International agency agreements under Italian law

12 febrero 2019

Italia

Agencia
Contratos de distribución

According to the article 20 of the Italian Code of Intellectual Property, the owner of a trademark has the right to prevent third parties, unless consent is given, from using:

any sign which is identical to the trademark for goods or services which are identical to those for which the trademark is registered;
any sign that is identical or similar to the registered trademark, for goods or services that are identical or similar, where due to the identity or similarity between the goods or services, there exists a likelihood of confusion on the part of the public, that can also consist of a likelihood of association of the two signs;
any sign which is identical with or similar to the registered trademark in relation to goods or services which are not similar, where the registered trademark has a reputation in the Country and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trademark.

Similar provisions can be found in art. 9, n. 2 of the EU Regulation 2017/1001 on the European Union Trademark, even if in such a case the provision concerns trademarks that have a reputation.

The first two hypotheses concern the majority of the brands and the conflict between two signs that are identical for identical products or services (sub a), so-called double identity, or between two brands that are identical or similar for identical or similar products or services, if due to the identity or similarity between the signs and the identity or affinity between the products or services, there may be a risk of confusion for the public (sub b).

By «affinity» we mean a product similarity between the products or services (for example between socks and yarns) or a link between the needs that the products or services intended to satisfy (as often happens in the fashion sector, where it is usual for example that the same footwear manufacturer also offers belts for sale). It is not by chance that, although the relevance is administrative and the affinity is not defined, at the time of filing the application for registration of a trademark, the applicant must indicate the products and / or services for which he wants to obtain the protection choosing among assets and services present in the International Classification of Nice referred to the related Agreement of 1957 (today at the eleventh edition issued on 01.01.2019). Indeed, following the leading IP Translator case (Judgment of the EU Court of Justice of 19 June 2012, C-307/10), the applicant is required to identify, within each class, the each good or service for which he invokes the protection, so as to correctly delimit the protection of the brand.

Beyond the aforementioned ordinary marks, there are some signs that, over time, have acquired a certain notoriety for which, as envisaged by the hypothesis sub c), the protection also extends to the products and / or services that are not similar (even less identical) to those for which the trademark is registered.

The ratio underlying the aforementioned rule is to contrast the counterfeiting phenomenon due to the undue appropriation of merits. In the fashion sector, for example, we often see counterfeit behaviors aimed at exploiting parasitically the commercial start-up of the most famous brands in order to induce the consumer to purchase the product in light of the higher qualities – in the broad sense – of the product.

The protection granted by the regulation in question is therefore aimed at protecting the so-called «selling power» of the trademark, understood as a high sales capacity due to the evocative and suggestive function of the brand, also due to the huge advertising investments made by the owner of the brand itself, and able to go beyond the limits of the affinity of the product sector to which the brand belongs.

In fact, we talk about «ultra-market» protection – which is independent of the likelihood of confusion referred to in sub-letter b) – which can be invoked when certain conditions are met.

First of all, the owner has the burden of proving that his own sign is well-known, both at a territorial level and with reference to the interested public.

But what does reputation mean and what are the assumptions needed? In the silence of the law, the case law, with the famous General Motors ruling (EC Court of Justice, 14 September 1999, C-375/97) defined it as «the sign’s aptitude to communicate a message to which it is possible linking up also in the absence of a confusion on the origin», confirming that the protection can be granted if the trademark is known by a significant part of the public interested in the products or services it distinguishes.»

According to the Court, among the parameters that the national court must take into account in determining the degree of the reputation of a mark are market share, intensity, geographical scope and duration of its use, as well as the investments made by the company to promote it.

Of course, the greater the reputation of the brand, the greater the extension of the protection to include less and less similar product sectors.

The relevant public, the Court continues, «is that interested in this trademark, that is, according to the product or service placed on the market, the general public or a more specialized public, for example, a specific professional environment».

Furthermore, the reputation must also have a certain territorial extension and, to this purpose, the aforesaid decision specified that the requirement met if the reputation is spread in a substantial part of the EU States, taking into account both the size of the area geographical area concerned as well as the number of persons present therein.

For the EU trademark, the Court of Justice, with the decision Pago International (EC Court of Justice, 6 October 2009, C ‑ 301/07) ruled that the mark must be known «by a significant part of the public interested in the products or services marked by the trademark, in a substantial part of the territory of the Community» and that, taking into account the circumstances of the specific case, «the entire territory of a Member State» – in this case it was Austria – «can be considered substantial part of the territory of the Community». This interpretation, indeed, is a consequence of the fact that the protection of an EU trademark extends to the whole territory of the European Union.

In order to obtain the protection of the renowned brand, there is no need for the similarity between the signs to create a likelihood of confusion. However, there must be a connection (a concept taken up several times by European and national jurisprudence) between the two marks in the sense that the later mark must evoke the earlier one in the mind of the average consumer.

In order to be able to take advantage of the «cross-market» protection, the aforementioned rules require the trademark owner to be able to provide adequate evidence that the appropriation of the sign by third parties constitutes an unfair advantage for them or, alternatively, that damages the owner himself. Of course, the alleged infringer shall be able to prove his right reason that, as such, can constitute a suitable factor to win the protection granted.

Moreover, the owner of the trademark is not obliged to prove an actual injury, as it is sufficient, according to the case law, «future hypothetical risk of undue advantage or prejudice«, although serious and concrete.

The damage could concern the distinctiveness of the earlier trademark and occurs, «when the capability of the trademark to identify the products or services for which it was registered and is used is weakened due to the fact that the use of the later trademark causes the identity of the earlier trade mark and of the ‘corresponding enterprise in the public mind».

Likewise, the prejudice could also concern the reputation and it occurs when the use for the products or services offered by the third party can be perceived by the public in such a way that the power of the well-known brand is compromised. This occurs both in the case of an obscene or degrading use of the earlier mark, and when the context in which the later mark is inserted is incompatible with the image that the renowned brand has built over time, perhaps through expensive marketing campaigns.

Finally, the unfair advantage occurs when the third party parasitically engages its trademark with the reputation or distinctiveness of the renowned brand, taking advantage of it.

