Italian Law Research Articles

Gender diversity in Italian listed companies: Female directors’ roles and corporate performance

The study examines gender diversity in a sample of Italian listed companies. Specifically, we study the effect of the percentage and the role of women directors in the boardroom in affecting firm performance. Using data from Italian listed firms during the period 2006–2015, the aim is to show the effect arising from the introduction of Italian Law 120/2011, which forces the listed companies to reserve a mandatory quota for female directors on the board. The results show that increasing the percentage of female directors leads to superior financial performance. However, focusing on the roles of female directors, we observe that the percentage of executive female directors is not correlated with firm performance. Diversely, companies with a higher percentage of independent female directors are associated with better firm performance.

Derivative contracts, anticipatory reliance and remedies in English and Italian law of restitution.

Derivative contracts, anticipatory reliance and remedies in English and Italian law of restitution.

Criminal liability for the “unlawful” trafficking of waste in Italy: what relevance for the European Best Available Techniques?

The paper deals with a much-debated topic in Italian criminal law scholarship and jurisprudence, that of criminal liability for carrying on formally authorised polluting activities, with a focus on its EU law profiles. After an overview of the concept of “unlawfulness” in environmental criminal law, the paper turns on the Italian offence of waste trafficking, addressing in particular two recent rulings of the Court of Cassation that held that the violation of EU “Best Available Techniques” can determine the “unlawful” nature of conduct, even when the latter is formally authorised. The author argues that this approach cannot be shared in its absoluteness, but deserves attention in order to avoid that, in certain well-defined hypotheses, authorisation becomes a factor of unjustified impunity for environmental damage.

On the Effect of the Time Interval Base and Home Appliance on the Renewable Quota of a Building in an Alpine Location

The European goal of decarbonization drives design toward high-performance buildings that maximize the use of renewable sources. Therefore, the European RED II Directive and Italian law raise the minimum renewable share required for new buildings and major renovations. Currently, the renewable energy ratio (RER) is used for the mandatory verification, obtained with a quasi-steady state calculation on a monthly basis, while much of the scientific literature uses self-consumption factor (SCF) and load coverage factor (LCF) often calculated through dynamic simulation. However, the use of a monthly balance implies the use of the national grid as a virtual battery through the net metering mechanism. The actual share of renewable coverage in the absence of expensive electric storage will necessarily be lower. The link between the different indices, the effect of the time base used in the calculation as well as the actual renewable share achieved by buildings, considering also plug loads not in the regulatory verification framework, are still open issues. This work analyzes the actual renewable share achievable for a new building in a heating-dominated climate, i.e., the mountainous area of the municipality of Trento. The renewable share is evaluated through a coupled dynamic simulation of the building and the energy systems. The results show that the RER decreases by 13% and 15% when switching from monthly to instantaneous balance in the case without and with additional home appliance loads, respectively. Similarly, simulations show how the time interval base affects the difference between the RER index and the LCF of PV energy.

Abuse of consumer trust in the digital market and the green market: the case of green washing in the Italian legal system

PurposeThe purpose of this paper is to offer some reflection on the abuse of consumer trust and the importance of control of information in the digital market and the green market. The role of the consumer as the arbiter of the market is fundamental. The abuse of consumer confidence depends, in fact, on the spread of stereotyped messages and vague and generic formulas aimed at hiding a dangerous vacuum of protection. In both markets, it is a question of giving the consumer the necessary tools to monitor the transparency of the criteria used by the trader to classify a product according to its characteristics.Design/methodology/approachBased on the analysis of an Italian case law and the European programme, the author shows how in Italy there is a dangerous lack of consumer protection. The problem is that the green consumer, as well as the online consumer, is not able to immediately verify the accuracy of the product requirements and must be able to count on the seriousness of the professional. For this reason, the European and national authorities have provided specific rules for both markets. The new proposal of directive introduces specific rules to target unfair commercial practices that mislead consumers away from sustainable consumption choices and introduced many innovations, such as the ban on greenwashing.FindingsThis work aims to identify the tools necessary to make the information on the products offered in the digital market and those related to green products more reliable but above all to create a common methodology on which to base them. High is the risk that sustainability will become a simple marketing strategy for companies. The difficulty consists in the absence of certain and verifiable parameters by the consumer to really measure the characteristics and the quality of a product characteristic of a product compared to competing ones.Originality/valueThis work examines the problem of consumer protection in the digital and green market from a new perspective, comparing the information asymmetries with respect to the professionals in the two markets. Starting from the cases of greenwashing and analysing new European remedies, the author suggests for both markets, specific answers different from those required for advertising in general. The problem here is not only the truth of the message but also the vagueness and genericity. The consumer must be in a position to control the criteria used by the professional to classify products, both in the green and the digital market. To the best of the author’s knowledge, this paper is the original work of the author and has not been submitted elsewhere for publication.

