The use of CEM in the context of third-party enforcement
[:en]As from 1 January, it is mandatory for the enforcement creditor to indicate the certified mail address in the attachment deed.
Starting from 1 January 2013apply to foreclosures against third parties The amendments to the Code of Civil Procedure introduced by Article 1, Paragraph 20 of Law No. 228 of 24 December 2012 in Official Gazette No. 302 of 29 December 2012.
Specifically, the reform provides that the claimant creditor must indicate the certified mail address(a.k.a. PEC), in the attachment deed (Art. 543 of the Code of Civil Procedure) and, moreover, the indication that the third-party creditor may also make the declaration pursuant to Art. 547 of the Code of Civil Procedure by means of PEC.
It should be recalled, briefly, that already with the amendments adopted by Law 52/2006, the third party was allowed, in cases of non-employment claims, to make the declaration also by registered mail. With the reform, therefore, the third party may decide to make said declaration by certified mail, thus avoiding costs and complications.
It is perhaps worth emphasising that the garnishee third partycalled upon to declare, if in possession of things of the enforceable debtor or if it is owed money by the latter, it does not assume the capacity of a party in the enforcement proceedings, whereas, in the event of a failed, negative or contested declaration, it becomes a defendant in any action to be brought to ascertain its obligation towards the debtor. The legislature also amended arts. 548 and 549 of the Code of Civil Procedure. It is stated in the new text of Art. 548 of the Code of Civil Procedure that, in the case of work credits (545 para. 3 and 4 CCP), the third party's failure to make a statement or to appear at the hearing set by the creditor is equivalent to non-contestation of the claim. Indeed, for claims other than labour claims, the new paragraph 2 of Section 548 of the Code of Civil Procedure provides that if the aggrieved party declares that it has not received any statement from the third party and, in addition, the third party does not appear at the hearing set by the aggrieved party, the court shall fix a new hearing by order, to be notified to the third party; if the third party does not appear at this second hearing either, the claim is considered uncontested. Finally, the new Section 549 of the Code of Civil Procedure provides that if objections to the third party's statement arise, they are resolved by the court by order based on appropriate findings. The order is, in the event, contestable pursuant to Art. 617 Code of Civil Procedure.
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[:it]The denied transport of disabled persons. The Marche Regional Administrative Court recognises the moral damage[:]
[:it]The Marche Regional Administrative Court recognised the moral damage to the family of a disabled girl who had been denied the school transport service.
On 11.1.2013, the TAR Marche, with the Judgment No. 32/2013on the subject of existential damage, clarifying certain aspects relating to the configurability and quantification of damage in the case of denied transport of disabled personby the P.A.
The present case, indeed, saw a handicapped girl, which was deniedfor a certain period of time, the school transport service by the Municipality of Cartoceto.
The Regional Administrative Court (TAR) upheld the family's appeal against the municipality, which had not only failed to act on the parents' requests, but had only maintained an unjustified silence.
Specifically, the TAR notes that the damage suffered by the family was, in fact, derived from the unjustified delay with which the municipality took action in order to guarantee the operation of the service to the disabled person. The compensation due under Article 2-bis of Law No 241/1990 took the form of 'apparatus fault' dhe municipality.
Regarding, on the other hand, the existence of a nexus of causality between the inefficiency and the damage to family membersthe Judge recognised a prejudice of a moral and psychological nature, caused to the parent of a disabled child, who is denied a legally required care service solely for bureaucratic reasons, the family itself having to make up for the inefficiency.
Lastly, the Regional Administrative Court rejected the plaintiff's claims for compensation for existential damage, given the brevity and transience of the damage caused and the absence of any evidence of a deterioration in school performance due to repeated absences.
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Evading entrepreneur acquitted by court: the P.A. had not paid him.
[:it]For the Milanese Gip if the PA does not pay its debts to suppliers, it cannot claim that they are convicted of evasion.
Can an entrepreneur who evades taxes be considered guilty if the state does not pay his debts? This question was answered by a recent ruling of the Court of Milanwhich found itself deciding on a case of strong socio-economic interest. Specifically, the managing director of a Milanese company, Sintea Plustek of Assago, had been supplying three ASLs and a hospital in Campania since 2005 with products for a total amount of EUR 1.7 million. However, these supplies were not paid by the PA. Despite the default from the PA, the company still owed the tax authorities approximately EUR 180,000 in VAT for invoices issued. For this reason, criminal proceedings were initiated against the company's legal representative for tax evasion.
