Studio Legale Pavan Website

Public procurement procedures: if manpower costs are lower than the minimum amount prescribed by law, direct exclusion is legit

The TAR Tuscany, section II, with the sentence no. 165 of 1.2.2019 stated the legitimacy of the direct exclusion, by the Contracting Authority, of the competitor whose offer included labor costs below the minimum required by the ministerial tables. This power of exclusion is founded in art. 95, paragraph 10, of Legislative Decree no. 50/2016 as amended by art. 60, paragraph 1, lett. e),...

European Court of Justice: only a participant in a public procedure is allowed to contest its acts

The European Court of Justice, with Ruling of 28th November 2018 (case C-328/17), stated that the EU legislation on public procurement does not preclude a national legislation (specifically the Italian one) which does not allow economic operators to appeal against tender proceedings in which they did not take part. More specifically, the Court held that neither Article 1, par. 3 of Coun...

Accident at work: clarified the requirements of the employer’s criminal liability

With Judgment no. 50000 of 6th November 2018, the Court of Cassation stated on a case of accident at work, in which the vice president of the board of directors of a company, holder of a specific delegation in the field of safety and hygiene at work, was sentenced for the crime of serious bodily injury suffered by one of his employees. According to the Court, the guiltiness was based on...

Constitutional Court: restore deficits in 30 years is unconstitutional

The Constitutional Court, with the sentence no. 18 of 14.2.2019 has declared unconstitutional the rule, contained in the Budget Law of 2017, which allowed Local Authorities to restore a deficit in 30 years. The Court, in fact, considered the provision in conflict with Articles 81 and 97 of the Constitution, in terms of damage to the balanced and fair financial budget management....

The new Code of company crisis and insolvency

The Code of company crisis and insolvency, in implementation of the Law no. 155/2017 (Legislative Decree no. 14/2019), was published in the Official Gazette of 14th February 2019 no. 38. The Code aims to reform the discipline of bankruptcy procedures in an organic way, in order to allow an early diagnosis of companies’ state of insolvency, and to safeguard the entrepreneurial ability ...

Dismissal is legitimate even if the non-labor behavior integrating due cause of dismissal is prior to employment

The non-labor behavior that may be relevant for the purposes of integrating the due cause of dismissal, does not necessarily have to be subsequent to the establishment of the working relationship, provided that such behavior, learned by the employer after conclusion of the contract, is effectively incompatible with the degree of entrustment required by the tasks assigned to the employee. ...

Public procurements: the declaration of the works and services that are intended to be subcontracted is necessary

At the time of the offer, pursuant to art. 105, paragraph 4, of Legislative Decree no. 50/2016, the competitor must declare the part of the services that he intends to subcontract and this declaration must be specific especially if it is a hypothesis of necessary subcontracting. In case of failure to declare, in case of necessary subcontracting, it is not even possible to have recourse ...

After the debtor has paid the debt, the creditor cannot act for the costs of the draft notice

When the debtor has paid in full the sum indicated in the injunction order, including the interests and legal costs paid in the monitoring measure, the creditor cannot order the payment of the expenses, on the basis of the same decree, incurred after its issuance and necessary for the notification. For these expenses, in fact, , the creditor must perform the action of ordinary cognition...

Commercial agent: clarifications from the Court of Justice of the European Union

According to the European legislation, "commercial agent" means the person who, as an independent intermediary, is permanently appointed by the “principal” to deal the sale or purchase of goods, or to process and conclude such transactions in the name and on behalf of the principal himself (Article 1 of Directive no. 86/653). The Court of Justice of the European Union, Section Fourt...

Administrative infringement disputed against a S.n.c.: only the natural person can be liable

With regard to administrative sanctions, pursuant to art. 3 of the Law of 24 November 1981, no. 689, is considered to be responsible for the administrative infringement only the natural person to whom the action or omission, that constitutes an infringement, is referable. It follows that, if an administrative infringement is abstractly attributable to a company, managing directors are n...

The hidden sale of a company can be proven by presumptions

The Court of Treviso in the sentence of 30th November 2018, no. 2395 established that the hidden sale of a company can be proved by the creditor through presumptions. In the case submitted to the Court, the sale was deemed to be deducible on the basis of multiple presumptions, considered to be serious, precise and concordant, such as: the identity of the registered office; the exercise ...

Financial Law 2019: new values of thresholds by way of derogation from the Public Procurements Code

The Law no. 145/2018 (c.d. Financial Law 2019) has provided, in paragraph 912, pending a comprehensive review of Legislative Decree 18 April 2016, n. 50 (Public Procurements Code), a temporary derogation from the procedures for the assignment of works. It is established that, from 1st January to 31st December 2019, contracting authorities will be able to: entrust works between € 40,00...