One of the most recent examples of cross-market protection has involved Barilla and a textile company for having marketed it cushions that reproduced the shapes of some of the most famous biscuits, marking them with the same brands first and then, after a cease and desist letter, with the names of the same biscuits with the addition of the suffix «-oso» («Abbraccioso», «Pandistelloso», etc.). Given the good reputation acquired by the brands of the well-known food company, its brands have been recognized as worthy of the aforementioned protection extended to non-related services and products. The Court of Milan, in fact, with a decision dated January 25, 2018, ruled, among other things, that the conduct perpetrated by the textile company, attributing to its products the merits of those of Barilla, has configured a hypothesis of unfair competition parasitic for the appropriation of merits, pursuant to art. 2598 c.c. The reputation of the word and figurative marks registered by Barilla, in essence, has allowed protecting even non-similar products, given the undue advantage deriving from the renown of the sign of others.

The author of this article is Giacomo Gori.

Put options on a fixed price are all clear: the Italian Supreme Court confirms the legitimacy of the repurchase agreements regarding company shares (i.e. the agreement by which the buyer undertakes to resell the shares at a later time, upon the occurrence of certain conditions, upon simple request of the seller) without any participation in the occurred losses, and admits that such cases may pass the test for the leonina societas (under Italian law a permanent and total exclusion of some partners from participation in profits and losses is prohibited).

Those who intend to invest, instead of opting for a funding, may become part of the company structure through the acquisition of a participation in the share capital and, at the same time, insure oneself a safe way out.

To avoid suffering any negative outcomes, the silent partner may, through a shareholders’ agreement, agree with the founders of the company his exit through the sale of the equity investment at a given time, under certain circumstances and at the price of purchase. Indeed, there could be room for profit too: the put option, in fact, may include interests in the agreed price of repurchase.

Focus on this new corporate instrument is recommended. It could favour numerous strategic alliances between financiers and entrepreneurs looking for capital.

The author of this article is Giovannella Condò.

When should an agency agreement be considered “international”?

Pursuant to the international private rules applicable in Italy (Art.1 Reg. 593/08 “Rome I”) an agreement is deemed “international” in the presence of “situations involving a conflict of laws”.

The situations which more often involve a conflict of laws in agency agreements– making them “international” – are (i) the principal’s seat being located in a country different from the agent’s seat country; or (ii) the agreement being performed abroad, even when the principal’s and the agent’s seats are both located in the same country.

When does Italian law apply to an agency agreement?

Under the “Rome I” Regulation, in principle Italian law may apply to an international agency agreement (i) if it is chosen by the parties as the law governing the agreement (either expressly, or as otherwise allowed by Art.3); or (ii) absent any choice of law, when the agent has its residence or seat in Italy (according to the “residence” concept under Article 19).

What are the main regulations of agency agreements in Italy?

The substantial regulations of agency agreements in Italy, with particular regard to the principal-agent relationship, can be found mainly in articles from 1742 to 1753 of the Civil Code. Such rules have been repeatedly modified following the adoption of the Directive 653/86/EC.

What is the role of the collective bargaining agreements?

Since many years, collective bargaining agreements (CBAs) have also been regulating agency agreements. These are agreements made on a regular basis between the associations representing principals and agents in different sectors (manufacture, trade and several others).

From a legal effectiveness perspective, a distinction can be drawn between two types of CBAs, i.e. CBAs having the force of law (effective “erga omnes”) – whose rules are however quite broad and thus have a limited scope of application – and CBAs of a contractual nature (“di diritto comune”) that have been signed from time to time over the years, and are meant to bind only those principals and agents which are members of those associations.

In general, CBAs intend to implement the Civil Code rules and those of the Directive 653/86. However, contractual CBAs often deviate from those rules, and some deviations are substantial. For example, CBAs allow a principal to unilaterally modify the agent’s territory, the contractual products, the range of customers, the commission. CBAs determine in a partially different manner the duration of the notice period when indefinite term agreements are terminated. CBAs have their own calculation of the agent’s remuneration for the post-contractual non-competition covenant. CBAs have peculiar regulations concerning the termination indemnity.

With particular regard to the contract termination indemnity, there have been serious issues of compliance between the CBAs and the Directive 653/86/CE. Indeed, such issues still remain unsolved despite some rulings from the EUCJ, because the Italian courts’ constant jurisprudence keeps the CBAs’ indemnity provisions in force.

According to the majority of scholarly opinions and case law, CBAs’ geographical scope of application is limited to the Italian territory.

Therefore, CBAs automatically apply to agency agreements which are governed by Italian law and are performed by the agent in Italy; but – in case of contractual CBAs – subject to the further condition that both parties are members to associations that entered into such Agreements. According to some scholars, it is sufficient that the principal alone is a member of such an association.

Even in the absence of such cumulative conditions, however, contractual CBAs may nonetheless apply if they are expressly referred to in the agency agreement, or their provisions are constantly complied with by the parties.

What are the other main requirements in agency agreements?

The “Enasarco”

Enasarco is a private law Foundation with which agents in Italy must be registered by law.

The Enasarco Foundation mainly administers a supplementary pension fund for agents, and a termination indemnity fund, called “FIRR” (referring to the termination indemnity as calculated in accordance with the criteria set forth by the CBAs in the different sectors).

Typically, a principal in a “domestic” agency agreement registers the agent with the Enasarco and pays contributions to both the above funds on a regular basis throughout the whole term of the agency agreement.

However, while registration and contribution to the pension fund are always mandatory as they are provided for by the law, contributions to the FIRR are instead mandatory only for those agency agreements which are governed by contractual CBAs.

Which rules apply to international agency agreements?

As far as registration with the Enasarco is concerned, the law and regulatory provisions are not so clear. However, important clarifications were provided by the Ministry of Labor in 2013 answering to a specific question (19.11.13 n.32).

Making reference to the European legislation (EC Regulation n.883/2004 as amended by Regulation n. 987/2009) the Ministry stated that registration with the Enasarco is mandatory in the following cases:

agents operating in the Italian territory, in the name and on behalf of Italian or foreign principals having a seat or an office in Italy;
Italian or foreign agents operating in Italy in the name and/or on behalf of Italian or foreign principals with or without a seat or office in Italy;
agents residing in Italy and performing a substantial part of their activities in Italy;
agents not residing in Italy, but having their main center of interest in Italy;
agents habitually operating in Italy, but performing their activity exclusively abroad for a period not exceeding 24 months.