From the Streets to the Judicial Evidence: Determination of Traditional Illicit Substances in Drug Seizures by a Rapid and Sensitive UHPLC-MS/MS-Based Platform

According to the 2021 World Drug Report, around 275 million people use drugs of abuse, and 36 million people suffer from addiction, fostering a thriving market for illicit substances. In Italy, 30,083 people were reported to the Judicial Authority for offenses in violation of the Italian Law D.P.R. 309/1990. These offences are sentenced after a qualitative-quantitative analysis of seized materials. Given the large quantity of seized drugs and the need to perform accurate analytical determinations, Italian forensic laboratories struggle to complete analyses in a short time, delaying the entire reporting process needed to achieve sentencing. For this purpose, an UHPLC-MS/MS-based platform was developed at the University of Milano-Bicocca to support law-enforcement authorities. Software was designed to easily manage street seizure acquisition, documentation registration, and sampling. A sensitive UHPLC-MS/MS method was fully validated for the quantification of the traditional illicit substances (cocaine, heroin, 6-MAM, morphine, amphetamine, methamphetamine, MDMA, ketamine, GHB, GBL, LSD, trans-∆9-THC, and THCA) at the ppb level. The final report is relayed to the Prefecture in 3-4 days, even within 24 h for urgent requests. The platform allows for semi-automatic data handling to minimize erroneous results for an accurate report generation by standardized procedures.

Medically Assisted Procreation and Same-Sex Couples: The Italian Corte di Cassazione Stands its Ground

Abstract This contribution examines a recent ruling of the Italian Corte di Cassazione, concerning the recognition of parentage resulting from medically assisted procreation (“map”) techniques performed abroad by female same-sex couples. In cases where the birth of the child occurs in Italy, the Italian birth certificate usually contains the indication of the woman who gave birth, but does not mention the intentional mother, even when the latter has a biological relationship with the child. The Corte di Cassazione has confirmed its consolidated position in denying the amendment of the birth certificate, on the basis of a rigorous interpretation of the limits provided by the Law No. 40/2004. The Italian law prohibits the access of map techniques by same-sex couples, because their condition cannot be equated to a pathological infertility. The ruling under review overlooks the human rights implications possibly deriving from the recognition of intentional motherhood: in rejecting the allegations concerning the infringment of the fundamental rights enshrined by the European Convention on Human Rights (“echr”), the court has stated that the gaps in protection that may result from the application of Italian law may only be solved through an intervention of the lawmaker.

The Italian Legal Framework of Agricultural Land Succession and Acquisition by Legal Persons

The work outlines the Italian legal framework of agricultural land succession and of land acquisition by legal persons. The issue of the inter-generational turnover in agriculture is a fundamental issue of the political agenda of the European Union and is particularly relevant in Italy, where farms are predominantly family-owned. For this reason, intra-family succession is the preferred mechanism to transfer farm management to future generations, and it is carried out mainly through the so-called Family Pact (art. 768-bis of the Civil code) before the death of the farmer. Considering this type of transfer between generations, it is necessary to distinguish three different scenarios (that in which the agricultural holding is currently managed as a sole proprietorship farm business by one of the parents; that in which management of the agricultural holding has already been transferred to the children, but land and buildings remain the property of the parents; and that in which the holding is currently managed as an agricultural company in which the parents retain a majority interest).The single compendium, a specific legal institution aimed at preventing fragmentation of rural land, is also analyzed, as well as the consequences of the death of its owner. Succession in agricultural land and/or holdings and in agricultural contracts is also considered. With regard to succession of agricultural land and/or holdings, in case of death of the owner of agricultural land conducted or cultivated directly by him or by his family members, art. 49 of Law no. 203/1982 provides for the coercive establishment of an agricultural lease relationship, as the heir who is also a professional agricultural entrepreneur or a direct farmer becomes tenant by law (ex lege) of the land owned by the hereditary community for a period of 15 years, which corresponds to the minimum duration of leases of agricultural land established/set by art. 1 of Law no. 203/1982. At the end of said period, art. 4 of Law no. 97/1994 states that the heirs who are considered leaseholders of the portions of rural land included in the other co-heirs’ quotas, pursuant to art. 49 of Law no. 203/1982, have the right to purchase, on expiration of the coercive lease of land established by law, ownership of said portions (at the average agricultural value of the land) together with stocks, appurtenances, and annexed sheds. The last part of the work explores the rules of acquisition of land/holding by domestic and foreign legal persons. There are no limitations in Italian law on the acquisition of agricultural companies and/or agricultural holdings by foreign persons, both individuals and companies. Foreign investments or ownerships of farm property are neither supervised nor forbidden. As a result, a foreign investment is not subject to any specific government approval or consent from a public authority before the acquisition of any shares in a domestic agricultural company. However, the acquisition of a farm property may be subject to general rules related to ownership acquisition, and planning and environmental rules applicable to any other property.

