Table of contents
RRF’s implementing measures
The Council of Ministers approved Law Decree, entitled “Additional urgent measures for the implementation of the Resilience and Recovery Facility”, aimed at simplifying some procedures related to the implementation of its objectives in the field of public administration, taxation, environment, tourism, justice, infrastructure and digital transition.
Law Decree of 30 april 2022 no. 36 (published in Official Gazette on 30 April 2022 no. 100)
MED has recently published a decree, aim at setting terms and procedures for submitting applications to access to grants on the basis of sustainable investment programmes proposed by small and medium-sized enterprises.
Applications can be submitted from 18 May 2022; requirements include compliance with environmental protection and high technological content, in order to encourage the company’s transition towards energy sustainability.
MED’s Decree of 12 April 2022
Implementation of Sostegni-ter Decree
MED has recently set the procedures and deadlines for submitting applications for access to the fund for the relaunch of economic activities in favour of companies that carry out mainly retail activities, as provided for by Sostegni-ter Decree (see NL no. 1/2022). Applications may be submitted telematically from 3 to 24 May 2022.
MED’s Decree of 24 March 2022 (published in the Official Gazette on 7 April 2022 no. 82)
SIMEST financing for the digital and ecological transition of Italian companies with an international vocation
Effective 27 April 2022, Italian SMEs and Mid Caps established as joint stock companies that have filed at least two balance sheets for two complete financial years with the Register of Companies may apply for financing, at a subsidised rate, for investments both in digital technology and to promote their sustainability and competitiveness on international markets. The funding has been allocated from Fund 394/81, as part of the RRF’s implementation.
SIMEST (CDP Group), Circular no. 1/RRF/394/2022 of 27 April 2022
Corporate/Laws of contract
Directors’ joint and several liability in the absence of express proxies
In the absence of the conferral of specific powers on one or more directors, the entire BoD shall be jointly and severally liable for any wrongdoing resulting from the resolution or in any case committed by it, with the exception of directors who have expressed in writing their dissent vis-à-vis the specific resolution, as provided by article 2392 of the Civil Code.
The reason being that each director assumes both direct management tasks and a specific obligation to supervise the activity of the BoD. In fact, even when specific matters have been attributed to the competence of one or more directors, the others have the duty to supervise the management of the company and the most significant operations. This places on them, in the presence of alarm signals, the burden of taking action to prevent the performance of a detrimental act or to eliminate its harmful consequences.
Criminal Court of Cassation, section III, decision of 28 March 2022 no. 11087
The digital transformation in the Italian banking sector
The paper of the survey, which focuses on the digital transformation process of Italian banks (about 280) from 2007 to 2018, is now available on the BoI’s website, in the occasional papers section.
The survey shows that Italian banking industry registers a weak approach to the world of digitalisation, requiring additional efforts. In 2018, almost all banks offer digital access to payment services; but only a few (the largest) are able to provide a full digital offering.
Economic and Finance Questions, Occasional Paper, “The digital transformation in the Italian banking sector”, published on the Bank of Italy’s website on 20 April 2022
Interpretation of insurance contract related to mortgage contract
The legal qualification procedure consists of two steps: on one hand, the research and identification of the common intention of the parties in relation to the contractual interpretation’s canons and, on the other hand, the framing of the common intention in the typical legal scheme.
In the present case, the Supreme Court found that an insurance contract linked to a loan contract was a contract in favour of a third party (namely, the lender).
Consequently, the judges held that the clause providing for the insurer’s right of subrogation against the borrower in the event of default by the latter, in relation to the compensation paid to the lender for the materialisation of the risk, was valid.
