The Court of Cassation recently addressed both whether disputes concerning the withdrawal of a shareholder from a company may be submitted to arbitration and the validity of an arbitration clause regarding a specific dispute between a shareholder and a company where the clause does not assign the right to appoint the arbitrator to a third party. The court affirmed that, as a shareholder's right of withdrawal concerns economic disposable rights, disputes in this regard may be submitted to arbitration.
The United Sections of the Court of Cassation recently addressed the matter of jurisdictional preventive regulations and seized the opportunity to reaffirm the jurisdictional nature of arbitration proceedings. The court affirmed the principle according to which an international arbitration clause can invalidate the jurisdiction of the ordinary Italian courts regarding a notice of objection against a preliminary injunction.
The Court of Cassation recently ruled on the conferment of a company dispute to the jurisdiction of an arbitral tribunal based on the arbitration clause contained in the company's articles of association. The tribunal had accepted the exception raised by the counterparties concerning its lack of jurisdiction, but the claimant appealed this decision before the Court of Cassation.
A recent Supreme Court of Cassation decision addressed the invalidity of arbitration clauses that do not agree with Decree-Law 5/2003, which concerns judicial procedures for corporate matters. The court found that in arbitration proceedings concerning disputes between business partners, the clause referring to the appointment of arbitrators assigned to the parties will be void even if stipulated before Decree-Law 5/2003 came into force.
The United Sections of the Supreme Court of Cassation recently addressed a case concerning a cooperative that had been sued before an arbitral tribunal by three partners who alleged that their exclusion, which the company had approved, had been illegitimate. The court found that the 30-day forfeiture term to appeal a decision excluding a partner of a cooperative, as provided for by the Civil Code, is applicable even in the presence of an arbitration clause in the cooperative's articles of association.
The Rome Division of the Tax Commission recently ordered the full refund of debit notes issued by the Lazio region to a foreign carrier for payment of the tax on aircraft noise pursuant to Regional Law 2/2013. The Tax Commission stated that the carrier had not breached EU Directive 2002/30/EC. Accordingly, it cancelled the debit notes issued by the Lazio region to the foreign carrier and ordered a complete refund of the tax paid by the carrier under the tax on aircraft noise.
The most recent Italian case law has upheld the European Court of Justice's interpretation of EU Regulation 261/2004 in Wallentin-Hermann and Van der Lans by qualifying a hidden manufacturing defect as an 'extraordinary circumstance' under the meaning of Article 5(3) of the regulation and rejecting passenger claims for compensation under Article 7 of the regulation.
In a recent decree the Ministry for the Economic Development started the extraordinary administration procedure for Alitalia pursuant to Law 39/2004 and appointed commissioners to lead the company throughout the procedure. The main purpose of the extraordinary administration is to implement a recovery plan meant to preserve employment levels through the financial restructuring of the company, the sale of the business as a whole or the sale of the business, assets and contracts part by part.
The Competition Authority has often fined airlines for imposing limits on round-trip tickets which force passengers to take flights in the order listed on the original ticket (ie, the so-called 'no-show rule'). The Council of State recently found this rule to be lawful. However, to protect consumer rights, the rule must strike a balance between the commercial needs of airlines and consumer rights. This decision confirms the increased focus on consumer rights without neglecting the commercial needs of airlines.
Italian courts are facing an increase in judicial claims by debt collection companies for denied boarding and the cancellation and delay of flights pursuant to EU Regulation 261/2004. The claims are based on the assignment of passenger rights to compensation under the regulation. The increase in judicial claims has led to jurisdictional and legal entitlement issues which have been resolved by different Italian court approaches.
Virtual currencies represent uncharted territory in Italy for various reasons, and the current rules and restrictions will likely need structural adjustments to make them work. The fact that the issuer of virtual currencies for investment purposes is in most cases based in a foreign country (often outside the European Union) could make the scope of current exemptions under the Securities Act too broad.