The above-mentioned Regulations obviously do not apply to those agency agreements that are to be performed outside the EU. Therefore, it should be checked case by case whether any international treaties binding the parties’ countries provide for the application of the Italian social security legislation.

Chamber of Commerce and Register of Businesses

Anyone wanting to start a business as a commercial agent in Italy, must file a “SCIA” (Certified Notice of Business Start) with the Chamber of Commerce having local jurisdiction. The Chamber of Commerce then registers the agent with the Register of Businesses if the agent is organized as a business entity, otherwise it registers the agent with a special section of the “REA” (List of Business and Administrative Information) of the same Chamber (see Legislative Decree n.59 dated 26.3.2010, implementing the Directive 2006/123/EC “Services Directive”).

Such formalities have replaced the former registration to the agents’ roll (“ruolo agenti”) which was abolished by said law. The new law also provides for a number of other mandatory requirements for agents wishing to start an activity. Such requirements concern education, experience, clean criminal records, etc.

Although failure to comply with the new registration requirements does not affect the validity of the agency agreement, a principal should nevertheless check that the Italian agent is registered before appointing him, as this is a mandatory requirement anyway.

Venue for disputes (art.409 and following of the Civil Procedure Code)

Pursuant to Article 409 and following of the Civil Procedure Code, if the agent mainly performs its contractual duties as an individual even if independently (so-called “parasubordinato” i.e. “semi-subordinate” agent) – provided the agency agreement is governed by Italian laws and Italian courts have jurisdiction – any disputes arising from the agency agreement shall be submitted to the Labor Court in the district where the agent is domiciled (see article 413 of the CPC) and the court proceedings shall be conducted according to procedural rules similar to those applicable to employment-related disputes.

In principle, said rules shall apply when the agent enters into the agreement as an individual or sole entrepreneur, while according to the majority of scholars and jurisprudence they do not apply when the agent is a company.

Applying the rules above to the most common situations in international agency agreements

Let’s now try to apply the rules described until now to the most frequent situations in international agency agreements, keeping in mind that those below are simple examples, while in the “real world” one should carefully check the circumstances of each specific case.

Italian principal and foreign agent – agreement to be performed abroad

Italian law: it governs the agreement if chosen by the parties, without prejudice to any public policy (internationally mandatory) rules in the country where the agent has its residence and performs, pursuant to the Rome I Regulation.

CBAs: they do not govern the agreement automatically (because the agent performs abroad) but only when they have been expressly referred to in the agreement, or de facto applied. This could happen more or less intentionally, for example when an Italian principal uses with foreign agents the same contract forms as with Italian agents, which usually include many references to the CBAs.

Enasarco: typically, there are no registration or contribution obligations in favor of a non-Italian agent whose residence is abroad and performing his contractual duties only abroad.

Chamber of Commerce: there is no obligation to register in the above circumstances.

Procedural rules (article 409 and following, CPC): if Italian courts are properly chosen as the jurisdiction for all disputes, a foreign agent even if being an individual or sole entrepreneur may not take advantage of this provision to move the case to the courts of his own country. This is because art.413 cpc is a domestic provision on venue which presupposes the agent’s seat to be in Italy. Further, the jurisdiction rules set forth by the EU legislation should prevail, as was ruled by the Italian Court of Cassation and stated by important scholars.

Foreign principal and Italian agent – agreement to be performed in Italy

Italian law: it governs the agreement if chosen by the parties or, even in the absence of any choice, as an effect of the agent having his residence or seat in Italy.

CBAs: those having force of law (“erga omnes”) govern the agreement, whereas those having contractual nature are unlikely to apply automatically, as the foreign principal typically would not be a member to any of the Italian associations having signed a CBA. However, they might apply if referred to in the agreement or de facto applied.

Enasarco: a foreign principal shall register the Italian agent to the Enasarco. Failure to do so might imply penalties and/or damages claims from the agent. As a consequence of such registration, the principal will have to contribute to the social security fund, while he should not be obliged to contribute to the FIRR (fund for termination indemnity). However, a principal who makes regular contributions to the FIRR even when not due, might be considered as having impliedly accepted the CBAs as applicable to the agency agreement.

Chamber of Commerce: the Italian agent has to be registered with the Chamber of Commerce and therefore the principal should make sure that the agent has complied with this requirement before entering into the agreement.

Procedural rules (art.409 and following, CPC): if Italian courts have jurisdiction (whether by the parties’ choice or as the place of performance of the services pursuant to Regulation 1215/12) and the agent is an individual or a sole entrepreneur with a seat in Italy, these rules should apply.

Italian principal and Italian agent– agreement to be performed abroad

Italian law: it governs the agreement if chosen by the parties, or, in the absence of any choice, if the agent has his residence or seat in Italy.

CBAs: they would not apply (as the agent performs abroad) unless expressly referred to in the agreement, or de facto applied.

Enasarco: according to the Ministry of Labor’s opinion, registration is mandatory when the agent, although being engaged to work abroad, has his residence and performs a substantial part of his business in Italy, or has in Italy his center of interest, or performs abroad for a period not exceeding 24 months, provided the EU Regulations apply. In case the agency agreement is to be performed in a non-EU country, it has to assessed from time to time whether registration is mandatory.

Chamber of Commerce: an agent having started his business and established as an entity in Italy is in principle obliged to register with the Chamber of Commerce.

Procedural Rules (articles 409 and following of the CPC): the rules apply if the agent is an Italian based individual or sole entrepreneur and the Italian jurisdiction is agreed upon.

Foreign principal and foreign agent – agreement to be performed in Italy

Italian law: in principle, it governs the agreement only if chosen by the parties.

CBAs: if the agreement is governed by Italian law, the CBAs having force of law apply, while those having contractual value will not apply unless expressly referred to, or de facto applied.

Enasarco: according to the Ministry of Labor’s opinion, when EU Regulations apply, registration may be required from a foreign principal in favor of an agent residing abroad, if such agent operates in Italy or has his center of interest in Italy. Otherwise, a case by case analysis will be needed under the applicable laws.

Chamber of Commerce: in principle, an agent established as an entity abroad is not obliged to register in Italy. However, the issue could be more complex if the agent has a seat and performs his activity mainly in Italy. Such circumstances may also affect the determination of the law governing the agency agreement.

