damage caused is particularly tenuous. With Judgment no. 9072 of 28th February 2018, the Court of Cassation has observed that the application of the special tenuousness of a fact on behalf of the natural person who has committed a crime, does not automatically exclude th...

A partially successful claimant cannot be ordered to pay the defendant’s legal costs

Article 92, paragraph 2, of the Italian Civil Procedure Code, provides that, when a claim is only partially successful, a court can partially or fully balance the costs of legal representation between the parties. With regard to this, the Court of Cassation, with Order no. 1572 of 23rd January 2018, has stated that a claimant who was partially successful on his claim or fully successful...

The “Responsabile unico del procedimento” can hold the office of President of the jury

A participant in a public procurement procedure complained about the fact that the President of the jury, who was the legal representative of the contracting authority, also held the office of “Responsabile unico del procedimento”. With Judgment no. 443 of 15th February 2018, the TAR Lombardia has observed that there are no provisions stating that the legal representative of the con...

Copyright: creative nature and artistic value of industrial designs

According to article 2, no. 10), of Law no. 633/1941, industrial designs are protected by the law on copyright when they have a creative nature and artistic value. The Court of Cassation, with Order no. 658 of 12th January 2018, has explained that the artistic value of a product intended for serial reproduction can be inferred from its presence in exhibitions and museums, the award of p...

Wrongful dismissal: the employee of a company gone bankrupt is entitled to compensation

The Court of Cassation, with Judgment no. 522 of 11th January 2018, has stated that, after a company has gone bankrupt, an employee’s contract of employment is suspended until the “Curatore” decides whether it continues or is terminated. If the contract is finally terminated, the “Curatore” is nevertheless required to strictly abide by the provisions on the protection of worke...

An Authority annulling the acts of a procedure is subjected to pre-contractual liability

With Judgment no. 680 of 2nd February 2018, the Consiglio di Stato has stated that an Authority annulling the acts by means of which it had previously called for a public procedure, is subjected to pre-contractual liability. The Consiglio di Stato has explained the, in such a case, the liability of the Authority exists  independently of the assessment on the unlawfulness of the annulme...

Unfair contract terms: when approved in writing, they are valid even if not legible

The Court of Cassation, with Order no. 3307 of 12th February 2018, has stated that unfair contract terms, when specifically approved in writing, are valid even if scarcely readable. In the case at issue, a phone service contract, which was concluded through a pre-formulated standard contract, contained an almost unreadable clause establishing a derogation from the general rule on territ...

Whistleblowing: the new application of the ANAC for the report of illegal acts is operative

The recent Act n. 179/2017 on the so-called “whistleblowing” applies on behalf of employees of the public administration, as well as on behalf of workers of the private sector. It  protects those employees who report illegal acts that they have come to know because of their job position or of their employment relationship, by preventing that they can be fired or subjected to other ...