Court of Cassation, civil section III, decision of 28 March 2022, no. 9866
BoI’s supervisory expectations on climate and environmental risks
The BoI, in line with similar initiatives by the ECB and supervisory authorities in other EU Member States, has developed a first set of supervisory expectations on the integration of climate and environmental risks into business strategies. In particular, in the context of:
- governance, the BoD, in order to make informed decisions, must be able to understand and assess the implications of climate and environmental risks on the business model and strategy. To this end, it explicitly assigns roles and responsibilities to its members and/or existing committees;
- business model and strategy, intermediaries must be able to assess the materiality of climate and environmental risks, both physical and transitional, that may affect the business environment;
- organisational system and operational procedures, the BoD must act in a manner consistent with and proportional to the climate and environmental risks, materially foreseen;
- risk management, the manager must implement the risk management process in order to identify, measure and prevent risks;
- market disclosure, the provision of sufficiently detailed, complete and comparable information on exposure to climate and environmental risks, enables the most virtuous intermediaries to increase the overall quality of market disclosure and to signal to all stakeholders their position in the transition process towards a more sustainable economy.
Supervisory expectations on climate and environmental risks, published on Bank of Italy’s website on 8 April 2022
ACF’s annual report
From the annual report of ACF appears that during the year 2021, 39.2 million euros of compensation were awarded to savers. This is the highest amount in five years of activity since the ACF, set up at Consob, began operating in January 2017.
In the five years of activity, the ACF has received a total of 8,695 appeals and concluded 7,385 proceedings. Finally, the number of cases of early settlement of disputes is increasing (242 in 2021 compared to 212 in 2020) thanks to agreements reached while the proceedings before the ACF were ongoing, a sign that the out-of-court reconciliation tool favours an agreement between the parties.
ACF’s Annual report about activities carried out during the year 2021 (published on Consob’s website)
Consob’s regulatory plans
Consob has published a non-binding programming document containing a) the annual plan of the activities it intends to carry out for the adoption of general regulatory acts, b) the two-year plan of regulatory impact assessment activities, for the effective and efficient pursuit of its purposes.
Regulatory activity, in the current year, is aimed at adapting to EU provisions and identifying measures to facilitate access to capital markets and reduce listing costs, as part of the review project, promoted by MEF, aimed at boosting the competitiveness and attractiveness of national financial markets.
Regulatory Activities Plan (Regulatory strategies division) published on Consob’s website on 11 April 2022
Effectiveness and direct applicability of EU law in the Member States
CJEU has recently expressed two important interpretative principles in the field of administrative sanctions.
Firstly, CJEU reiterated, on the basis of settled case-law, that where EU directive’s provisions appear unconditional and sufficiently precise, individuals may rely on them before national courts.
In the present case, the proportionality principle of penalties laid down in the EU directive (see Article 20 of Directive EU/2014/67) is considered to be unconditional and sufficiently precise in nature, such as to have direct effect, and thus to be invoked by the individual and applied by the administrative authorities and national courts.
Secondly, CJEU ruled that by means of the EU law primacy principle, the national court must disapply any national legislation which is contrary to the proportionality principle of penalties (Art. 20 of Directive EU/2014/67), in order to allow the application of proportionate penalties, which are both effective and dissuasive, even if less severe than the penalty previously imposed.
CJEU, decision of 8 March 2022, case C-205/20
The Lehman Brothers case: investor protection before bankruptcy
The Court of Patti (Messina) examined the case of a client, rejecting the appeal, who entered into a financing contract purchasing bonds of Lehman Brothers, which went bankrupt after about a year.
The decision is noteworthy, as several issues were addressed from the information provided by the intermediary to the client, to the prediction of the bank’s insolvency situation, to the allocation of the burden of proof among the parties.
Firstly, it was demonstrated that:
- the client had declared his willingness to risk losses in order to achieve the desired capital growth objective;
- the transactions arranged by the client might have been unsuited to his profile in terms of type, frequency and size;
- the bank warned the investor that the security could only be purchased if the client had adequate financial facilities to bear the price and liquidity risks as well as the additional risks associated with it.
Secondly, the insolvency of Lehman Brothers could not have been foreseen. The financing contract was concluded in 2007, the rating downgrade occurred in 2008 and Lehman Brothers filed for bankruptcy in September of the same year.