The Milan Judge, Claudio Castelli, decided the acquittal of the defendant since these, as stated in the grounds of the judgment, 'was forced not to pay by an omissive and dilatory behaviour on the part of public bodies that should have paid. "
This judgment is of particular interest since the Court wanted to protect not so much the right of the individual entrepreneur, but of a (now large) category of Italian companies often reduced to collapse due to state failures. It is recalled, most recently, a similar case involving the legal representative of the recovery community for drug addicts 'Saman'. In the case in question, the community boasted, in 2009, receivables from the Asl of two and a half million euro, and debts to the tax authorities of one million 750 thousand euro. The Gip had at the time acquitted the defendant on the grounds that the non-payment to the Treasury was to be considered a 'case of force majeure', as no malicious intent on the part of the administrator could be found.
Lastly, it is important to emphasise that the acquittals in the two criminal trials do not disregard the companies' obligation to pay the taxes due, the amount of which had been quantified in the parallel tax proceedings.
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[:en]CJEU: cancelled flight? Obligation to assist passengers.
[:en]The Court of Justicewith the judgment of 31 January 2013 in Case C-12/11, expresses itself once again on the issue of compensation for damage caused by delays and inconveniences to airline flights.
It is recalled, briefly, that with the Judgment of 23 October 2012, No. 629/10the Court held that, in the case of a passenger disembarking with a delay of three hours after the scheduled timethe parameters of damages dictated by EC Regulation No. 261/2004 apply. flat-rate compensation of between 250 and 600 eurosin the event of flight cancellation.
The judgment of 23 October also specified that compensation cannot be claimed if the air carrier proves that the delay was caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken, i.e. circumstances beyond the air carrier's actual control.
In the judgment under review, the Court of Justice specifies on this point that, even in the event of force majeure, companies are not exempt from theobligation to provide assistance to stranded passengers. Therefore, even if the flight is cancelled due to exceptional circumstances such as the closure of the airspace - in this case the eruption of the Icelandic volcano Eyjafjallajökull - the carrier is still obliged to assist passengers without any time or money limitations by providing them with accommodation, meals and refreshments.
Moreover, the Court emphasises that, when the air carrier has not fulfilled its obligation to provide assistance to the passenger, the latter may obtain, only the reimbursement of such sums as are necessary, appropriate and reasonable.
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Late Disciplinary Notice? Reintegration of the worker.
[:en]The Court of Cassation, with the recent Judgment No. 1693 of 24.1.2013 affirmed a rather relevant principle of law in the field of labour law. Specifically, it stated that in the case of disciplinary dismissal for just causeinfringements must be contested by the employer in the immediacyof their commission.
La failure to contest was, therefore, considered by the Supreme Court as a "tolerated behaviour'. Indeed, the aforementioned Article 7 of the Workers' Statute explicitly states that: "the employer may not take any disciplinary measure against the employee without having first notified him of the charge and without having heard his defence".
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Concordato preventivo: the new requirements for admission to the procedure.
[:it]The debtor may now limit himself to filing the application containing the mere insolvency petition, reserving the right to submit the proposal, the arrangement plan and the necessary documents after the filing.
As is well known, the government on 7 August 2012 enacted into law the so-called "Development Decree".
Several novelties have been introduced, but in any case, this short article will analyse a single legislative change in the area of fallimentarand is of particular interest. Indeed, the reform has changed the requirements for admission to the arrangement procedure. Specifically, the debtor may now limit himself to filing the appeal containing the mere insolvency petition, reserving the right to submit the proposal, the arrangement plan and the necessary documents after the filing of the appeal. The term for such filing is fixed by the court and is between 60 and 120 days. It is also recalled that this deadline can be extended, but by no more than 60 days.
Concerning the effects of filing an appeal, please note that following its publication in the commercial register and until the decree of approval of the composition agreement becomes final, creditors may not commence or continue any enforcement or precautionary enforcement of the debtor's assets, under penalty of nullity. Moreover, if judicial mortgages have been registered in the 90 days preceding the publication of the appeal, they are ineffective against creditors prior to the arrangement. In practice it is sufficient to file an application for admission to the arrangement procedure with the competent court in order to produce the effects under Article 168 of the F.L., i.e. the blocking of enforcement actions. The business plan, on the other hand, can be presented in the following months.
This reform was put in place in order to protect companies in crisis, given the difficult economic situation faced by many companies. As a result of this new legislation, it will be, overcome the use of the technique employed by the concordat companies in order to shield the debtor's assets, i.e. that to establish a destination vicolo on the assets pursuant to Article 2645 ter of the Civil Code, in favour of the creditors of the arrangement, during the period necessary to prepare the plan and file the appeal.
Finally, it should be noted that this technique had recently been made more uncertain, especially following a ruling of 13.3.2012 by the Court of Verona, in which it declared that "the plan of composition cannot be considered feasible where the debtor, prior to filing the application, has established a restriction on its immovable property pursuant to Article 2645-ter of the Civil Code for the declared purpose of avoiding that the disorderly seizure of the assets of the company in crisis may result in a dispersion of value to the detriment of the creditors and prevent an equitable distribution of the effects of the insolvency".
