HR Consultancy

DURC: new system officially started

The new system of internal DURC (“Documento Unico di Regolarità Contributiva”), through which the INPS (“Istituto Nazionale della Previdenza Sociale”) ensures the regular payment of social security contributions by the employer, officially started. 

These days, in fact, the companies have started to receive by certified e-mail (PEC) an invitation to stabilize any irregularity within 15 days.

Fixed term employment contract: fines replace reinstatement

The Ministry of Labour announced the forthcoming approval of a circular letter aimed to remove the main doubts concerning the Labour reform enacted through the Jobs Act converted into Law no. 78/2014.

In particular the Ministry of Labour will confirm that the fine provided for the employers, in case of exceeding the limit of 20% of hiring on a fixed term basis, has to be deemed as replacing the conversion of the fixed term employment contracts into open ended ones.

Competition, EU and regulatory

European Commission adopts a revised General Block Exemption Regulation (GBER) for state aid

On 21 May 2014 the European Commission adopted in principle the new Regulation that sets out the categories of aid and the conditions under which aid measures can benefit from an exemption. The new legislation, which will be formally adopted by publication on the Official Journal, is part of the State Aid Modernisation (SAM). In order to reduce administrative burden on Member States, the new GBER provides higher exemption thresholds for many measures and simplified conditions to benefit from the exemptions. Based on 2012 data, the Commission estimates that about 3/4 of today's state aid measures and some 2/3 of aid amounts will be exempted under the revised GBER.

Financial Service Disputes & Investigations

The freedom of information legislation can override confidentiality clauses in settlement agreements

The Administrative Court of Piemonte has just held that the freedom of information legislation under article 22 of Law no. 241 of 1990 (art.22 L. 241/90) can be used to override the confidentiality clause in a settlement agreement so that a third party with a legal interest in the settlement can access and view the terms of the settlement agreement. 

Intesa San Paolo and Merrill Lynch International entered into a settlement agreement with Regione Piemonte in 2013 in connection with a derivative swap contract to hedge a substantial bond in 2007. Dexia Crediop s.p.a also entered into a  similar swap contract but did not settle with Regione Piemonte and is currently litigating the swap contract in the English courts. Dexia requested copies of the settlement agreements on the basis that the issues on which Regione Piemonte settled with the other two banks are similar to those in Dexia’s dispute.

The Court held that:

  1. Under art. 22 L. 241/90 and the recent Legislative Decree no.33 of 2013 (Dec. 33/2013), public authorities are subject to transparency requirements. Therefore all administrative documents that are held by a public authority and that concern activities of public interest, regardless of their public or private nature, are public. 
  2. The protection of commercial confidentiality of a private sector operator cannot override the public interest and transparency obligations further to Dec. 33/2013.  
  3. Where access to public documents interferes with the privacy of third parties, the applicant to the information needs to demonstrate that the information is necessary to safeguard or defend its legal interests in order to override the privacy rights of third parties.

The Court distinguished the rights of ordinary citizens’ access to information on the general activities of a public authority and clarified that the party seeking to access commercially confidential documents needs to demonstrate that there is a necessity and the information is relevant and connected to their situation.

Administrative Court of Piedmont, 23 May 2014, no. 932

Bankruptcy

Declaration of bankruptcy of a company cancelled from the Companies’ Registrar

The cancellation of a winded-up company from the Companies’ Registrar has the effect to extinguish said entity (section 2495 of the Italian Civil Code).  Nonetheless, the company can be declared bankrupt within one year following the cancellation from the Companies’ Registrar, provided that the insolvency status of the company is revealed during the same period (i.e. before the cancellation of the company from the Companies’ Registrar or in the following year) (section 10 of Italian Bankruptcy Law). The appointed receiver (“liquidatore”) of the company is entitled to appear in the proceedings for the declaration of bankruptcy as legal representative of the company.

Supreme Court, 16 May 2014, no. 10777