News - Page 6 of 39 - Studio Legale Mazza

28 April 2023

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Administrative, Non-contractual Liability of the Administration, Council of State, Section VII, Judgment n. 3094 of 03/27/2023

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Civil liability - Damages in administrative matters - Compensation for damages - Prerequisites The liability of the public administration for the illegitimate exercise of the public law function is of a non-contractual nature, since it cannot, in fact, be configured as a mandatory relationship in the context of an administrative procedure because: in the administrative procedure, unlike the compulsory relationship, there are two active situations, i.e. the power of the public administration and the legitimate interest of the private individual; the relationship between the parties is not equal, but one of supremacy of the administration. Compensation can be recognized if the illegitimate exercise of...

29 March 2023

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Contract in general, Contractual autonomy, Leasing contract, Worthiness of protection of interests, Standards, Civil Cassation, United Sections, Judgment n. 5657 dated 02/23/2023

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Worthiness of protection of interests - Evaluation - Standards - Leasing - Determination of the rent with indexation clause to a financial rate and to an exchange rate - Unworthy - Exclusion - Nature of implicit derivative financial instrument - Exclusion. Article 1322, paragraph 2, of the Italian Civil Code; Legislative decree no. 58 of 1998, Consolidated Law on Finance - TUF; Article 363, paragraph 3, of the Code of Civil Procedure (principle formulated in the interest of the law) The United Civil Sections, deciding on a matter of particular importance, have affirmed the following principles: a) the judgment of "undeservingness" pursuant to...

02 March 2023

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Obligation, Action for unjustified enrichment, subsidiarity prescribed by art. 2042 of the Italian Civil Code, Civil Cassation, Third Section, Interlocutory Ordinance no. 5222 dated 02/20/2023

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Residuality - Concept - Absence of actions deriving from the contract or provided for by law - Consequence - Admissibility of the request for enrichment in the event of an action hypothetically available on the basis of general clauses. With regard to the action of unjustified enrichment, the Third Civil Section referred to the First President, for possible assignment to the United Sections, the question concerning the interpretation of the subsidiarity rule prescribed by art. 2042 of the civil code and, in particular, about the correctness of the jurisprudential orientation that identifies this assumption of the action pursuant to art. 2041...

03 February 2023

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Criminal law, Sanctions treatment, Calculation, Cassation, Fifth criminal section, Judgment n. 44676 of 11/24/2022

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Passim The method followed by the Territorial Court to calculate the penalty is in open contrast to the teaching of this Regulatory Court, according to which, in order to determine the penalty for an attempted aggravated offence, it is necessary: a) preliminarily identify the statutory framework relating to the case in question, taking into account all the aggravating circumstances considered in the specific case; b) determine, in relation to this, the statutory framework of the attempted detailed crime, applying art. 56 code pen.; c) commensurate, within this last statutory framework, the penalty to be imposed concretely, specifying the base penalty and the increases applied...

22 December 2022

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Criminal law, Proof, Evidence and conjectures, Cassation, Sixth Criminal Section, Judgment n. 48581 of 12/21/2022

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Passim The qualification of the circumstantial compendium (the distinction between conjectures and clues) and thus the limits of the power of verification referred to the Court of Cassation in this matter, not without noting that the distinction between clues and conjectures is well known both in the epistemological field and in the jurisprudence of legitimacy. It is clearly stated that in contrast to the "indications", susceptible to evaluation pursuant to art. 192, paragraph 2, of the Italian Civil Code. proc. pen. and which constitute known factual elements from which to infer, in an inferential way, the unknown fact to be proved on...

21 December 2022

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Criminal law, Crimes of association, Program and Agreement, Cassation, Second Criminal Section, Judgment n. 45575 of 10/14/2022

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Passim In this regard, it should be recalled that this Court (Sect. 5, n. 1964 of 7/12/2018, Rv. 274442 - 01) is firm in holding that the distinctive element between the crime of criminal association and the conspiracy of persons is identifiable in the nature of the criminal agreement, which in the competition takes place in a purely occasional and accidental way, being aimed at the commission of one or more crimes with the realization of which the agreement ends and any cause for social alarm ceases, while in the crime associative is aimed at the implementation of a wider criminal...

01 December 2022

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Criminal law, Real precautionary measures, Preventive seizure, Derivative credits pursuant to art. 121, paragraph 1, lett. b), law decree no. 34 of 2020 (subject of the so-called “superbonus” 110%), Cassation, Third Criminal Section, Judgment n. 40865 of 10/28/2022

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Possibility – Subsistence. The Third Criminal Section stated that: the credits of third party assignees pursuant to art. 121, paragraph 1, lett. b), law decree 19 May 2020, no. 34, converted, with amendments, by law 17 July 2020, n. 77 (subject of the so-called "superbonus" 110%), given that the same, deriving from the right to deduct the tax due to the client of the works, constitute things pertinent to the crime; the subjective condition of said third parties is not relevant, in compliance with the criminal procedure rules, which are not derogated from the discipline in question. Source Supreme Court of Cassation...

24 November 2022

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Copyright, Protection, Creativity and Originality Requirements, Civil Cassation, First Section, Order n. 32871 of 08/11/2022

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Passim Articles 64 bis, ter and quater, l.a. The protection of copyright postulates the requirement of originality, therefore it is necessary to establish whether or not the program is the result of an original creative elaboration with respect to previous works, it being understood that creativity and originality exist even when the work is composed of simple ideas and notions, included in the intellectual heritage of people having experience in the subject matter of the work itself, provided that they are formulated and organized in a personal and independent way with respect to the previous ones. The concrete consistency of this autonomous contribution...

18 November 2022

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Bank contracts, Mortgage loan, Fundability limit, Essential element, Rule on the setting of the limit, Nature, Civil Cassation, United Sections, Judgment n. 33719 of 11/16/2022

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Article 38, paragraph 2, of Legislative Decree no. 385 of 1993. Mortgage loan - Financing limit pursuant to art. 38, paragraph 2, of Legislative Decree no. 385 of 1993 - Essential element of the land loan - Exclusion - Foundation - Rule on the fixing of the limit - Mandatory nature - Exclusion - Reasons. The United Civil Sections, deciding on a matter of contrast and of principle of particular importance, affirmed: that in terms of land loans, the limit of financeability pursuant to art. 38, paragraph 2, of Legislative Decree no. 385 of 1993, is not an essential element of the...

14 November 2022

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Joint-stock company, Demerger project, Civil Cassation, First Section, Interlocutory Ordinance no. 32365 of 11/03/2022

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Company - Joint stock companies - Demerger project - Joint and several liability of the beneficiary companies pursuant to art. 2506 bis, paragraph 3 of the Italian Civil Code - Liabilities with destination not deducible from the project - Liability for environmental damage - Harmful consequences that cannot be determined at the time of the demerger and occurred after the same - Inclusion among the liability items - Compatibility with art. 3 of the VI Council Directive 82/8912 / EEC - Referral for a preliminary ruling to the EU Court of Justice. The First Civil Section ordered the preliminary referral to...