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Freedom of establishment: a company may transfer its registered office in order to benefit from a favourable legislation

Freedom of establishment is the right upon which a company formed in accordance with the legislation of a Member State can convert itself into a company governed by the law of another Member State, provided that the conditions laid down by the legislation of the latter Member State are satisfied. On this issue, with Judgment of 25th October 2017 in the case C-106/16, the European Court ...

A promotional message may have features of creativity

Italian Law no. 633/1941 offers protection to creative works pertaining to literature, music, art, architecture, theatre, cinematography (so-called copyright). With Judgment no. 24062 of 12th October 2017, the Italian Supreme Court has confirmed that a promotional message may contain characteristics of creativity. Such message may then be considered as one of those works which are prote...

Drag-along clauses may be written in the statutes with the consent of the majority

A drag-along clause enables a shareholder (usually, a majority shareholder) who wants to sell his own shares, to force other shareholders (usually minority shareholders) to sell theirs. Such clause is useful where the potential buyer is available to invest in a company provided that he obtains the whole control of the company itself. A drag-along provision is usually written in the stat...

General meetings in audio or videoconference also without any appropriate provision in the statutes

Article 2370, paragraph 4, of the Italian Civil Code, states that the statutes may allow the intervention in a general meeting by means of telecommunication devices. In its recent opinion no. H.B.29, the association of notaries of north-eastern Italy has explained that the provision at issue aims at helping direct participation in general meetings as well as permitting any participant t...

Approval of the Bill delegating the Government to reform insolvency proceedings

On 12th October 2017, the Bill delegating the Government to reform the legislation on insolvency procedures has become law. Among the new provisions are: (i) the disappearance of the word “fallimento” (bankruptcy), now to be called “liquidazione giudiziale” (judicial liquidation); (ii) the possibility for a debtor to start an alert procedure, so as to reach, with the assistance ...

Financial leasing contracts are now regulated by Law no. 124/2017

Financial leasing contracts, which were not regulated by any law yet, have recently been the object of a legislative intervention. Article 1, paragraph 136, of Law no. 124/2017 (so-called “Law on market and competition”) provides that financial leasing contracts are those by which a bank or a financial intermediary (…) engages to purchase a good or to have a good made according to...

For the formation of innovative start-ups, the intervention of a notary is not compulsory

Ministerial Decree of 17th February 2016 provides that the formation of innovative start-ups may take place without the intervention of a notary, simply by means of a digitally-signed document. On this issue, the Consiglio Nazionale del Notariato (Italian national council of notaries) has filed an appeal with the TAR Lazio, complaining that notaries would be damaged by that provision....

Warranties for consumers do not apply when the sale is ancillary to the supply of services

Article 3 of European Directive no. 1999/44 on the sale of consumer goods and associated guarantees, provides that “the seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered”. A German Court had asked the European Court of Justice to provide some clarification on certain aspects of that Directive, in a case when ...

Exclusion from a procurement procedure when a previous exclusion is not declared

Failing to declare the exclusion from a previous public procurement procedure for “fiscal (ir)regularities”, determines the exclusion from a procedure, pursuant to art. 80, paragraph 5, Legislative Decree no. 50/2016. On this point, with Judgment no. 4532 of 27th September 2017, the TAR Campania has explained that the economic operator at issue should have mentioned that previous ex...

New Articles’ clauses cannot be applied to former partners

According to the Italian jurisprudence, termination of a member of a partnership (società di persone) becomes effective as soon as the partnership receives such communication, even before that the leaving partner gets the payment of his own share. On this issue, with Order no. 21036 of 11th September 2017, the Court of Cassation has explained that events and changes occurred in a partn...

The “ne bis in idem” principle does not apply where convictions are about different acts

The application of the “ne bis in idem” principle requires the identity of illegal acts or facts, that is the identity of all their elements. With Judgment no. 42834 of 19th September 2017, the Italian Court of Cassation has denied any violation of the “ne bis in idem” principle in a case where two convictions for bankruptcy fraud, involving the misappropriatio...

Public Procurements: replacement of an auxiliary undertaking is not allowed

Art. 49 of the old Italian Public Procurement Code (Legislative Decree no. 163/2006) provides that “the tenderer (…) may fulfil the requirements relating to possession of economic, financial, technical and organizational capacity, or possession of a SOA (Certification Body) certificate, by relying on the capacity of another entity or the SOA certificate of another entity”. ...