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Assignment of company lease: enforceability to the creditor only if transcribed

The Court of Cassation, with sentence no. 26701 of October 23, 2018, stated for the first time on a topic that had never been discussed, such as the applicability of art. 2643 n. 9 c.c. - in the matter of transcription - to the transfer of company lease. According to the judges, the assignment of the fee deriving from the company lease contract is opposable to the attachment creditor on...

Mandatory of “Modello Organizzativo 231”

September, 27th 2018 represents a significant date according to Legislative Decree no. 231/2001 on the administrative liability of companies because of the radical change of discipline that could be implemented: it has began the legislative process that could make "modelli organizzativi", provided by Legislative Decree no. 231/2001,to be madatory. On that date, the amendment text was assigned ...

Machinery not in compliance with the safety regulations: responsibility lies with the renter

The Supreme Court (Court of Cassation, Section IV, No. 40931 of 24.9.2018) stated the criminal liability of the employer who has rented an "unsafe" machinery, that caused an accident to an employee. In that case, pursuant to art. 16 T.U. n. 81/2008, the company's managing director had delegated functions to another person within the company, in order to take care of the production plan...

Legal assignment: ANAC Guidelines no. 12 have been approved

The National Anticorruption Authority has approved, with the resolution no. 907 of 24th October 2018, the Guidelines n. 12, concerning the procedures to be observed for the assignment of legal services, in light of the provisions contained in the Legislative Decree 18 April 2016, No. 50. According to the new Guidelines, the Public Administration, must guarantee transparency, professiona...

If a party withdraws a judicial file and does not bring it back, the Judge can decide at the state of the proceedings

If the Judge ascertains that a party, before the hearing, has regularly withdrawn its file, pursuant to art. 169 of the Italian Civil Code, and, at the time of the decision, the file itself cannot be found, the Judge himself is not obliged to refer the case to the register in order to allow the party to remedy, but has the duty to decide the case at the state of the proceedings. This principle ...

Public tender procedure: committed crimes are relevant for the purpose of exclusion

The Council of State with Sentence n. 6061 of October 22, 2018 stated that among the relevant convictions pursuant to art. 80, paragraph 3, of the Code of Public Contracts, for the purposes of exclusion from the tender, not only those specifically listed in paragraphs 1 and 2 of the article, but also those incidents, pursuant to paragraph 5 below, on the reliability of the company: in particula...

Labor Law: service length bonus is considered an unavailable right

Service length bonus is an unavailable right and therefore not susceptible to renunciation by the worker. This is what the Supreme Court, in the Sentence No. 25315/2018, stated on the appeal proposed by a group of workers who renounced to seniority shots, during a dispute against their employer. The waiver of length of service bonus, collected by a certain period of the employment relat...

The notification is not void if the lawyer's forename is incorrect

The Court of Cassation, with Order no. 26260/2018, stated that with regard to the notifications made to the Party's attorney, the erroneous indication of the forenames of these does not cause nullity of the notification. It is the opinion of the Judges of the Court that, in these cases, the notification should be considered completed pursuant to the second paragraph of Article 138 of th...

Mediation: the conclusion of the deal and the right to commission

The article 1754 of the Civil Code defines "mediator" as the one who relates two or more parties to the conclusion of a business, without being linked to any of them by relationships of collaboration, subordination or representation. The mediator is entitled to commission by each of the parties, if the deal is concluded as a result of his intervention. The Court of Cassation, sec. II, w...

Crime of non-payment of VAT tax also after the request for a composition with creditors

With regard to the omitted payment of VAT tax, the admission to the composition with creditors, even before the expiry of the deadline for the payment of the tax, does not exclude the offense envisaged by art. 10 ter d.lgs. 10 March 2000, n. 74 in relation to the VAT tax debt expired and to be paid. This is what was established by the Court of Cassation, Section III, sentence no. 13744...

Administrative Procedure: Setting aside a judgment with referral is possible, but only in mandatory cases

The Plenary Assembly of the Council of State, with sentence no. 15/2018, has stated the mandatory nature of the annulment with postponement to the first instance judge, provided for by art. 105 c.p.a. Among the cases provided by Law, there is not the erroneous declaration of inadmissibility of the appeal for lack of interest. The Appeal Court, however, can retrain first instance judgmen...

Contracts between individuals and public administration: the supplier pays VAT only when he receives the payment

With regard to the VAT, the d.P.R. 633/1972 (article 6, paragraph 5) establishes that, for the sale of goods and services to the State, the tax becomes exigible just upon payment of the relative fees. The Civil Cassation, tax section, with order no. 24454 of 5.10.2018 stated that the term "payment of fees" should be understood as the effective collection of the paid amount by the lender...