The Environment and its Protection as Fundamental Principle of the Italian Constitution: A Constitutional Innovation that Looks to Future Generations?

This article deals with two innovative aspects of Italian Constitutional Law. Firstly, the revision made by constitutional law no. 1/2022 that introduced (in art. 9 and 41 of the Italian Constitution) the principle according to which the Republic protects the environment, biodiversity, and ecosystems in the interest of future generations. Secondly, this article points out a recent trend in the constitutional reform process in Italy, particularly in the XVIII Legislature, that constitutional reforms are increasingly being implemented through specific/sectoral amendments. Apart from characterizing the indicated innovations, I also draw attention to their minor systemic consequences.

The Draft Italian Code of International Crimes

Abstract In a major effort of coordination, on 31 May 2022, the Committee of Experts appointed by the Italian Minister of Justice delivered the draft Italian ‘Code of International Crimes’ (CIC), whose purpose is to fully implement the Rome Statute into the domestic legal system by adopting substantive legislation on international crimes. The aim of this article is to give an account of the work of the Committee, outlining the prospective legislation and presenting the choices made within the process of implementation. The draft Italian law analysed here represents one example of the different implementation processes which followed the adoption of the ICC Statute, both with respect to the chosen method of implementation — the adoption of an ad hoc code of international crimes — and with respect to some substantive choices, such as the introduction of the crime of cultural genocide and the responsibility of legal persons for international crimes. Ensuring coherence with the fundamental principles of the domestic legal system was of course of utmost importance and guided the entire Committee’s work, in light of the state’s margin of appreciation within the implementation process. In this sense, the implementation process underlying the draft CIC entailed both a transposition of concepts and elements of the ICC Statute into the domestic legal order (internationalization of national laws) and their adaptation to the specific features of the domestic system (nationalization of international criminal law).

Suitability of electroencephalography in brain death determination: a monocentric, 10-year retrospective, observational investigation of 428 cases

BackgroundWe aimed to verify the usefulness of electroencephalographic (EEG) activity recording (that is mandatory according to the Italian law), in addition to two clinical evaluations spaced 6 h, among the procedures of brain death determination (BDD) in adult individuals.MethodsThe study is a monocentric, retrospective analysis of all BDDs performed in the last 10 years at Policlinico Le Scotte in Siena (Italy).ResultsOf the 428 cases revised (mean age 67.6 ± 15.03 years; range 24–92 years), 225 were males and 203 females. In total, 212 out of 428 patients (49.5%) were donors. None of the BDD procedures were interrupted due to the reappearance of EEG activity (neither for clinical reasons) at any sampling time, with the exception of one case that was considered a false negative at critical reinspection of the EEG. In 6/428 cases (1.4%), a cardiac arrest occurred during the 6 h between the first and second evaluation, thus missing the opportunity to take organs from these patients because the BDD procedure was not completed.ConclusionsOnce the initial clinical examination before convening the BDD Commission has ascertained the absence of brainstem reflexes and of spontaneous breathing, and these clinical findings are supported by a flat EEG recording, the repetition of a 30-min EEG twice over a 6 h period seems not to add additional useful information to clinical findings. Current data, if confirmed in other centers and possibly in prospective studies, may help to promote a scientific and bioethical debate in Italy, as well as in other countries where the EEG is still mandatory, for eventually updating the procedures of BDD.

Why is technocracy persistent in industrial risk? Empirical evidence from an in‐depth case study in Italy

AbstractRisk expertise is characterised by procedures that emphasise scientific and technical aspects of risk management and downplay citizens’ concerns and lay knowledge. In this paper, we aim at accounting for some of the reasons why technocracy is persistent in industrial risk expertise. Using the conceptual tools provided by the political sociology of expertise and based on empirical research conducted with mixed qualitative techniques, we study different types of expertise about industrial risk in the petrochemical area of Porto Marghera (Venice, Italy). The first one is performed by the Agenzia Regionale per la Protezione Ambientale del Veneto (ARPAV, Regional Agency of Veneto for Environmental Protection), which is responsible for chemical risk management, and the plants of the area. The second one is performed by the Assemblea permanente contro il pericolo chimico (APCPC, Permanent Assembly Against Industrial Risk), a citizens’ association of the neighbouring community of Marghera. In this case study, we show that technocratic procedures are persistent in industrial risk due to strategic relationships between the public administration in charge of risk regulation enforcement and private chemical companies, the absence of Italian laws on inclusive participatory arenas about industrial risk, and the characteristics of the citizens’ mobilisation, which focuses on plants’ delocalisation rather than challenging the ARPAV's and plants’ technocracy.

