Studio Legale Pavan Website

The Court of last instance does not assess the existence of a “termine essenziale” pursuant to art. 1456 c.c.

The Court of Cassation, by Order no. 18835 of 16th July 2018, has stated that, pursuant to article 1456 of the Civil Code, a deadline to perform contractual obligations is to be deemed essential (so-called “termine essenziale”) only if a Court of first or second instance has ascertained that the contractual parties had agreed to exclude any economic utility to the performance of th...

"Concordato fallimentare": companies in a conflict of interest with the applicant cannot express their vote

By Judgment no. 17186 of 28th June 2018, the Court of Cassation in its plenary session has dealt with a case in which an application for a “concordato fallimentare” had reached the majority required by law thanks to the favorable vote of companies related to the one which was subject to the collective procedure. The said Judgment examines whether or not a company which proposes a �...

Divorce check: the Plenary Session revises the criterion of the lack of self-sufficiency

By Judgment no. 18287 of 11th July 2018, the Court of Cassation in its Plenary Session has revised, as to the divorce check, the criterion of the lack of self-sufficiency that last year, by Judgment no. 11504/2017, the first Section of the Court of Cassation had preferred to the traditional one of the standard of living during the marriage. The Plenary Session has now stated that a divo...

Costs for the decontamination of an area are to be borne by the responsible subject

By Judgment no. 144 of 18th January 2018, the TAR Lombardia has stated that the owner of a contaminated area has to carry out those precautionary measures which are suitable to avoid the occurrence, in the very near future, of a harmful event. In the case at issue, the prescriptions contained in the decree impugned by the owner of the polluted area did not aim to avoid an upcoming harmf...

The service of a document to the place where a family member of the recipient lives is void

With Order no. 14361 of 5th June 2018, the Court of Cassation has stated that if the service of a document is made to a family member of the recipient in the same place where the recipient lives, it must be presumed that the recipient has come to know about the service of that document. In the case at issue, the service was made to the place where the recipient’s mother lived. Place w...

Provisions not directly damaging to a participant are impugned with the award

By Judgement no. 1378 of 31st May 2018, the TAR Lombardia has stated that the provisions of a contract notice are autonomously challengeable if they clearly damage the interests of a potential participant by hindering his participation in a public procedure. Provisions which indicate a criterion for the award of a contract, instead, are to be disputed only with the award itself or with ...

A notice to comply is to be addressed to a party which is already defaulting

By Judgement no. 15052 of 11th June 2018, the Court of Cassation has stated that a notice to comply is to be addressed only to a party who is already defaulting.  Such notice cannot be sent before the expiry of the term for the performance of a contract. In the case at issue, the Court of Appeal had ascertained that a preliminary contract of sale was to be considered terminated on the ...

Work accidents: interruption of the causal link between employer's conduct and harmful event

By Judgment no. 22034 of 18th May 2018, the Court of Cassation has explained that, as to the implementation of safety measures on workplaces, an employer is not liable when his employee’s conduct cannot be foreseen and is also kept in a context which is completely unrelated to the tasks he was assigned. According to the Court, it must be excluded, in the case at issue, the existence o...

Public procurements: the attribution of a score only may not satisfy the obligation of motivation

By Judgment no. 3301 of 1st June 2018, the “Consiglio di Stato” has stated that, in a pairwise comparison, the motivation of an award can be satisfied by a simple score provided that the contract notice contains criteria which enable to clearly understand the connection between that score and the evaluation. In the case at issue, each of the four evaluation parameters was made of mu...

Proceedings following a “opposizione agli atti esecutivi” for an ordinary credit are introduced with a “citazione”

By Order no. 12035 of 16th May 2018, the Court of Cassation has explained that if a “opposizione agli atti esecutivi” procedure concerns an ordinary credit (and not a work credit), the subsequent proceedings have to be introduced with a “citazione” and not with a “ricorso”. In the case at issue, an attorney on behalf of whom a Labour Judge had ordered the payment of his fee,...

Publication of ANAC Guidelines on "Most economically advantageous tender"

The Resolution of the National Anti-Corruption Authority (ANAC) of 2nd May 2018, published in the Official Gazette no. 120 of 25th May 2018, has updated Guidelines no. 2 implementing Legislative Decree no. 50 of 18th April 2016, on "Most economically advantageous tender". The Resolution requires contracting authorities to clearly define award and evaluation criteria, methods and formula...

The Constitutional Court increases the cases of compensation of litigation costs

On issuing a Judgment in civil proceedings, a Judge orders the losing party to pay litigation costs sustained by the other party. By Judgment no. 77 of 19th April 2018, the Italian Constitutional Court has upheld the question of constitutional legitimacy concerning the lack of a provision enabling a Judge to partially or wholly compensate litigation costs between the parties in cases di...