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Jurisdiction for contracts concluded on the Internet by the consumer.
[:en]What happens if one concludes a contract on the Internet, through a foreign site, and, following the conclusion, one finds problems with the contract concluded?
Which judge should I turn to? Who has jurisdiction. Read more
Innovative start-ups. Registration by 17 February 2013.
[:en]It is now official that from 19.10.2012 with the publication of the Development Decree bis in the Official Journalthe existence of incentives for innovative start-upsas included in the otherwise known as Growth Decree.
The requirements for registration are briefly listed in the commercial register site:
- corporation of Italian law whose shares or quotas representing the share capital are not listed and in which the majority of shares or shares are held by natural persons;
- are not operational since more than 48 months;
- carry out business activities in italy;
- annual production does not exceed the EUR 5 million;
- do not come distributed the profits;
- concerns thetechnological innovation of innovative products and services with high technological value;
- was not formed by a company merger/division or by the transfer of a branch of business;
- invests at least 20% of the greater value between cost and total value of production in development, or employs doctoral or post-doctoral researchers as employees or collaborators, or holds or files patents for industry and biotechnology;
Concerning facilities the law no. 221 of 17 December 2012 established for, with the intention of facilitating registrationa series of exemptions aimed at setting up and registering the company in the commercial register, tax benefits, as well as exemptions at company law and specific discipline in labour relations in the enterprise.
They remember:
- that the start-up is raised by the payment of stamp duty and secretarial fees due for entry in the commercial register as well as payment of the annual fee due to the chambers of commerce;
- has the right to hire staff with fixed-term contracts of minimum duration of 6 months and maximum duration of 36During this time, contracts may also be of short duration and renewed several times. At the end of 36 monthsthe contract may not be renewed any further, if not the last of 12 months thus bringing the amount of the contract to 48 months. After this period, the employee may only continue working in the start-up with an open-ended contract;
- i start-up collaborators may be remunerated by means of stock optionsand external service providers through the work for equity
- can benefit from priority access to facilitations for the recruitment of highly qualified personnel;
- were then tax incentives activated for investments in start-ups deriving from companies and individuals for the years 2013, 2014 and 2015;
- by theIce Agency has ordered assistance in the field regulatory, corporate, tax, real estate, contractual and credit issues, free-of-charge hospitality at major international trade fairs and events, and activities aimed at facilitating the meeting of innovative start-ups with potential investors for early stage and expansion capital.
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The detachment from the network. A quantifiable detachment?
[:it]If a citizen remains without connectionand, can you claim damages from the telephone company?
This question was answered by the Justice of the Peace of Trieste with a recent ruling (GdP Trieste 30/7/2012 no. 587).
The case involved a family that was left without an ADSL connection for four months, who turned to the Justice of the Peace in order to claim compensation for the damages suffered. The judge ruled on the point, stating that "case law has long been oriented towards the view that the disconnection or failure to connect the telephone and Internet line constitutes pecuniary damage and existential damage for the contract holder and his family, damage considered particularly serious in an age when communication is fundamental to every aspect of daily life."
On the basis of this reasoning, the Judge has thereforeliquidated pecuniary damage resulting from non-fulfilment (having left the family disconnected for 4 months) by stating: "such a breach, although not precisely quantifiable economically, fulfils the conditions of thecan be fairly valued at € 1,600.00. "
The judge continued in his reasoning, also recognising the damage from "digital divide", i.e. damage of an existential nature characterised by the citizen's exclusion from the network. The lack of access to connectivity services generates, compromises the relational sphere, realising activities and different life habits.
On this point the Judge: 'somewhat difficult to carry out daily activities, difficulties constituting a prerequisite for granting the plaintiff compensation for the existential damage suffered as a result of the breach of contract by the telephone operator ....The assessment of the damage in the absence of objective criteria must be determined equitably at €800.00"
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Mum, the plane is late!
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What happens if the plane lands with a significant delay? Is the passenger in any way entitled to a damages?
These questions were recently answered by the European Court of Justice, which ruled in the Judgment of 23 October 2012, No. 629/10that in the event of passenger disembarkation with a three-hour delay after the scheduled timethe latter is entitled to request the lump-sum compensation scheduled for the cancellation of the flight.
See on this point the EC Regulation No. 261/2004 which provides that, in the event of flight cancellation, passengers may receive lump-sum compensation of between EUR 250 and EUR 600.
The above principle makes application of what has already been established at Sturgeon judgment of 19/11/2009in which the Luxembourg courts held that passengers of delayed flights can be assimilated to passengers of cancelled flights as regards their right to compensation.
It is clear that compensation cannot be claimed if the air carrier proves that it was caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken, i.e. circumstances beyond the air carrier's actual control.
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