Studio Legale Pavan Website

With document no. 9036/09 of 24th April 2009, the European Council authorized the European Commission to negotiate an economic agreement with Canada on behalf of the European Union. Negotiations, ended in 2014, led to an agreement called CETA (Comprehensive Economic and Trade Agreement).

Among the various issues dealt with, are the elimination of almost all customs duties, the end of restrictions on participation in public procurements and the access to services and investments in Canada. The signing of the agreement, scheduled for 27th October, has been suddenly cancelled. This was because on 10th October the Parliament of Wallonia failed to approve the agreement, therefore not allowing the Belgian Prime Minister to sign it.

It is not clear whether or not the European economic policy falls within the mixed competence of Member States and the EU. If this were the case, prior to the ratification of economic agreements, it would be necessary to obtain the approval from national legislative bodies and, according to the constitutional law of each Member State, from regional legislative entities too.

With regard to this, in a similar economic agreement signed with Singapore, the European Commission asked the European Court of Justice for advice, holding that in economic matters the competence is of the EU exclusively. If the Court confirmed this opinion, it would be sufficient that economic agreements of the EU are approved by the majority of the European Council and of the European Parliament, with no need to be placed under the scrutiny of national Parliaments.

So, the signing of the agreement between the EU and Canada may be postponed for just a few months, given that the decision of the Court is expected for the beginning of 2017.

The crime of “bancarotta fraudolenta” may be committed also if the bankrupt entrepreneur is not the owner of concealed assets

The crime of “bancarotta fraudolenta patrimoniale” is set out in article 216 of the Italian Insolvency Act. It punishes with imprisonment from three to ten years the bankrupt entrepreneur who has wholly or partly concealed their assets to avoid having to forfeit them.

Jurisprudence had already stated that goods whose possession is temporary, such as in the case of a lease or bailment agreement, are not to be considered as assets belonging to the bankrupt entrepreneur (Court of Cassation, 27th February 2015, no. 13556).

With judgment n. 44350 of 20th October 2016, the Court of Cassation has explained that, as regards the commission of such a crime by the entrepreneur then declared bankrupt, it is sufficient to ascertain that the entrepreneur possesses such assets, irrespective of the existence of a valid contract as a requisite for their possession.

The Court has concluded that, in the case under its scrutiny, also the failed delivery of rented goods to the receiver determines the commission of such a crime, if the concealed assets are possessed by the entrepreneur, independently of the kind of agreement and of its validity.