Procedural Rules (articles 409 and following of the CPC): absent any different choice, Italian courts might have jurisdiction as Italy is the place of performance of the services. However, the above-mentioned rules should not apply if the agent has no seat or residence in Italy.

Conclusive remarks

Hopefully this analysis, though not exhaustive, can help understanding the possible consequences of applying Italian law to an international agency agreement, and to make prudent choices when drafting the agreement. As always, we recommend not to rely on standard contract forms or precedents without having paid due attention to all the circumstances of each case.

The majority principle, a pivotal aspect in limited companies, goes into crisis in situations where the share capital is equally divided between two opposing shareholders (50% each). In such hypotheses the approval of decisions is possible only with unanimity and this, obviously, frequently leads to deadlock situations that paralyze the management of the company.

The irreconcilable dissent among the shareholders can lead to the dissolution of the company. To avoid this, several strategies have been found, and one of these is the so-called “Russian Roulette Clause”.

The Shareholders may agree that, in deadlock situations, the Russian Roulette clause comes into play, with the effect of redistributing the shares and, consequently, starting again the business activity.

The clause provides that, upon the occurrence of certain trigger-event, one of the two shareholders (or both, if so agreed) has the power to determine the value of his/her 50% of the share capital. Consequently, he/she put the other shareholder in front of a simple choice: either buy the shares of the “offering” shareholder, at the price he/she has proposed, or sell his/her own share to the “offering” shareholder at the same price.

Who activates the Russian roulette determines the price, which remains fix. The unilateral determination of the price is balanced by the fact that the offeror does not know if she shall buy or sell at the established price: the final choice, in fact, is up to the offeree, who has not determined the price.

The author of this article is Giovannella Condò.

Con la aprobación de la Ley de Presupuestos del Estado para el 2018 (Balance de previsión del Estado para el año 2018 y balance para el trienio 2018-2020, L. 27 diciembre 2017, n. 205 publicada en el Boletín Oficial del Estado n. 302 del 29/12/2017) la facturación electrónica es obligatoria a partir del 1° de enero de 2019 para todos los sujetos sometidos a IVA.

Se discute sin embargo la viabilidad de dicha operación o si es necesario posponer la entrada en vigor de la nueva normativa.

La obligación de la factura electrónica vale sea en caso de venta de bienes que de prestación de servicios efectuada entre operadores IVA (operaciones B2B – Business to Business) sea en el caso en que la venta/prestación sea efectuada da un operador IVA a un consumidor final (operaciones B2C – Business to Consumer).

La emisión de facturas con modalidades distintas de la electrónica será considerada nula.

Están exonerados de las mencionadas disposiciones sólo los sujetos que actúan en “regime di vantaggio” previsto por el artículo art. 27 apartado 3 del Decreto Ley n. 98/11 y los que aplican el “regime forfettario” previsto por la ley n. 190/14.

Después de una primera fase reservada solamente a la facturación hacia la Administración Pública, se convierte en obligatoria la facturación entre empresas y hacia privados.

La facturación electrónica prevé la emisión de facturas estructuradas según un lenguaje estándar denominado formato XML (extensible Markup Language) firmado digitalmente por quien la emite, transmitidas mediante Sdl (Servicio de intercambio de la Agencia Tributaria) y conservadas obligatoriamente a fines fiscales solo en digital.

La factura electrónica se diferencia por lo tanto de una factura en papel solo por dos aspectos:

Tiene que ser necesariamente redactada utilizando un pc, un tablet, o un smartphone.

Tiene que ser transmitida electrónicamente a través del denominado Sistema de Intercambio (SdI) en caso contrario se considerará no emitida.

Las reglas para redactar, transmitir, recibir y conservar las facturas electrónicas se definen en la resolución n. 89757, del 30 de abril de 2018 publicada en la página web de la Agencia Tributaria.

La facturación electrónica es un sistema completamente digital de emisión y conservación de las facturas que no necesita un suporte en papel y por lo tanto permite ahorrar todos los costes relativos a la impresión, envío y conservación.

El envío de la Factura electrónica puede tener lugar mediante Correo Electrónico Certificado (PEC), mediante intermediario o portales web.

El SdI lleva a cabo controles en relación a la factura electrónica:

Verifica que existan las informaciones mínimas obligatorias previstas por la ley.
Verifica que los datos del IVA de proveedor o el C.F. del cliente resulten en el Registro Tributario.
Verifica que haya sido escrita la dirección telemática.
Verifica que haya coherencia entre los importes del imponible, tipo impositivo e IVA.

Si uno de los controles no resulta positivo el SdI “descarta” la factura. El “recibo de descarte” se transmite por el SdI a la dirección de Correo Electrónico Certificado o al mismo canal telemático (FTP – Protocolo de Transmisión del File o web service) del que ha recibido la factura electrónica.

Si los controles son positivos, el Sdl entrega la factura electrónica a la dirección telemática que lee en la factura y envía al sujeto que ha transmitido el file un “recibo de entrega”.

En el caso en que la casilla de Correo Electrónico Certificado o el canal telemático FTP o Web Service donde SdI prueba a entregar el file de la factura no fuesen activos, el SdI mete a disposición el duplicado de la factura en un área reservada y envía al sujeto que ha transmitido el file un recibo de imposibilidad de entrega. La factura se considera emitida por el proveedor pero no todavía definitivamente recibida a fines fiscales por el cliente.

En este caso es conveniente advertir al cliente a través de otros medios de la emisión de la factura.

Sea quien emite que quien recibe la factura electrónica está obligado a conservarla electrónicamente. La conservación electrónica no es la simple memorización en el ordenador. El proceso de conservación electrónica es normalmente suministrado por operadores privados certificados aunque la Agencia Tributaria pone a disposición un servicio de conservación electrónica.

En caso de inobservancia de la obligación de la emisión de la factura electrónica encuentran aplicación las sanciones previstas por el artículo 6 del Decreto Legislativo n. 417/97 que disponen una sanción administrativa de entre noventa y ciento ochenta por ciento del impuesto relativo al imponible no correctamente documentado o registrado en el curso del ejercicio.

Para las operaciones “transfronterizas” (factura de y hacia el extranjero) no existe la obligación de factura electrónica sino que es necesario efectuar una transmisión mensual de datos a la Agencia Tributaria antes del último día del mes sucesivo al de la data del documento emitido o al de la data de recibo del documento relativo a la operación.