Finally, the Court ruled that since the burden of proof was on the client, the latter should have demonstrated the precise factual circumstances aimed at substantiating its claims of lack of information.
Court of Patti, decision of 31 March 2022, no. 224
DPA rejects platform for online referendum
DPA has recently issued a negative opinion to MIT on the draft decree setting out the rules for the digital platform for the collection of signatures.
Specifically, DPA considers that the platform is complex, composed by a public and a private area, which can be accessed by the referendum central office’s staff at the Supreme Court, the promoters and citizens who intend to sign the proposals.
However, the draft decree also envisages the intervention of other parties, to be identified later.
Therefore, such postponement does not provide adequate safeguards for the protection of personal data with regard to essential aspects of the functioning of the platform.
DPA’s opinion of 24 March 2022, no.106
Class action to protect privacy
CJEU recognised that consumer protection associations can bring privacy actions even in the absence of a specific delegation from the injured party.
“Article 80, paragraph 2, of Regulation EU/2016/679 (GDPR) on the protection of natural persons with regard to the processing of personal data, and on the free movement of such data, does not preclude that a consumer protection association brings legal proceedings, even in the absence of a mandate conferred on it for that purpose and independently of the infringement of specific rights of the data subjects, against the person allegedly responsible for an infringement of the laws protecting personal data”.
CJEU, decision C-319/2020 of 28 April 2022
Crypto currency exchange activity
MEF, in implementation of the AML Law, has established the special section of the register kept by BAM, in which providers of services relating to the use of virtual currency and providers of digital wallet services are obliged to register in order to exercise their activity in Italy.
In particular, providers are required to:
- communicate to BAM their own data for the purposes of registration in the special section of the register and data relating to transactions carried out in Italy;
- comply with anti-money laundering obligations, such as (i) customer due diligence, (ii) storage of documents, data and information useful to prevent, detect or ascertain any money laundering or terrorist financing activities and to allow the performance of control activities by the competent authorities, and (iii) reporting suspicious transactions when there are reasonable grounds to suspect that money laundering or terrorist financing operations are being or have been carried out or attempted.
MEF Decree of 13 January 2022 (published in Official Gazette on 17 February 2022 no. 40)
The Ticketone’s case
RAC of Lazio has annulled the Antitrust Authority’s decision in which holding Eventim-Ticket One was fined 10.9 million euros after it was found to have abused its dominant position in ticketing market.
According to the administrative court, the Authority had filled a protection gap in competition law, which did not provide for ad hoc merger rules, in order to avoid that the abusive behaviour of an undertaking in a dominant market position, strengthened by a merger, would remain without consequences.
Therefore, according to RAC, if it were accepted that “concentrations are subject to analysis by the authorities for antitrust purposes outside the rules laid down in Regulation EC/139/2004, the system of protection provided for therein, including in the interests of undertakings, would be irremediably compromised “.
RAC Lazio, sec. I, decision of 24 March 2022, no. 3334
List of associations eligible for class and collective injunction actions
After a long waiting, the list of organisations and associations entitled to bring class and collective actions for injunctions has been established.
The measure lays down stringent admission requirements (headquarters in Italy or an EU member state, statutory objective aimed at protecting homogeneous individual rights, non-profit) and registration procedures, also determining the amount of the initial and annual contribution.
Class action and collective injunctive action are procedural tools, introduced by Law of 12 April 2019 no. 31, reserved for non-profit organisations or associations, registered in the above-mentioned list.
The class action allows to take legal action against the author of the injurious conduct in order to ascertain liability and order compensation for damages.
Collective actions for injunctions, on the other hand, make it possible to obtain a ruling to cease or prohibit the repetition of omissive or commissive conduct, implemented to the detriment of a plurality of individuals or entities.