The First Jesuits and the First Jesuit Universities

John W. O’Malley S. J. in The First Jesuits described well the basic principles of the Jesuit educational ministry that shapeed Jesuit schools and universities. He did not discuss what constituted a Jesuit university because that was not the purpose of the book. After assessing the major contributions that O’Malley made to define the principles of Jesuit education, this article will pick up where O’Malley left off by describing the first Jesuit universities. There was not a single model of a Jesuit university. Instead, the Jesuits taught in four kinds of universities: the all-Jesuit university, the civic-Jesuit collegiate university, the civic-Jesuit Italian law and medicine university, and the civic university in which individual Jesuits taught but the Society had no institutional role.

Monitoring Cannabinoids and the Safety of the Trace Element Profile of Light Cannabis sativa L. from Different Varieties and Geographical Origin.

Non-intoxicating Cannabis sativa L. (i.e., hemp) is increasingly used for industrial, cosmetic and food applications. Despite the fact that the EU has not yet established a regulatory framework on hazardous compounds (i.e., toxic inorganic elements), the monitoring of cannabis products is of paramount importance to safeguard consumers, also in view of the species propensity to accumulate toxic metals from the environment. The aim of this work was to assess the compliance with Law n. 242/2016 and the safety of hemp inflorescences from different varieties and Italian regions by monitoring the main cannabinoids and trace elements. All samples complied with the Italian law due to a THC content <0.6% counterbalanced by high CBD levels. However, inflorescences grown in Apulia and Lombardy, and from Finola and Tiborzallasi varieties accumulated higher Cu, Co, Cr, Ni and Pb contents than products from other producing areas (i.e., Sicily and Latium) and varieties (i.e., Antal, Futura75, Kompolti and Carmagnola), being moreover above the limits set by the US Pharmacopeia. A principal component analysis confirmed that trace elements, including toxic metals, were mainly affected by the geographical origin more than the botanical variety. Overall, this study highlights the need to continuously monitor hemp products and establish the earliest related regulatory frameworks.

The Corporate Design of Investments in Startups: A European Experience

This is the first European study to conduct an extensive empirical research of startup charters. Our aim is to test whether the significant reforms of the law on the Italian società a responsabilità limitata (the GmbH-type limited liability company) were successful in making Italian corporate law more amicable towards startups and venture capital contracting techniques. We explain why, in the Italian context, charters provide significant information on financing deals, and we analyse more than 5000 charters of Italian startups. We find almost 200 charters that reflect the features predicted by the financial contracting theory, albeit with some significant variations in comparison to the US experience. The main one is that convertible preferred shares are not used. We report the large use of (non-convertible) participating preferred shares but also the increasing adoption of preferred shares that are functionally equivalent to US convertible non-participating preferred shares. The absence of convertibility mechanisms also explains the different structure of antidilution clauses in the Italian market. Hybrids are used to provide SAFE- and KISS-like contractual solutions. Co-sale clauses (tag-along and drag-along) are widespread and also highly standardized. US-like vesting schemes are equally observed. Some of the peculiarities we report depend on Italian law idiosyncrasies that are mainly the product of doctrinal constructions. However, corporate practice is pushing the envelope in its efforts to adapt Italian charters to startuppers’ and investors’ needs. From this standpoint, the Italian reforms look, though not completely, successful. Startup law appears to be transforming the European corporate law tradition.

