News – Law Firm Mazza

27 October 2023

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Administrative, Cultural, landscape and environmental heritage, Superintendency, Landscape authorization, Silence assent, Council State, Sec. IV, 02 October 2023 Judgment no. 8610

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On the applicability of silent consent referred to in art. 17-bis l. n. 241 of 1990 also to the opinion given by the Superintendence Section IV highlighted that: a) the institution of horizontal silence assent is also applicable to the opinion of the Superintendence; b) the opinion of the Superintendence given late in the context of a services conference is tamquam non esset; c) the text of the law, especially when formulated through the so-called technique for analytical cases, provides the measure of judicial discretion; it, as has been authoritatively observed, represents the fixed point from which it is necessary to move on in...

28 September 2023

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Administrative, Public health, Accreditation, Motivation, Selective procedure, TAR Napoli, section I, 08 May 2023 Judgment n. 2806

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On the reasons for the denial of accreditation Since the accreditation attributes to its holder a competitive function of added value compared to other private operators, the denial of the relevant application cannot be based only on the detected saturation of the requirement, given that this saturation may depend on completely temporary contingencies and cease shortly after the denial, allowing the acceptance of a similar request subsequently presented by another operator; a periodically renewed evaluation is therefore necessary and open to comparison, between those who are already accredited and those who aspire to be so (1). Compliant: T.a.r. for Sicily, Catania, sec....

19 June 2023

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Industrial property, Use of the trademark, Civil Cassation, First Section, Order n. 15903 of 06/06/2023

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Art. 24 of the Italian Criminal Code. Use of the trademark and the Court of Justice 11 March 2003, Ansul, C‐40/01, par. 43 Passim The art. 24, paragraph 3, IPC provides that, except in the case of rights acquired on the trademark from third parties with filing or use, revocation cannot be enforced if between the expiry of the five-year period of non-use and the filing of the application or objection to revocation 'genuine use' of the trade mark has begun or resumed. As taught by the Court of Justice regarding the revocation of the trademark for non-use, in verifying the "genuine use"...

19 June 2023

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Intellectual Property, Copyright; Exercise of the economic exploitation rights of the cinematographic work, Civil Cassation, First Section, Ordinance n. 14596 of 05/25/2023

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Article 45 of the Law Passim Reiterated the following principle of law (already stated by Court of Cassation n. 14117 of 2023): «In terms of intellectual property, art. 45 of the LdA, in providing that the "producer" is entitled to exercise the rights of economic use of the cinematographic work, establishes a presumption that is valid until proven otherwise, assuming that the "producer" ensures in advance from the authors (of the "subject" , of the "screenplay" and of the "music") the cinematographic exploitation rights of the work for the entire duration of the right of economic use due to the author, in...

31 May 2023

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Town Planning and Public Works Contract, Executive Phase of Public Works Concessions, Civil Cassation, First Section, Interim Ordinance no. 8054 of 03/21/2023

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Articles 33 and 34 of Legislative Decree 31 March 1998, n. 80, as well as of the art. 31-bis of law no. 109 of 1994. Urban planning and public works contracts - Distinctive principles - Executive phase of public works concessions - Request for compensation for higher costs - Jurisdiction - Identification. The First Civil Section has ordered, pursuant to art. 374, paragraph 1, of the Code of Civil Procedure, the transmission of the appeal to the First President for the possible assignment to the United Sections of the following question relating to the division of jurisdiction - in the light of...

28 April 2023

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Civil liability, Supplier’s liability, Brand coinciding with that of the Manufacturer, Civil Cassation, Third Section, Interlocutory Ordinance n. 6568 dated 06/03/2023

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Liability for damage from defective products - Supplier's liability pursuant to art. 4 d.p.r. no. 224 of 1988 (now art. 116 of Legislative Decree no. 206 of 2005) - Prerequisites - Supplier with name, trademark or other distinctive sign coinciding in whole or in part with that of the manufacturer - Sufficiency - Material affixing on the product such signs - Necessity - Reference for a preliminary ruling to the CJEU pursuant to art. 267 TFEU. The Third Civil Section, in terms of liability for damage from defective products, has ordered the reference for a preliminary ruling to the CJEU, pursuant...

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...