Italia – La factura electrónica

15 enero 2019

Italia

Derecho Societario

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.

It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.

Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

The relationship between influencers and advertising is one of the most interesting topic of the recent years, and one to which many operators in the sector are devoting energy and money.

In this article we will return to talk about the legal problems that influencer marketing makes it necessary to analyze.

There are many problematic profiles that can arise from the activity of influencers, pursuant to a fundamental principle of advertising discipline: any form of commercial communication and/or advertising must clearly be recognizable as such.

It is known that influencers, thanks to the reputation they have on social network, Instagram among all, are often paid to post pictures that portray them along with products given for free companies that have sponsored the post itself. The situation described can well be considered as a real advertising activity, considering that there is an individual that receive remuneration for promoting a product to the community. However, in the sponsored post there is no mention of the fact that the activity carried out by influencers is a genuine and effective advertising activity: the influencers simply post the picture and describe the product , obviously in a positive way, as if it were “a private story in the style of Instagram» (injunction of the Italian Advertising Self-Regulatory Institute (IAP) Control Committee no. 57/2018).

It is certainly on the basis of these considerations that, in the last two months, we have assisted to a real crackdown in the IAP, the Italian Advertising Self-Regulatory Institute (“Istituto di Auto-disciplina Pubblicitaria). The IAP Control Committee notified many influencers, as well as the companies producing the good displayed in the sponsored posts, injunctions aimed at inhibiting the publication of certain posts released by the influencers themselves.

The common element of all these injunctions is the criticism of a behavior that showed a purely advertising activity as if it were a spontaneous choice of the influencer. This circumstance leads to a situation in which, using the words of the IAP injunction No 61/2018 of 14 June 2018, there are “communication conveying eminently promotional content of the product and the brand in question, that is however not sufficiently explicit and therefore not immediately recognisable to the public”.

In fact, what is being contested in the above-mentioned injunctions, but also in others, such as in the injunction no. 51/2018, is the violation of art. 7 of the Italian Marketing Communication Self-Regulation Code (“Codice di auto-disciplina pubblicitaria). The code is the source of the above-mentioned principle that states that any form of commercial communication must always be recognisable as such. Furthermore, the Code says that «in the means and forms of commercial communication in which contents and information of other kinds are disseminated, commercial communication must be clearly distinguished by means of appropriate measures«.

The measures taken by the Control Committee involve not only influencers, but also companies, as the latter actually benefit from an activity that can be considered a form of surreptitious advertising.

Please, allow me a note.

Take for example the injunction no. 50/2018, regarding two Instagram’s posts of the influencer Chiara Nasti, that portrayed her with products marked with the trademark «Sunsilk»: having noted that the two posts of Nasti’s Instagram profile violated the above-mentioned art. 7 of the Italian Marketing Communication Self-Regulation Code, the injunction states the essential need for «transparency of communications«, that allows an effective distinction, and not a merely formal one, of promotional communications from any other type of communication.

Analyzing the guidelines elaborated on this matter by the IAP, the so-called «Digital Chart», it results that it is considered compliant for the purpose of the recognition of an advertising communication as such, that a post on Instagram or on another social network presents the hashtag #advertising, or even simply the hashtag #ad.

In this respect, the IAP’s guidelines may leave a little baffled. In fact, while recognizing that the choice in question is an attempt to mediate between the need to protect the consumer and the activity of influencer, it is legitimate to doubt about the effectiveness of the hashtag #ad. As a matter of fact, it is reasonable to doubt that the hashtag #ad, written under a picture on a social network, is in itself suitable to make it clear to the user and to the average consumer that the post ha an advertising message. In fact, it can be assumed that many users do not know that the term «ad» is the abbreviation for «advertising», especially considering that the average user of influencers is represented by young people aged between 14 and 18 years. In a nutshell, the hashtag #ad would be able to “disguise” the advertising activity.

On the other hand, the Italian Competition Authority (AGCM – Autorità Garante della Concorrenza e del Mercato) and some German judges (and the German legal system is known to be particularly attentive to new technologies law) also reached these conclusions. In this respects, it is worth reading the Case 13 U 53/17 of the Celle Higher Regional Court, that concerns to precisely the hashtag #ad and reaches conclusions similar to those mentioned above.

It should also be noted that, so far, it has been mentioned the Italian Marketing Communication Self-Regulation Code, a regulatory text issued by the IAP, whose injunctions or decisions bind exclusively the companies adhering to its system of self-regulation.

However, it is clear that, in cases such as those described above, is applicable a specific Italian legislation, the so-called Consumer Code (Legislative Decree no. 206/2005 – Codice del Consumo), Furthermore, surreptitious advertising violates the prohibition of misleading and unfair commercial practices, as stated in various articles of the Consumer Code.

The consequences are relevant, because the Consumer Code and its Implementing Regulations implicate the intervention of the Italian Competition Authority (AGCM) or the Italian Regulatory Authority for Communications (Agcom – Autorità Garante per le Comunicazioni), both having sanctioning powers toward any person (with particular reference to financial sanctions).

What arises from this brief examination is that this phenomenon is particularly interesting and widespread throughout the world.

The author of this post is Elena Carpani.

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