Studio Legale Pavan Website

A contracting authority can set a time limit for the filing of documents

With Judgment no. 738 of 5th February 2018, the Consiglio di Stato has stated that a contracting authority can impose a time limit for the transmission of documents which are necessary for the conclusion of the contract, even if that time limit is not expressly mentioned in the contract notice. In the case at issue, the contracting authority, after the provisional award, had fixed a ten...

The favorable vote to the request of a loan does not oblige a company’s member

The favorable vote expressed by a member of a limited liability company in the course of a meeting where the request of a loan to the members is approved, does not oblige him to make that loan. With Judgment of 15th June 2017, the Court of Milan (Sezione Specializzata in materia di imprese) has then quashed the injunction obtained by the company against the member who did not provide th...

The principle of rotation in below threshold public procurements: remarks by the Special Commission

With Opinion delivered after the Meeting of 26th January 2018, the Special Commission of the Consiglio di Stato has examined the Guidelines on below threshold procedures drawn up by the ANAC and amending its previous Guidelines no. 4/2016. With reference to the principle of rotation of awards and invitations, the Special Commission has observed that it is correct to distinguish between ...

Public procurements: the interpretation of a tender is admissible under specific conditions

The Consiglio di Stato, with Judgment no. 113 of 11th January 2018, has explained that in public procurement procedures, in which the rule of non-amendability of tenders applies, the contracting authority is nevertheless allowed, under specific conditions, to carry out an interpretative activity of the will of participants. This aims at overcoming potential ambiguities related to the wo...

Elements contrasting with the reconstruction by the Revenue require a proper motivation

The Court of Cassation, in Judgment no. 2935 of  7th February 2018, has examined the appeal against a ruling upholding a sanction imposed by the Agenzia delle Entrate, according to which some taxpayers had not declared capital gains on the transfer of a business. The involved taxpayers had observed that, at the time the transfer of the business would have taken place, the transferor ha...

Omitting to pay taxes and social security contributions may constitute the crime of bankruptcy fraud

The Court of Cassation, with Judgment no. 633 filed on 10th January 2018, has ruled that the systematic omitted payment of taxes and social security contributions, attributable to the directors of a company, is to be included among those wilful operations able to cause the bankruptcy of a company, as set forth in article 223, paragraph 2, no. 2, of the Italian Insolvency Act. The said t...

Registration tax: when a business unit is transferred, goodwill is to be considered even if negative

The Court of Cassation, with Judgment no. 979 filed on 17th January 2018, has stated that, where a business unit is transferred, the value of goodwill, for registration tax purposes, is to be considered not only when it is positive, but also when it is negative.   In the case at issue, the parties involved in the transfer of a business unit had agreed on a price which was lower than th...

Impediment to control: a director not attending a company’s meeting is not punishable

Article 2625 of the Italian Civil Code punishes those directors who, by hiding the company’s documents or by means of other artifices, hinder or impede the execution of controls and inspections to be carried out by the shareholders. With Judgment no. 2310 filed on 21st November 2017, the Court of Cassation has confirmed that the conduct of a director who does not attend a company’s ...

Public procurements: a connection between undertakings is to be deduced from unambiguous elements

The “Consiglio di Stato”, with Judgment no. 58 filed on 4th January 2018, has established that the burden of proving a connection between undertakings participating in a procedure is on the contracting authority and on who claims the existence of that connection. The “Consiglio di Stato” has then recalled that such a connection undermines the principle of secrecy of tenders and ...

The preventive seizure of a school not complying with anti-seismic rules is valid

With Judgment no. 190 of 8th January 2018, the Court of Cassation has annulled the revocation of a preventive seizure (“sequestro preventivo”) of a school which, even if not complying with the requirements set forth in the anti-seismic legislation, had not been closed by the Mayor, then accused of omission to perform his duty. With regard to this, the Court has deemed irrelevant tha...

A framework contract on investment services is binding even if signed by the investor only

With Sentence no. 898 of 16th January 2018, the Court of Cassation in plenary session has observed that the requirement of the written form prescribed by article 23 of Legislative Decree no. 58/1998, refers to framework contracts related to investment services and not to any single investment or disinvestment service. The Court has then stated that the said requirement is certainly sati...

An undertaking can be excluded from a procurement procedure if its offer contains a false statement

With Judgment no. 11161 of 11th November 2017, the TAR Lazio has ruled that a contracting authority can exclude an undertaking from a procurement procedure if the offer filed by that undertaking contains a false statement. In particular, the Jury had ascertained that, contrary to what had been declared in the offer, an essential requirement was lacking in the product of that participant...