La obligación de facturación electrónica aumenta las actividades de prevención de la evasión fiscal. Una obligación que tiene otras ventajas. A través de las facturas emitidas y transmitidas en modalidad digital se reducen no solo los cumplimientos por parte de la Administración Tributaria (generando ahorro de recursos públicos) sino también los márgenes de error en el ciclo de vida de las facturas, con importantes ahorro de tiempo y costes en el medio y largo periodo para empresas y profesionales.

El autor de este artículo es Giovanni Izzo.

The Italian Budget Law for 2017 (Law No. 232 of 11 December 2016), with the specific purpose of attracting high net worth individuals to Italy, introduced the new article 24-bis in the Italian Income Tax Code (“ITC”) which regulates an elective tax regime for individuals who transfer their tax residence to Italy.

The special tax regime provides for the payment of an annual substitutive tax of EUR 100.000,00 and the exemption from:

any foreign income (except specific capital gains);
tax on foreign real estate properties (IVIE ) and tax on foreign financial assets (IVAFE);
the obligation to report foreign assets in the tax return;
inheritance and gift tax on foreign assets.

Eligibility

Persons entitled to opt for the special tax regime are individuals transferring their tax residence to Italy pursuant to the Italian law and who have not been resident in Italy for tax purposes for at least nine out of the ten years preceding the year in which the regime becomes effective.

According to art. 2 of the ITC, residents of Italy for income tax purposes are those persons who, for the greater part of the year, are registered within the Civil Registry of the Resident Population or have the residence or the domicile in Italy under the Italian Civil Code. About this, it is worth noting that persons who have moved to a black listed jurisdiction are considered to have their tax residence in Italy unless proof to the contrary is provided.

According to the Italian Civil Code, the residence is the place where a person has his/her habitual abode, whilst the domicile is the place where the person has the principal center of his businesses and interests.

Exemptions

The special tax regime exempts any foreign income from the Italian individual income tax (IRPEF).

In particular the exemption applies to:

income from self-employment generated from activities carried out abroad;
income from business activities carried out abroad through a permanent establishment;
income from employment carried out abroad;
income from a property owned abroad;
interests from foreign bank accounts;
capital gains from the sale of shares in foreign companies;

However, according to an anti-avoidance provision, the exemption does not apply to capital gains deriving from the sale of “substantial” participations that occur within the first five tax years of the validity of the special tax regime. “Substantial” participations are, in particular, those representing more than 2% of the voting rights or 5% of the capital of listed companies or 20% of the voting rights or 25% of the capital of non-listed companies.

Any Italian source income shall be subject to regular income taxation.

It must be underlined that, under the special tax regime no foreign tax credit will be granted for taxes paid abroad. However, the taxpayer is allowed to exclude income arising in one or more foreign jurisdictions from the application of the special regime. This income will then be subject to the ordinary tax rule and the foreign tax credit will be granted.

The special tax regime exempts the taxpayer also from the obligation to report foreign assets in the annual tax return and from the payment of the IVIE and the IVAFE.

Finally, the special tax regime provides for the exemption from the inheritance and gift tax with regard to transfers by inheritance or donations made during the period of validity of the regime. The exemption is limited to assets and rights existing in the Italian territory at the time of the donation or the inheritance.

Substitutive Tax and Family Members

The taxpayer must pay an annual substitutive tax of EUR 100,000 regardless of the amount of foreign income realised.

The special tax regime can be extended to family members by paying an additional EUR 25,000 substitutive tax for each person included in the regime, provided that the same conditions, applicable to the qualifying taxpayer, are met.

In particular, the extension is applicable to

spouses;
children and, in their absence, the direct relative in the descending line;
parents and, in their absence, the direct relative in the ascending line;
adopters;
sons–in-law and daughters-in-law;
fathers-in-law and mothers-in-law;
brothers and sisters.

How to apply

The option shall be made either in the tax return regarding the year in which the taxpayer becomes resident in Italy, or in the tax return of the following year.

Qualifying taxpayer may also submit a non-binding ruling request to the Italian Revenue Agency, in order to prove that all requirements to access the special regime are met. The ruling can be filed before the transfer of the tax residence to Italy.

The Revenue Agency shall respond within 120 days as from the receipt of the request. The reply is not binding for the taxpayer, but it is binding for the Revenue Agency.

If no ruling request is filed, the same information provided in the request must be provided together with the tax return where the election is made.

Termination

The option for the special tax regime is automatically renewed each year and it ends, in any case, after fifteen years from the first tax year of validity. However, the option can be revoked by the taxpayer at any time.

In case of termination or revocation, family members included in the election are also automatically excluded from the regime.

After the ordinary termination or revocation, it is no longer possible to apply for the special tax regime.

The author of this post is Valerio Cirimbilla.

El 25 de mayo de 2018 ha entrado en vigor el Reglamento UE 2016/679, en materia de “protección” de datos personales (de ahora en adelante el “Reglamento” o “RGPD”), instrumento normativo comunitario destinado a reforzar el derecho de las personas físicas a que sean protegidos sus datos personales, al que se le ha dado la categoría de “derecho fundamental” en la Carta de derechos fundamentales de la Unión Europea (Artículo 8 apartado 1) y en el Tratado sobre el funcionamiento de la Unión Europea (Artículo 16 apartado 1).

El Reglamento se aplica inmediatamente y no necesita transposición por parte del legislador nacional. Sus disposiciones prevalecen sobre las leyes internas. Desde un punto de vista práctico ello significa que, en caso de contraste entre una disposición contenida en el Reglamento y una prevista en el “viejo” Decreto Legislativo 196/2003, prevalecerá el Reglamento.

El RGPD se compone de 99 artículos de los cuales, solo algunos, constituyen novedades y tienen relevancia para los titulares/gestores de estructuras receptoras turísticas.

Seguramente la primera novedad es la relativa al “consentimiento explícito” para el tratamiento de datos “sensibles” y las decisiones basadas sobre tratamientos automatizados (incluida la elaboración de perfiles – art. 22). De hecho es necesario que el cliente manifieste un consentimiento distinto del relativo a los otros datos. El consentimiento anterior al 25 de mayo 2018 es válido solo si tiene estas características.

