News

PERFORMANCE OF THE AGREEMENT AND COVID-19 HEALTH EMERGENCY

The civil Supreme Court, by Report No. 56 of July 8, 2020, made available some important clarifications concerning the performance of the agreements affected by the Covid-19 health emergency.

ADMINISTRATIVE LIABILITY OF CORPORATIONS: OUTSOURCED LABOUR AND FRAUD

By decision No. 23921 of August 12, 2020, the Supreme Court confirmed the liability for fraud, pursuant to  art. 24 of the Legislative Decree 231/2001 (administrative liability of corporations), of the company using outsourced workers formally employed by another company, established to the sole purpose of performing the outsourcing agreement.

LEASE AND EXCEPTION OF NON-COMPLIANCE

The Supreme Court, by decision No. 23384 of June 22, 2020, stated that the tenant, pursuant to Art. 1460 of the Civil Code, can suspend the payment of the rent in case the lessor does not comply with her/his own obligations.

TRANSFER OF BUSINESS AND CLEAN-UP LIABILITY

The Supreme Administrative Court (“Consiglio di Stato”) by decision No. 2195 of April 1, 2020 stated how to identify the liable party in case of transfer of business for the pollution caused in the past by the seller.

BURDEN OF PROOF CONCERNING DEFECTs OF SOLD GOODs

By decision No. 11748 of May 3, 2019, the Civil Supreme Court (United Sections) stated that the burden of proof concerning the defects of the sold goods is on the buyer and not on the seller. Such decision is relevant because it settles a dispute in case law with reference to such matter.

"EIA" PLANTS: THE MINISTERIAL DECREE No. 104/2019 ON THE BASELINE REPORT

By the Ministerial Decree No. 104 of April 15, 2019, the Environmental Ministry issued a new regulation for the drafting of the baseline report concerning plants subject to the environmental integrated authorization (“EIA”). The new regulation replaces the previous one (Ministerial Decree No. 272/2014) that was cancelled by the decision No. 11452/2017 of the Regional Administrative Court of Lazio (“TAR Lazio”).

MERGERS AND CLEAN-UP LIABILITY

By decision No. 10 of October 22, 2019, the Supreme Administrative Court (“Consiglio di Stato”) stated that in case of mergers the merging company is liable for the clean-up of the polluted site, even if it is not directly liable for that pollution, caused in the past by the merged company and before the entry into force of the law provisions concerning the clean-up procedure (i.e. Decree No. 22/1997 – “Ronchi Decree”). 

JURISDICTION AND PARENTAL RESPONSIBILITY

By decision No. 24608 of October 2, 2019, the Civil Supreme Court (United Sections) stated that in matters relating to maintenance obligations or parental responsibility, jurisdiction shall lie with the court for the place where the child is habitually resident, even when the related questions are proposed in a separation or divorce trial introduced in Italy and the child is resident in another Member State.

CONTRACTS AND FISCAL DECREE No. 124/2019

As a result of the new fiscal decree (Decree No. 124/2019), in contract agreements customers and contractors have new obligations. In particular, the contractors have to pay the withholding taxes for the employers directly employed in performing the work or services object of the contract and give the customers the payment receipt.

EXTRAORDINARY COMPANY OPERATIONS AND REVOCATION ACTION

By decision No. 31654 of December 4, 2019, the Civil Supreme Court stated that creditors may start a revocation action according to art. 2901 of the Italian Civil Code against extraordinary company operations in case they affect their rights.

PERFORMANCE OF THE AGREEMENT AND COVID-19 HEALTH EMERGENCY

The civil Supreme Court, by Report No. 56 of July 8, 2020, made available some important clarifications concerning the performance of the agreements affected by the Covid-19 health emergency.
 

In particular, the Supreme Court stated that each party has a duty to open a negotiation with the other aimed at rebalancing the agreement obligations according to Civil Code good-faith general principle. The Supreme Court also stated that in case a party does not cooperate with the other, the interested party can ask the Judge for a decision on a possible agreement rebalancing

ADMINISTRATIVE LIABILITY OF CORPORATIONS: OUTSOURCED LABOUR AND FRAUD

By decision No. 23921 of August 12, 2020, the Supreme Court confirmed the liability for fraud, pursuant to  art. 24 of the Legislative Decree 231/2001 (administrative liability of corporations), of the company using outsourced workers formally employed by another company, established to the sole purpose of performing the outsourcing agreement.

LEASE AND EXCEPTION OF NON-COMPLIANCE

The Supreme Court, by decision No. 23384 of June 22, 2020, stated that the tenant, pursuant to Art. 1460 of the Civil Code, can suspend the payment of the rent in case the lessor does not comply with her/his own obligations.

TRANSFER OF BUSINESS AND CLEAN-UP LIABILITY

The Supreme Administrative Court (“Consiglio di Stato”) by decision No. 2195 of April 1, 2020 stated how to identify the liable party in case of transfer of business for the pollution caused in the past by the seller.
 

In particular, it stated the conditions under which the seller is liable for the polluting activities performed in the past, even when the clean-up applicable law provisions came into force after the transfer of business.

BURDEN OF PROOF CONCERNING DEFECTS OF SOLD GOODS

By decision No. 11748 of May 3, 2019, the Civil Supreme Court (United Sections) stated that the burden of proof concerning the defects of the sold goods is on the buyer and not on the seller. Such decision is relevant because it settles a dispute in case law with reference to such matter.

"EIA" PLANTS: THE THE MINISTERIAL DECREE No. 104/2019 ON THE BASELINE REPORT

By the Ministerial Decree No. 104 of April 15, 2019, the Environmental Ministry issued a new regulation for the drafting of the baseline report concerning plants subject to the environmental integrated authorization (“EIA”). The new regulation replaces the previous one (Ministerial Decree No. 272/2014) that was cancelled by the decision No. 11452/2017 of the Regional Administrative Court of Lazio (“TAR Lazio”).

MERGERS AND CLEAN-UP LIABILITY

By decision No. 10 of October 22, 2019, the Supreme Administrative Court (“Consiglio di Stato”) stated that in case of mergers the merging company is liable for the clean-up of the polluted site, even if it is not directly liable for that pollution, caused in the past by the merged company and before the entry into force of the law provisions concerning the clean-up procedure (i.e. Decree No. 22/1997 – “Ronchi Decree”). 

JURISDICTION AND PARENTAL RESPONSIBILITY

By decision No. 24608 of October 2, 2019, the Civil Supreme Court (United Sections) stated that in matters relating to maintenance obligations or parental responsibility, jurisdiction shall lie with the court for the place where the child is habitually resident, even when the related questions are proposed in a separation or divorce trial introduced in Italy and the child is resident in another Member State.

CONTRACTS AND FISCAL DECREE No. 124/2019

As a result of the new fiscal decree (Decree No. 124/2019), in contract agreements customers and contractors have new obligations. In particular, the contractors have to pay the withholding taxes for the employers directly employed in performing the work or services object of the contract and give the customers the payment receipt.

EXTRAORDINARY COMPANY OPERATIONS AND REVOCATION ACTION

By decision No. 31654 of December 4, 2019, the Civil Supreme Court stated that creditors may start a revocation action according to art. 2901 of the Italian Civil Code against extraordinary company operations in case they affect their rights.

 
 
 
 
 
 
 
 
 
 

© 2019 by Studio legale Nardi e Roncelli

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