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The assignment of professional advice may be proved also by means of a presumption

According to article 1703 of the Italian Civil Code, the contract of “mandato” may be stipulated in any form and entails the creation of specific obligations upon each contracting party. Article 1709 provides that its execution by a professional is not free, unless otherwise agreed. With regard to the assignment of a task to a professional, the jurisprudence is of the opinion that t...

The Decree on contract notices has been published in the Official Gazette

The Decree by the Ministry of Transport of 2nd December 2016 has been published in the Official Gazette no. 20 of last 25th January, with retroactive efficacy to 1st January 2017. In accordance with article 73, paragraph 4, of Legislative Decree no. 50/2016, the said Decree defines the general directions for publication of invitations and contract notices, so as to guarantee the certainty of th...

The transfer of a part of a business requires that the part transferred be an autonomous economic entity

According to article 2112 of the Italian Civil Code, on the safeguard of employees’ rights in case of transfer of a business or part of a business, such transfer includes any transaction that, as a consequence of a legal transfer or a merger, entails a change in the ownership of an organized economic activity or of a functionally autonomous part of that activity.  With judgment no. 1...

European account preservation order: facilitated cross-border debt recovery in civil and commercial matters

European Regulation no. 655/2014 of 15th May 2014 establishes a procedure by which creditors may apply to obtain a preservation order on bank accounts of the debtor, so as to facilitate the cross-border debt recovery in civil and commercial matters. Such procedure, applicable since 18th January, allows, in cross-border cases, for the preservation, in an efficient and speedy way, of fu...

Directive on infringements of the competition law soon to be transposed

The principle of free competition of Articles 101 and 102 of the Treaty on the Functioning of the European Union is an essential element of the European integration, in that it aims at allowing undertakings to compete under equal conditions in the internal markets of Member States. For an effective application of such principle, Directive no. 104/2014 on “actions for damages under...

If the attendance sheet is not attached to the minutes, the decision of the assembly may be annulled

Article 2375 of the Italian Civil Code, as amended by Article 1 of Decreto Legislativo no. 6 of 17th January 2003, is about the minutes of decisions taken by the assembly of a joint-stock company. It requires that the names of the participants in the assembly and the outcome of votes result from the minutes or from an attachment to them, thereby allowing the identification of approving, abstai...

The assignment of a task to a professional cannot be inferred from “facta concludentia” made by the parties

A contract regulated by articles 2222 et seq. of the Italian Civil Code (so-called “contratto d’opera”) is characterized by the execution of work or the provision of a service made by an independent person, in exchange for a payment. According to the prevailing jurisprudence, a client of a professional is liable for the payment of the service provided but is not necessarily the be...

As from 1st January 2017, a tax settlement in an arrangement with creditors will apply also to VAT debts

The Decreto Legge no. 35 of 14th March 2005 has partially amended the procedure for an arrangement with creditors (so-called “concordato preventivo”), provided for by articles 160 et seq. of the Law on Bankruptcy, and has defined that arrangement as an instrument by which the crisis of a business may be solved through non-judicial agreements regarding the restructuring of the business at...

New judgment of the European Court of Justice on retention of personal data, waiting for the new European Regulation

Directive 2009/136/EC has amended Directive 2002/58/EC, on the processing of personal data and the protection of privacy in the electronic communications sector. Such Directive prohibits a general and indiscriminate retention of traffic and location data. With judgment of 21st December 2016 in cases C-203/15 and C-698/15, the European Court of Justice has explained that excepti...

As from 2nd January 2017, a new form for voluntary disclosure will be available online

The voluntary disclosure is an instrument, provided for by Decree-Law no. 193 of 22nd October 2016, as amended by Act no. 225 of 1stDecember 2016, for the fight against tax evasion. Such form allows tax-payers who illegally own assets abroad (or even in Italy, without declaring them) to regularize their position, by self-declaring their assets to the competent authorities. Tax-payers w...

The procedure of assessment of the impact on environment (so-called V.I.A.) is not compulsory for plans concerning small areas

The V.I.A. is an administrative procedure aiming at describing and assessing the impact on the environment of a plan or programme, subject to approval or authorization from a public authority. Such procedure is provided for by art. 6, Decree-Law no. 152 of 3rd April 2006. This Decree-Law has complied with Directive 2001/42/EC (so-called VAS Directive, where VAS stands for “strategic e...

The division of contracts into lots may be derogated in order to guarantee rationalization and control of costs

Article 51 of the new Italian Public Procurement Code, Decree-Law no. 50 of 2016, provides that, in order to help small and medium enterprises, contracting authorities have to divide contracts into lots. Nevertheless, art. 51 also states that contracting authorities may avoid dividing contracts into lots by giving a proper motivation, which has to be indicated in the contract notice or ...