Studio Legale Pavan Website

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...

Public tender: the Administrative Court reiterates the principles regarding the contestation of tender notice

The Administrative Court of Lazio Region, Sec. III quater, with the Sentence no. 11828 of December 6th 2018 established that those who voluntarily abstained from participating in a public tender are not entitled to ask for the annulment, even though there is an interest in the competition being re-banned. This general rule can be waived, for the needs of widening the protection of compe...

Dismissal: even the employer can take legal action ascertaining the legitimacy of the dismissal.

The Cassation, Sec. Work, with the sentence of 23rd November 2018, no. 30433 established that the employer can take legal action to ensure the legitimacy of the dismissal. Therefore, due to the constitutional principle of equivalence in the attribution of the available procedure means, the same judicial protection must be recognized for both parties of the substantive relationship. For ...

Company: the professional role of director is supposed to be burdensome

Due to the presumption of burdensome of the mandate, the professional role of director of a company determines the right to remuneration, which is independent of an express agreement of the parties and from the request for liquidation by the administrator to the company administered during his office. Any eventual inaction in that sense, therefore, cannot have any value of tacit renunci...

Separation: the alimony cannot be granted for the spouse who has established a de facto family

The Civil Court of Cassation, Sec. I, with the Sentence n. 32871 of December 19th 2018 established that in the event of legal separation of the spouses and the formation of a new de facto family by the spouse receiving the maintenance allowance, a break occurs between the previous phase of matrimonial cohabitation and the new factual structure. Due to this, it is extinct the right to periodic c...

The oath is inadmissible when referred to the termination of the preliminary contract

The Court of Cassation in the Sentence no. 30446 of November 23rd 2018 established that the oath cannot be admitted to prove the consensual resolution of a preliminary sale contract of real estate, because even this contract is subject to the requirement of the written form. According to the Court, article 2739 of the Italian Civil Code provides that the oath cannot be used “[...] reg...

The avoidance action against a failed company is inadmissible

The case derives from the decision of the Court of First Instance which upheld an avoidance request pursuant to art. 66 L.F., against a failed “coop a r.l.”, by reference to an holding transfer settled by the companies when both of them were “in bonis”. The Court of Cassation, SS.UU., with the sentence no. 30416 of 23.11.2018, established that an avoidance action against a faile...

Public tender: the “Responsabile Unico del Procedimento” (i.e. R.U.P.) can be a member of the selection board

The Council of State, Section III, in the Sentence no. 6082 of October 26th 2018 established that there is not automatic incompatibility between the functions of the R.U.P. and those of a member of the selection board. The ruling intervenes on a controversial matter stating that the R.U.P. can be part of the selection board of the tender, unless there is a concrete demonstration of the ...

Dismissal of the manager justified even if replaced by a new employee

With order no. 27199 of October 26th, 2018, the Court of Cassation rejected the appeal of a former manager (Supply Chain Manager) who had challenged the termination intimidated by the employer to suppress his job position. He argued that the position had not been suppressed, and the sector had even been boosted by new hires. The Court has declared the dismissal legitimate, havin...

The flavor can not be protected by copyright

The Court of Justice of the European Union, Great sec., with the sentence no. C-310/17, stated that the taste of a food can not be protected by copyright. According to the Directive no. 2001/29, Member States provide exclusive rights for authors on their "works". The Court has specified that the taste of a food can not be protected by copiright as it can not be qualified as a "work" wit...

The inadmissible judicial request can interrupt the prescription period

The principle established by article 2945, second paragraph, of the Italian Civil Code establishes that the interruption of the prescription period, determined by the proposition of a judicial request, continues until the judgment is undeniable. This principle is not applicable only in case of extinction of the trial. Nevertheless, the interruption of the prescription period has to be a...

Auditors of a Company acting in concert to commit the crime of bankruptcy

Article 2403 of the Civil Code provides that the Board of Statutory Auditors oversees the compliance with the principles of proper administration and in particular the adequacy of the organizational, administrative and accounting structure adopted by the company. This rule requires the Auditor to oversee the observance by the directors of the law and the bylaws, as well as the preservation of t...