Esto impone, por ejemplo, al titular de los datos poner al día su página web o las newsletter promocionales enviadas a los clientes. Estos deben ser informados de las finalidades para las cuales se recogen los datos y los derechos que les corresponden. Para la inscripción en la newsletter debería ser necesario únicamente el correo y cuando fuesen solicitados otros datos, se especificarán las finalidades para las que fueron solicitados. Antes de la solicitud de inscripción el cliente deberá emitir el consentimiento y la aceptación de la normativa sobre la protección de datos. El documento de seguridad deberá poder ser visualizado claramente desde la página web principal. Por lo que respecta específicamente a la newsletter, el documento de seguridad debe ser indicado y enlazado en el relativo recuadro de inscripción.

Se han introducido importantes modificaciones a los deberes del Responsable del tratamiento de datos y del Encargado del tratamiento de datos, ambas figuras de gran importancia en las estructuras hoteleras.

El Responsable del tratamiento de datos debe ahora: (i) poder demostrar que el interesado haya prestado el consentimiento a un tratamiento específico, (ii) suministrar los datos de contacto del Responsable de protección de datos, (iii) declarar si transmitir los datos personales a Terceros Países y, en caso afirmativo, a través de qué instrumentos, (iv) especificar el período de conservación de los datos y o criterios seguidos para establecer el período de conservación de los mismos y el derecho de presentar un recurso a la autoridad de control, (v) especificar si el tratamiento comporta procesos decisionales automatizados (incluso la definición del perfil), y las consecuencias previstas por el interesado.

El Encargado del tratamiento de datos (denominado Data protection Officer – DPO), es en cambio el profesional (que puede ser interno o externo a la estructura) que garantiza las observaciones de las normas del RGPD y la gestión y tratamiento de datos.

Según la nueva normativa los deberes de dicho sujeto consisten ahora en: i) llevanza del registro de tratamientos efectuados (en base al art. 30, párrafo 2) y ii) en la adopción de idóneas medidas técnicas y organizativas para garantizar la seguridad de los tratamientos (en base al art. 32 del reglamento).

Su nombre debe aparecer en el documento de seguridad que debe entregarse al Cliente. La relación con el titular del tratamiento está regulada obligatoriamente por un contrato que debe disciplinar taxativamente al menos seis materias de las previstas en el párrafo 3 del art. 28 con el fin de demostrar que el responsable da “garantías suficientes” para una correcta gestión y tratamiento de datos. El Responsable puede nombrar a su vez un “sub-responsable” pero solo para limitar la actividad de tratamiento, llevado a cabo de acuerdo con cuanto previsto en el contrato, y responderá del incumplimiento del mismo.

En base a dichas disposiciones, las estructuras hoteleras deberán proceder a una atenta valoración del riesgo resultante del tratamiento de datos, establecer un detallado procedimiento en grado de verificar constantemente la idoneidad del tratamiento, proceder en tiempo oportuno a notificar una violación del procedimiento de seguridad que implique la divulgación incluso accidental de datos, poner al día los documentos de seguridad que hay que entregar al cliente.

Hay que señalar que las sanciones por las violaciones del RGPD pueden alcanzar el 4% de la facturación de la empresa, siendo más severas respecto a lo previsto en precedencia. Es necesario prestar mucha atención a que se respete el mencionado Reglamento, ya que su errónea o carente aplicación puede determinar graves perjuicios a la empresa.

El autor de este artículo es Giovanni Izzo.

Over the last year, the escalation of cryptocurrencies has aroused a number of issues and controversial debates for the lack of regulation in most jurisdictions, including Italy where the only regulation of the cryptocurrency phenomenon is set by the AML legislation. According to the Italian law, cryptocurrencies do not have legal tender status, the regulators have qualified cryptocurrencies as means of exchange different from e-money, which, however, can be converted into Euro for purchasing virtual currency as for selling such currency; moreover, they can be used to buy both virtual and real goods and services. As a matter of fact, the lack of regulation concerning cryptocurrencies as a form of currency and a financial instrument does not prevent the trade and use of cryptocurrencies not only as means of payment but also as contribution to fund the share capital of limited liability companies.

On July, 18^th, the Court of Brescia has denied the validity of a resolution increasing the share capital of a limited liability company subscribed for by certain utility tokens because the relevant contribution (equal to Euro 714,000) didn’t comply with Article 2464 of the Civil Code. The Court has not banned the contribution of cryptocurrencies but based on that case it has remarked the criteria governing contributions in kind which were not met for the subscription of the increase of share capital as resolved by the company; giving that, and starting from this assumption, it is possible to highlight criteria requested by the Italian law to contribute cryptocurrencies into share capital.

Any (tangible and intangible) asset can be contributed into the share capital of joint-stock companies (S.p.A.) and limited liability companies (S.r.l.) to the extent that they have an indisputable economic value (as proved by a sworn appraisal from an expert who issues the relevant report) and a potential market where they can be exchanged and/or converted into cash. The report must be focused on the description of the contributed assets, the reference of the adopted criteria of evaluation, and the certification that their value is, at least, equal to the one assigned at the moment of the subscription of the capital and of the premium, if any. As a matter of fact, the function of the share capital is to guarantee the creditors in relation to the company liabilities, as a consequence it is mandatory that the economic value of the share capital must be indisputable and in compliance with the law, especially when including cryptocurrencies or digital assets.

Moving on the case, the cryptocurrencies contributed were issued by a company based in Bulgaria, they were utility tokens used as mean of payment for buying goods and services on a web platform, owned by the issuers of these digital assets. Hence these tokens were not traded in any exchange platform where it is possible to fix an indisputable exchange rate and then the relevant economic value. Indeed, the Court has reasoned the direct proportion between the value of the contribution into the equity and the existence of exchanges where the value of the cryptocurrency would have been set. Moreover, the Court has stated the lack of enforceability of the tokens contributed. Under the practical side, the contribution of cryptocurrencies has to be made by reporting the private key from the contributor to the company, giving that the enforceability of cryptocurrencies by a pledge can be done subject to the collaboration and the consent of the contributor who has to disclose the private key; should the contributor refuse to disclose the private key, the enforceability of the pledge on the tokens would be undermined.

To sum up, in theory the contribution of cryptocurrencies into equity is not forbidden under the Italian law, however giving its questionable nature, it is still controversial how to guarantee the compliance with the mandatory requirements for the contribution in kind.

This case history and the order of the Court of Brescia give us the opportunity to provide the Italian picture on cryptocurrencies.