Self-Employment in the EU and Italian Legal Systems: Recent Trends and Missed Steps

The article offers an assessment of the social protection granted to self-employed workers in the EU and Italian legal systems. It is structured as follows: first, the EU regulation currently in force is analysed to assess whether and to what extent self-employed workers can be considered entitled to social protection; second, self-employment under Italian law is analysed. The regulatory choices that set the Italian system apart from the current EU regulatory trends are highlighted, especially with regard to the use of self-employment as grounds for ad hoc regulation, and not only as the other side of the coin in relation to standard employment. In fact, since 2017, Italy has provided an ad hoc regulatory framework for self-employment, which, though not comparable to that for standard employees in terms of the level of protection, provides incipient protection specifically designed for self-employed workers. More recently, measures have been taken to support self-employed workers during market transitions and joblessness, especially in the acute phase of the Covid-19 pandemic, which in turn gave rise to the need for extraordinary income support measures self-employed workers. On the other hand, the EU continues to focus on related albeit clearly distinct issues: the fight against bogus self-employment and the extension of social protection to particularly vulnerable workers who fall outside the scope of protection of employment law. The proposed directive on platform work is the most recent evidence of this: by means of an unprecedented system of legal presumptions, it seeks to bring platform work within the regulatory scope of standard employment. In light of these developments, the concluding remarks argue that self-employment is worthy of attention on the part of the EU, not merely to avoid the circumvention of the obligations for standard employment, but above all to adopt ad hoc regulations that acknowledge and protect self-employed workers’ interests while safeguarding their social citizenship and dignity. It is argued that there is no conflict between the extension of the protection granted to employees on open-ended contracts to new types of work with a view to strengthening protection for self-employed workers. Self-Employment, Legal Protection, Pandemic, Economic and Social Measures

Probation in Italy: Legal culture and justice models

Quite recently, Italian Law 67/2014 extended the messa alla prova scheme to adult defendants, albeit not exactly with the same features as for juvenile ones. There are indeed some important differences: first about the types of offences and about Community Service Work, and also about the use of restorative justice practices. This paper suggests some questions, using the concept of legal culture: 1. the involvement of the various players, because they have varying degrees of power, resources and tools; 2. the probation scheme and its purposes, because it could be useful to re-habilitate, or to restore, or something else; 3. the use of restorative justice, which appears less than widely used, and the engagement of the victims of the crimes admitted to messa alla prova programmes. Legal culture is crucial for messa alla prova, as it benefits from the convergent approach of different views and professions.

The Regulation of State-Owned Maritime Property Concessions for Tourism and Recreational Purposes: The Continuing Conflict Between Italian and European Law

The subject of State-owned maritime property concessions for tourism and recreational purposes has long been a matter of dispute in the Italian legal system: on the one hand, Directive 2016/ 123/EC, as interpreted by European jurisprudence, mandates that existing concessions should not be automatically extended; on the other hand, the national legislature insists on granting the possibility of extension, to protect the contracts of concessionaires. The Regional Administrative Court (T.A.R.) of Lecce, Italy has recently intervened again on this point, submitting to the Court of Justice a new request for interpretation of both Directive 2016/123/EC and the national legislation which lastly extended the existing state concessions until 31 Dec. 2033.

The Protection of Platform Work in the Perspective of EU Law, between Individual and Collective Rights

From the perspective of labour law, the analysis of the topic of digital platforms focuses on the reconstruction of the protections applicable to platform work, which requires a distinction between individual and collective rights, i.e. between the question of the enforceability of individual rights provided by law in the employment relationship and the question of the recognition of collective rights that may allow for the introduction of rules throughout a negotiation process and the conclusion of collective agreements. The aim of this essay is to address the issue of the protection of platform work on both sides of individual and collective rights, from the perspective of European Union law and in the light of some useful insights from Italian case law and legislative interventions. This will help to understand the importance of the regulatory initiatives proposed and launched on this issue by the European Commission in 2021. European Union, Labour law, competition law, digital platform, platform work, worker, self-employed persons, collective agreements, data processing, private international law.

Article Index

<i>Recent amendments to the Italian Law of Civil Procedure (‘ICCP’) have not removed the existing ban on intra-corporate dispute (‘ICD’) arbitration for Italian listed companies. As we believe that ICD arbitration can provide redress to shareholders and improve management accountability, we criticize this approach and develop a ‘model’ for ICD arbitration that brings together (1) the corporate governance perspective, for a proper balance between the flexibility of the adoption of the arbitration clause and the protection of minority shareholders; (2) the capital markets perspective, for the disclosure to the public of relevant information in order to protect investors and build trust; and (3) the arbitration perspective, for the adoption of specific rules (a) to allow the participation of a potential great number of parties to the procedure, (b) to ensure the appointment of qualified and independent arbitrators in a typical multi-party dispute, and (c) to ensure that arbitrators may adopt conservatory and interim measures. Finally, we suggest that it might be beneficial to promote such model also at the EU level, as such benefit would be, at least, two-fold, both in terms of harmonization (or, better, level playing field) of the corporate law enforcement mechanisms and of serving the purposes to which recent EU corporate legislation seems to be leading.</i><br>