The Bank of Italy recently commenced a public consultation on the proposed amendments to Regulation 285/2013 on remuneration policies in the banking sector, the main aim of which is to align the regulation with the European Banking Authority Guidelines of December 2015 and ensure compliance with Articles 74(3) and 75(2) of the EU Capital Requirements Directive. The consultation will end on May 14 2018.
With the Competition Law's recent entry into force, the legislature has finally established a clear legal framework by defining the concept of a 'financial lease' and the consequences for banks (or leasing companies) and clients following a breach of contract. These provisions make financial leases a more transparent tool with the aim of boosting their appeal and increasing investment by Italian companies, thus fostering economic growth.
The Italian courts, as well as scholars and legal practitioners, have debated the concept of supervening usury for many years. Until recently, it was unclear whether interest stipulated below the usury threshold at the time of contract, but exceeding such threshold at the time of payment, was usurious. The Supreme Court finally addressed this issue in a recent decision, which ruled out supervening usury entirely.
The Tax Administration can now introduce unilateral corresponding downward adjustments to eliminate double taxation where a foreign tax authority makes a primary adjustment as a result of applying the arm's-length principle to transactions involving associated enterprises in a different tax jurisdiction. This new administrative procedure aims to accelerate the resolution of double taxation deriving from transfer pricing adjustments under mutual agreement procedures.
The new principles introduced by Actions 8 to 10 of the Base Erosion and Profit Shifting project have been reflected in Italy through Decree-Law 50/2017's amendments to Article 110(7) of the Income Tax Code. The new article includes a specific reference to the arm's-length principle and provides for implementing provisions to be issued by the Ministry of Finance to align with international best practices.
The Budget Law 2018 introduced, among other things, amendments to the tax regime concerning dividends from non-resident companies located in low-tax jurisdictions (ie, blacklisted companies). 'Blacklisted companies' are entities resident or located in jurisdictions other than EU or European Economic Area member states, whose ordinary or special tax regime grants a nominal tax rate that is 50% lower than the Italian one.
The recently approved Budget Law has harmonised the taxation of dividends and capital gains earned by non-business individuals on substantial and non-substantial participation held in Italian and foreign companies, among other things. Companies and partnerships will be unaffected by these changes, as the distinction between substantial and non-substantial participation is irrelevant.
The notional interest deduction (NID) regime has been in effect since the 2011 fiscal year. Under this regime, Italian resident companies and permanent establishments of non-resident companies may deduct notional interest from their corporate income taxable base. The NID is calculated according to the equity increase (ie, new equity rate) from the end of the 2010 fiscal year, multiplied by a rate determined annually.
The Supreme Court recently found that a dismissal for just cause is unlawful if the employer uses an investigator to monitor an employee's job performance. The ban on the use of investigative agencies also applies to activities carried out by employees off their employer's premises and renders investigative reports unusable unless they concern behaviour that suggests criminal activity.
The Supreme Court recently found that in the case of a dismissal of an executive due to cost reductions, the main requirement is that the company's reorganisation process must be genuine. Employers are not required to prove that they are in economic difficulty. Rather, it is enough for them to demonstrate that the employee's job will no longer exist due to organisational changes.
The Supreme Court recently stated that an employer that installs a camera in its workplace to monitor an employee's activity can be found guilty of a crime under Decree-Law 196/03, even if the camera was installed to protect goods and property. The court found that the dignity and privacy of the employee in question were more worthy of protection than the economic value of corporate goods and property and that reforms in this regard introduced by the Jobs Act were inapplicable.
The Supreme Court recently found that an employee who notifies the judicial authorities of facts relating to his or her employer which constitute evidence of criminal activity cannot be dismissed for just cause. As regards the disciplinary liability of whistleblowing employees, it is insufficient for a complaint to be unfounded, as this does not prove that the complaint was slanderous.
An employee recently challenged her dismissal, claiming that she had been employed by a cooperative as a cleaner in a healthcare structure under a contract between the two parties. The healthcare structure was subsequently incorporated into another company, which decided to internalise the services performed by the cooperative and terminate the contract between the two parties. The Court of Milan declared the dismissal to be unlawful on the grounds that a transfer of undertaking had occurred.