The Italian crypto-scenario is quite effervescent since the beginning of 2017; indeed, Italy was the first European country to define the virtual currency and the exchanger according to the new AML legislation. This is not strange considering that the anonymity surrounding cryptocurrencies, which varies from complete anonymity to pseudo-anonymity, prevents cryptocurrency transactions from being adequately monitored, allowing shady transactions to occur outside of the regulatory perimeter and criminal organisations to use cryptocurrencies to obtain easy access to «clean cash». Anonymity is also the major issue when it comes to tax evasion.

The AML Law

Legislative Decree no. 90 of May 25^th 2017, which reformed legislative decree no. 231/2007, introduced definitions of exchanges and virtual currencies and provided a set of rules for the exchanges to comply with the anti-money laundering rules.

Virtual currency means “a digital representation of value that is neither issued by a central bank or a public authority, nor attached to a legally established fiat currency, which can be used as a means of exchange for the purchase of goods and services and transferred, stored and traded electronically.” Virtual currencies within the scope of AMLD5 and of the Italian AML Law are those that can be transferred, stored and traded electronically. Until now, other virtual currency schemes are not in scope, including virtual currencies used to attain goods and services without requiring exchange into legal tender or similar instruments, or the use of a custodian wallet provider.

Exchanges are defined as virtual service providers: “any natural or legal person providing professional services to third parties for the use, the exchange, the related storage of virtual currencies and for the conversion from or in currencies having legal tender [.]” Given this scope, they are subject to anti-money laundering regulations and, therefore, they have to obtain a sort of licence and be listed in a special register to operate in Italy. Considering this definition, it seems that a material number of key players are not included in AML law, for example miners and pure cryptocurrency exchanges that are not custodian wallet providers, hardware and software wallet providers, trading platforms and coin offerors. This choice of the legislator leaves blind spots in the fight against money laundering, terrorist financing and tax evasion. However, a decree of the Ministry of Economy and Finance (MEF) is under discussion, which seeks to extend the monitoring not only to exchanges but also to those subjects that accept cryptocurrencies for the sale of services and goods.

As said, apart from the AML Law, there is a lack of regulation which undermines the grade of protection of users and investors.

The protection of users/investors

One of the issues which prevents or undermines the grade of the protection is that crypto markets and crypto players can be located in jurisdictions that do not have effective money laundering and terrorist financing controls in place or do not have any regulation for their offering to the investors. Moreover, against the risk of default of the platform or the exchanges there is very little to do to protect investors especially at a cross-border level.

The protection of users/investors depends on several factors, the first one being the nature of the cryptocurrencies in question and the crypto-platforms (i.e. what they are, where they are based and whether they are compliant with the Italian law).

The nature of the cryptocurrencies has to be identified on a case-by-case basis. If qualified as securities (standard financial products which are transferable and generate profits), the prospectus rules should apply, this meaning that a prospectus is required under the Consolidated Financial Law (“Testo Unico Finanza” or “TUF”) to disclose significant financial risks to investors. If they are a hybrid made up of a means of payment and an investment component, the application of the TUF provisions is controversial.

From a criminal perspective, users/investors can be protected in case of fraud irrespective of the above factors. The general remedies under the criminal law apply.

The landmarks for investors’ protection are:

The AML Law defining the subjects obliged to declare their activities in the cryptocurrencies world (e. the custodian wallet providers and the virtual currency exchanges);
The TUF rules, inter alia, the prospectus regulation; and
The Consumers’ Code rules the mandatory provisions on the «form and pre-contractual information».

The common ground of civil actions is the disclosure of pre-contractual information to investors and the compliance of crypto-platforms and exchanges with the Italian law.

Civil actions might be brought against platforms:

Pursuant to Articles 50 and 67 of the Consumers’ Code, according to which any contract must provide consumers with mandatory «pre-contractual information».
Pursuant to Article 23 of the TUF, according to which any contract providing investment services must be in writing and “failure to comply with the prescribed form shall render the contract null and void”.

In 2017, the Court of Verona declared a contract null and void because of its breach of the mandatory provisions on the «form and pre-contractual information» and ordered the refund of the money to the consumer. From the consumers’ perspective, all the information about the nature, the risks and the features of any cryptocurrency must be provided in advance to individuals in a transparent manner. As a matter of fact, the Court of Verona has reasoned that any online agreement between parties, implying the exchange of real money for virtual money, represents a financial service or rather “a paid service.” The Court judged that the contract between the exchange and the Italian consumer was null and void, as the IT service firm breached the obligations set forth by Articles 50 on «distance contracts» and 67 of the Consumers’ Code, which provide as mandatory the «form and pre-contractual information» to be provided to consumers. Lastly, the Court ordered to return to the Italian plaintiff the amount invested in cryptocurrencies.

For the sake of completeness, the consumers’ protection has been achieved also by the Italian Antitrust Authority (i.e. the non-governmental organization focused on consumer protection), which stopped the operations of several affiliates of OneCoin, the digital currency investment scheme widely accused of fraud.

In 2017, Consob (National Authority for the Stock Exchange) banned the advertisement and then the offer of investment portfolios containing cryptocurrencies, made in breach of the prospectus regulation.

Pursuant to Article 101, Par. 4, Part c) of the TUF, Consob has prohibited the advertising – via the website www.coinspace1.com – of the public offer for ‘cryptocurrency extraction packages’ launched by Coinspace Ltd (Resolution no. 19968 of April 20^th 2017). The offer had already been the subject of a precautionary 90-day suspension. Moreover, on December 6^th, 2017, pursuant to resolution no. 20207, under Article 99, paragraph 1, letter d) of the TUF, Consob banned the offer to the Italian public of «investment portfolios» carried out without the required authorizations by Cryp Trade Capital through the website https://cryp.trade. A few months later, in March 2018, the website https://cryp.trade was subjected to precautionary seizure by the Criminal Court of Rome pursuant to Article 166 of the TUF (a criminal provision which punishes those who carry out financial services and activities without Consob’s authorization). The common ground of these resolutions issued by Consob is the absolute lack of the mandatory information and prospectus set forth by the TUF for entities providing financial services to Italian investors trading in cryptocurrencies and cryptocurrency-related products. Given the application of the TUF, pursuant to Article 23, any contracts for the provision of investment services must be in writing and “failure to comply with the prescribed form shall render the contract null and void”.

