News – Law Firm Mazza

17 November 2018

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Administrative, Town planning, Regulatory Plan, Variant, Observation of private individuals, Specific motivation, Tar Bari, section III, 09 November 2018 n. 1466

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Reason for rejection of the observations presented by the owner of an area engraved by urban variant There is no burden of detailed reasons for the rejection of the observations presented by the owner of an area affected by urban variant in the absence of situations (source of expectations or expectations in favor of subjects whose positions appear worthy of specific considerations) exceptionally impose to the proceeding Administration a more incisive and singular motivation of the general urban planning instruments (1). 1) He clarified the Section - recalling the jurisprudence of the Council of State (Section IV, 9 December 2010, No. 8682)...

05 November 2018

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Banking Law, current account contract with credit initiation, quarterly capitalization clause of compound interest, invalidity, action for repetition of overpayments, interim order no. 27680 of 30/10/2018, First Supreme Court Court of Cassation

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Prescription - Method of formulating the exception Significant contrast on how to formulate the limitation exception raised by the bank Articles 2938, 2697, 2727 c.c The first civil section has referred the acts to the First President for the possible assignment to the United Sections, for the purpose of the composition of a marked contrast on the formulation of the exception prescription raised by the bank when the account holder requests the return of sums unduly paid , and in particular if the limitation exception, to be validly proposed, should also contain the attachment of the single remittances having a solvent nature made...

17 October 2018

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Administrative, Contracts of the Public Administration, Temporary grouping of companies, Service contract, Tar Bari I October 2018, n. 1250

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Public Administration contracts - Temporary grouping of companies - Service contract - Special participation requirements - Cumulative grouping - Possibility. Service performed by performers without the requirement provided that this is cumulatively owned by the grouping Discretion of the contracting authority In relation to tender procedures for the assignment of services in which temporary groupings of companies participate, the possession of special requirements for participation "may", but not "must" attest to a minimum threshold, being the choice left to the discretion of the contracting authority, with the consequence that in the event of failure to define the minimum threshold by the contracting authority,...

17 October 2018

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Administrative, Contract, Jurisdiction, Compensation for damages, Pre-contractual liability, Tar Milano section III, 12 October 2018 n. 2267

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Of the bidder who involved the contracting authority in unnecessary negotiations, Jurisdiction ordinary judge, pre-contractual liability of the bidder Liability pursuant to articles 1337, 1338, 2043 c.c. The claim for damages filed by the Administration, claiming the pre-contractual responsibility of the private for the damages suffered as a consequence of the involvement in negotiations proved useless - having participated in a tender without checking, as well as elements that had already to be known or knowable, the possibility of contractually engaging - falls outside the jurisdiction of the court seised, falling within that of the ordinary judge (1). (1) It has clarified the...

06 October 2018

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Business Contracts, Sale and Purchase, Building Shares, Guarantee for defects, Interlocutory Order no. 23857 of 02/10/2018, Second Supreme Court of Cassation

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Articles 1492, paragraph 1, of the Italian Civil Code, 1495, paragraph 3, of the Italian Civil Code, 2943 et seq. cc, Difficult orientations of this Court Cassation, Second Section, September 10th 1999, n. 9630 and others as opposed to Cassation December 3rd 2003, n. 18477, Court of Cassation, September 27th 2007 n. 20332, Court of Cassation, Second Chamber, 04 September 2017 n. 20705. The Sec. II has referred to the First President's examination, for the evaluation of the possible assignment to Sections. U, the following important question of particular importance: "if, following the qualification of the guarantee institute for defects in the sale,...

06 October 2018

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Financial, MiFID II, New Intermediaries Regulation, Investment Companies, Requirements for knowledge and skills of Intermediaries staff, Application Guidelines, 05/10/2018, Consob

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Article 25 (1) of Directive 2014/65 / EU (MiFID II) Safeguarding the competitive position of Italian industry and the objective of investor protection. On 17 December 2015, ESMA published the Guidelines for the assessment of knowledge and competence ("Guidelines"), as required by Article 25 (1) of Directive 2014/65 / EU (MiFID II), in order to to further detail the obligation for investment firms to ensure that their employees, who provide information or advice to customers on investment in financial instruments, have adequate knowledge and skills. The aforementioned Guidelines are aimed at encouraging convergence in the implementation of Article 25 of MiFID II, although...

06 October 2018

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Business Contracts, Insurance Contract, Damage, “made-based claims” clauses, Judgment n. 22437 of the 24/09/2018 – 05/10/2018, Sec. U, Supreme Court of Cassation

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Artt. 1917, paragraph 1, c.c., 1322, paragraph 2, c.c. Phase preceding the conclusion of the contract and implementation phase of the relationship The Sec. U, on a matter of particular importance, have affirmed that the model of liability insurance with clauses on "made basis claims", is a participant of the type of insurance against damages, as a derogation permitted by art. 1917, paragraph 1, c.c., not affecting the insurance function the mechanism of operation of the policy linked to the claim for compensation of the third party damaged communicated to the insurer. It follows that, compared to the single contract, a control of...

06 October 2018

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Competition, International Best Practices and Antitrust Compliance Guidelines, 05/10/18, Competition Authority

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The guidelines in line with international best practices Value of competition as an integral part of corporate culture The definitive adoption of the Guidelines was preceded by a phase of public consultation. On 25 September 2018, the Authority adopted the Antitrust Compliance Guidelines, aimed at providing businesses with an orientation regarding: i) definition of the content of the compliance program; ii) the request for evaluation of the program for the purpose of recognizing any mitigating factor; is iii) the criteria that the Authority intends to adopt in the assessment for the recognition of the mitigating factor. In particular, the Guidelines define, in line with international best practices,...

03 October 2018

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Tax, Shareholder Loans and all other Capitalization Forms, Order no. 19613 of 24 – 26/07/2018, Fifth section of the Supreme Court of Cassation

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Art. 38, paragraphs 4 and 5, of the Italian Ministerial Decree n. 600 of 1973 Assessment of the tax base - Inductive or summary assessment - Expenses for capital increases - Definition - In this case. The Sec. T., with regard to the summary determination of the taxpayer's total income, stated that, pursuant to art. 38, paragraphs 4 and 5, of the Italian Ministerial Decree n. 600 of 1973, "expenditure for capital increases" means any disbursement made for this purpose, so that capital increases also include shareholder loans and all other forms of capitalization, to be considered expenses for which there has...

03 October 2018

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Arbitration, Appeal for invalidity of the arbitration award, Concept of “prospective overruling”, Hermetic question of the art. 829, paragraph 3, of the Italian Civil Code, interlocutory order no. 20472 dated 02-03 / 08/2018, First section Supreme Court of Cassation

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Art. 829, paragraph 3, c.p.c, art. 27 of the legislative decree n. 40 of 2006, Court of Constitution no. 13 of 2018 IMPROVEMENT FOR THE INVALIDITY OF THE ARBITRATION OF THE ARBITRATION - HISTORY OF ART. 829, COMMA 3, C.P.C., AS A NOVELLATO DALL'ART. 24 D.LGS. N. 40 OF 2006 - EXTENSION OF THE CONCEPT OF "PROSPECTIVE OVERRULING" - APPLICATION OF THE GENERAL PROVISION ON THE REIMBURSEMENT IN TERMS FOR "NON IMPUTABLE CAUSE" OF THE DECADENCE - MAXIMUM QUESTIONS OF PARTICULAR IMPORTANCE. With regard to the appeal for invalidity of the arbitration award, the Sec. 1 has ordered the transmission of the...