Ministerial Decree of 17 February 2022, no. 27 (published in the Official Gazette on 12 April 2022 no. 86)
Filing for admission of debts to an insolvency proceedings determines the interruption of the statute of limitation for the entire duration of such proceedings
“In the case of a trust company placed in compulsory winding-up, admission to the statement of claims determines, both for creditors admitted directly following the communication sent by the liquidator pursuant to article 207, first paragraph, Insolvency Law, and for creditors admitted on application pursuant to article 208 of the same law, the interruption of the time-barred with permanent effect for the entire duration of the proceedings, from the date of the filing of admitted creditors’ list, in the case of official admission, or from the date of the request addressed to the liquidator for the inclusion of the claim in the liabilities, in the case of a request made by a party“.
By means of the decision, the Joint Chambers of the Supreme Court recognised, pursuant to Article 1310, paragraph 1, of Civil Code, MED’s joint and several liability as a liable party for compensation for the loss of the capital deposited on trust in the supervised company, which then became insolvent.
Joint Chambers of the Supreme Court, decision of 27 April 2022, no. 13143
ECHR condemns Italy for the ineffectiveness of fair compensation in case of trial’s delay
ECHR has recently condemned Italy for violation of Article 13 of ECHR, which deals with the reasonable duration of the trial and the right to fair compensation under the so-called Pinto Law.
In particular, pursuant to Article 13 of the ECHR, the Court has considered effective a remedy when “it is capable of redressing the situation which has been adjudicated as injured” and the duration is reasonable when “the final decision is given as soon as possible and at the same time provides for the right to compensation for the delay caused“.
Overriding the previous approach, the Court has recognised that the instrument for the protection of fair compensation is ineffective because it is, in any case, conditional on the conclusion of the proceedings whose excessive duration is object of the complaint.
As a result, “where a claimant considers that the duration of the proceedings was excessive, he must be able to claim compensation before the national courts at any time during [those] proceedings“.
ECHR, sect. I, decision of 28 April 2022 no. 15566/13 (Verrascina and Others v. Italy
List of abbreviations
ACF: Securities and Financial Ombudsman
AML: Anti-money laundering
AML Law: Legislative Decree of 21 november 2007 no. 231 in implementation of Directive 2005/60/CE
BAM: Body of Agents and Mediators
BoD: Board of Directors
BoI: Bank of Italy
CdP: Cassa Depositi e Prestiti S.p.A.
CONSOB: The national financial markets authority
Directive 2014/67/EU: on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System of 15 May 2014
DPA: Data Protection Authority
EC: European Council
ECB: European Central Bank
HER Court: European Court of Human Rights
ECHR: European Convention of Human Rights
EUCJ: European Court of Justice
EU: European Union
GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46
Insolvency Law: Royal Decree of 16 march 1942, no. 267
MED: Ministry of Economic Development
MEF: Ministry of Economic and Finance
Mid Cap: Medium capitalisation company with no more than 1,500 employees
MIT: Ministry of technological Innovation and digital Transition
NL: The Client Update no. 1/2022
Pinto Law: Law 24 March 2001 no. 89, concerning the provision of equitable reparation in case of violation of the reasonable term of the trial and amendment of article 375 of the civil procedure code. Published in the Official Gazette on 3 April 2001 no. 78
RAC: Regional Administrative Court
Regulation EC/139/2004: EC Merger Regulation on the control of concentrations between undertakings
RRF: Law Decree of 6 November 2021 no. 152, entitled Urgent provisions for the implementation of the National Resilience and Recovery Facility and for the prevention of mafia infiltration, converted with amendments into Law of 29 December 2021 no. 233, published in the Official Gazette on 31 December 2021 no. 310.
SIMEST: “Società italiana per le imprese all’estero”
SMEs: Small and medium enterprises
Sostegni-ter Decree: Law no. 73 of 28 March 2022 (published in the Official Gazette no. 73 of 28 March 2022 – Ordinary Supplement no. 13) which converted Law Decree no. 4 of 27 January 2022