Both resolutions have remarked how the Italian versions of the websites were the evidence that those offers were targeted to the Italian market, therefore Consob has set the criteria to identify the territoriality of the crypto-platforms subject to the Italian law which is: “where the cryptocurrencies are intended to be offered to the public”.

To complete this overview, some highlights follow on ICOs and the tax regime of cryptocurrencies in Italy.

ICOs

Initial Coin Offerings (ICOs) are not regulated by the Italian law. In ICOs the funding collected by a start-up could also be exchanged for an equity token (very similar to securities and then embodying an interest in the issuing start-up) or a utility token, which entitles the holder to exchange it for goods or services provided by the same start-up.

ICOs are very controversial (even if not yet officially banned by Consob), as they issue equity tokens that, due to their similarity to securities, can be offered to the public of investors only by entities duly authorized by the regulators, according to the TUF. As far as utility tokens, in theory their issuance might be allowed subject to a strict set of contractual rules, in order to protect investors as much as possible. However, the ICOs market has not taken off, yet.

The tax regime

For Italian tax purposes, the taxation of cryptocurrencies is not regulated by Law. Nonetheless, the Italian Revenue Agency issued a Ruling in May 2018 providing that gains on virtual currency for individuals trading outside a business activity are treated as gains arising from the disposal of traditional foreign currency. Consequently, gains relating to forward sale are always taxable, rather gains relating to forward sale are taxable only to the extent that, during the tax period, the average amount of the overall virtual currency maintained by the taxpayer exceeds the equivalent of EUR 51,645.69 for seven days in a row (the exchange rate to use is the one given by the website where the individual carried out the transaction). Any gain is therefore subject to 26% withholding tax. Additionally, the taxpayer must comply with the tax monitoring duties in the Individual Tax Return though he is not exempted from wealth tax (IVAFE), to the extent that virtual currency is not held through institutions or other authorized intermediaries by the Bank of Italy.

The same regulatory uncertainty put on the taxation of corporations trading in virtual currency. In a Ruling issued in September 2018, the authorities submitted that exchanges of bitcoins for legal currency constitute, for income tax purposes, a taxable event subject to Ires (24%) and Irap (3.9%).

For indirect tax purposes, the authorities confirmed that trading in bitcoins and other virtual currencies is similar to the activity of an intermediary negotiating in financial instruments, and, as a consequence, it is exempt from VAT under the Italian provision implementing article 135(1)(e) of the VAT Directive (2006/112). Therefore, when bitcoins are exchanged for real currencies, no VAT is due on the value of the bitcoins themselves.

The author of this post is Milena Prisco.

Christian Montana

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Derecho Procesal
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24 enero 2019

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According to the article 20 of the Italian Code of Intellectual Property, the owner of a trademark has the right to prevent third parties, unless consent is given, from using:

any sign which is identical to the trademark for goods or services which are identical to those for which the trademark is registered;
any sign that is identical or similar to the registered trademark, for goods or services that are identical or similar, where due to the identity or similarity between the goods or services, there exists a likelihood of confusion on the part of the public, that can also consist of a likelihood of association of the two signs;
any sign which is identical with or similar to the registered trademark in relation to goods or services which are not similar, where the registered trademark has a reputation in the Country and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trademark.

Similar provisions can be found in art. 9, n. 2 of the EU Regulation 2017/1001 on the European Union Trademark, even if in such a case the provision concerns trademarks that have a reputation.

In fact, we talk about «ultra-market» protection – which is independent of the likelihood of confusion referred to in sub-letter b) – which can be invoked when certain conditions are met.

First of all, the owner has the burden of proving that his own sign is well-known, both at a territorial level and with reference to the interested public.

Of course, the greater the reputation of the brand, the greater the extension of the protection to include less and less similar product sectors.

Finally, the unfair advantage occurs when the third party parasitically engages its trademark with the reputation or distinctiveness of the renowned brand, taking advantage of it.

The author of this article is Giacomo Gori.

Focus on this new corporate instrument is recommended. It could favour numerous strategic alliances between financiers and entrepreneurs looking for capital.

The author of this article is Giovannella Condò.

When should an agency agreement be considered “international”?

When does Italian law apply to an agency agreement?

What are the main regulations of agency agreements in Italy?

What is the role of the collective bargaining agreements?

According to the majority of scholarly opinions and case law, CBAs’ geographical scope of application is limited to the Italian territory.

What are the other main requirements in agency agreements?

The “Enasarco”

Enasarco is a private law Foundation with which agents in Italy must be registered by law.

Which rules apply to international agency agreements?

agents operating in the Italian territory, in the name and on behalf of Italian or foreign principals having a seat or an office in Italy;
Italian or foreign agents operating in Italy in the name and/or on behalf of Italian or foreign principals with or without a seat or office in Italy;
agents residing in Italy and performing a substantial part of their activities in Italy;
agents not residing in Italy, but having their main center of interest in Italy;
agents habitually operating in Italy, but performing their activity exclusively abroad for a period not exceeding 24 months.

Chamber of Commerce and Register of Businesses

Venue for disputes (art.409 and following of the Civil Procedure Code)

Applying the rules above to the most common situations in international agency agreements

Italian principal and foreign agent – agreement to be performed abroad

Enasarco: typically, there are no registration or contribution obligations in favor of a non-Italian agent whose residence is abroad and performing his contractual duties only abroad.

Chamber of Commerce: there is no obligation to register in the above circumstances.

Foreign principal and Italian agent – agreement to be performed in Italy

Italian law: it governs the agreement if chosen by the parties or, even in the absence of any choice, as an effect of the agent having his residence or seat in Italy.

Italian principal and Italian agent– agreement to be performed abroad

Italian law: it governs the agreement if chosen by the parties, or, in the absence of any choice, if the agent has his residence or seat in Italy.

CBAs: they would not apply (as the agent performs abroad) unless expressly referred to in the agreement, or de facto applied.

Chamber of Commerce: an agent having started his business and established as an entity in Italy is in principle obliged to register with the Chamber of Commerce.

Procedural Rules (articles 409 and following of the CPC): the rules apply if the agent is an Italian based individual or sole entrepreneur and the Italian jurisdiction is agreed upon.

Foreign principal and foreign agent – agreement to be performed in Italy