Italian Supreme Court Research Articles

Permanent Establishment, “Building Sites” and “Observations” on the Commentary: Some Comments in Light of the Recent Supreme Court Decision in Case No. 28059

The relationship between the general PE definition in article 5(1) of the OECD Model (2017) and the examples set out in the “positive list” in article 5(2) has been a longstanding issue. This topic was the subject of an “observation”, the legal effect and scope of which are uncertain. The recent decision of the Italian Supreme Court in Case No. 28059 (24 November 2017) has shed some light on these matters and is the focus of this note.

The Relationship between the EU Parent-Subsidiary Directive (2011/96) and Tax Treaties under Italian Case Law: Is Double Non-Taxation Always Undesirable?

In this note, the author examines the decision of the Italian Supreme Court of Cassation in Case No. 23367/2017, given on 6 October 2017, regarding the application of a tax treaty provision to dividends received by a foreign parent company benefiting from the provisions of the EU Parent-Subsidiary Directive (2011/96) and considers the implications of double non-taxation.

Italian Supreme Court considers scope of protection of football team trade marks in the context of unofficial merchandising

Italian Supreme Court considers scope of protection of football team trade marks in the context of unofficial merchandising

The Enforcement of Foreign Decisions Concerning Punitive Damages

On 5 July 2017, the United Sections of the Italian Supreme Court of Cassation delivered an interesting decision in which – for the first time – the Court opened the doors to punitive damages in the Italian legal system. In recent years, scholars have long debated on the role of punitive damages on the availability of punitive damages in the legal systems of the European Union. The case, which is obviously very interesting for the Italian perspective, offers at the same time the opportunity to understand if and under which circumstances punitive damages are admitted by case law also in other civil law countries.

Mixed contracts under the Brussels Ia Regulation: searching for a “jurisdictional identity”

This paper addresses the debated application of the jurisdictional regime in contractual matters provided in the Brussels Ia Regulation to cases involving mixed contracts, which comprise elements of a sale of goods, as well as a provision of services, and are not expressly regulated by that legal instrument. The starting point of the assessment is a recent Italian Supreme Court ruling, which is further compared with the relevant CJEU and national case law. Then, some broader considerations are proposed with regard to the actual desirability of specific provisions concerning these types of contracts within the Brussels system.

A hypothesis on the economic nature of labour law

This article aims to introduce in the scientific debate on the future of EU labour law and its relationship with human and fundamental rights, a redefinition of the collective labour rights in terms of ‘collective labour freedoms’. This redefinition is undertaken in different steps and initiates from the so-called ‘Laval doctrine’ that has emancipated the economic freedoms (mainly referred to as the freedoms of the employers) from the social rights (mainly referred to as the rights of workers and trade unions): collective labour freedoms do not question the outcome of the balance struck by the CJEU but the possibility of balancing per se. In order to do so, this contribution proposes a different methodology that synthesises a socio-historical analysis of social rights as materially considered and acted by social partners with a positive reading of fundamental charters and constitutions in which the freedom of association, the right to collective bargaining and industrial action are recognised as tools to regulate the interests of a social and economic nature (in form of an inseparable hendiadys) pursued by both sides of the labour market, employers and employees. Collective labour freedoms underline the inherent economic nature of labour law and, in line with the theoretical framework (but opposite in terms of political goals) with the German ordoliberals, they do not deny the freedom of market; moreover, they are valuable entitlements to achieve the social market economy as enshrined in Art. 3(3) of TEU. The article finally presents a possible outcome of the proposed methodology with an example taken from a pivotal case from the Italian Supreme Court on the limits to the exercise of the right to strike in non-standard forms.

Duties, Royalties and Customs Valuation Pending Italian Supreme Court Decision on the Inclusion of Royalties in Taxable Value

This note addresses the issue of the inclusion of royalties in a custom’s valuation declaration at the time of import. The analysis aims to provide a critical overview and interpretation of key issues regarding this topic. Against the backdrop of the new Union Customs Code (UCC), the author focuses, inter alia, on the ECJ’s decision in GE Healthcare GmbH (Case C-173/15) (which, although pertinent, refers to the previous regulatory framework). It is expected that more clarity and certainty, including for business players, will come with the upcoming rulings of the Italian Supreme Court.

Country note: The Reasonable Time of Tax Proceedings in the Italian Legal System

The judicial protection of the taxpayer’s fundamental rights is still not fully implemented in Italy nor even in Europe. Article 6 of the European Convention on Human Rights (the Convention) – with its dichotomy of ‘rights and civil obligations/criminal charges’ – avoids guaranteeing a full and an effective protection. EU law and the EU Charter of Fundamental Rights possess a strong and wider legal force, despite their being effective only within the competences under Article 5 of the EU Treaty. The jurisprudence of the Italian Supreme Court of Cassation currently still tends to exclude the automatic application of the guarantees of Article 6 of the Convention, even in tax penalty matters. In this context, the Italian Constitution and the so-called Pinto Law – which implements the remedy pursuant to Article 13 of the Convention to ensure that proceedings conclude within a reasonable time – should be taken into consideration. Although national legal systems cannot offer less protection than Conventional or EU law, it is entirely possible that national legal systems may provide greater protection than Conventional or EU law. From this perspective, the correct interpretation of Italian legal rules would allow the application of the principle of reasonable duration of proceedings, in the context of purely tax matters.

Comment on the Italian Supreme Court Decision “Vespa”

Comment on the Italian Supreme Court Decision “Vespa”

Tax Residence of Individuals in Italy: The Availability of a Permanent Home

This note discusses a recent decision of the Italian Supreme Court wherein it was held that, in determining whether an individual is resident in a state under a tax treaty’s tie-breaker rule, a stay at an unregistered domestic partner’s dwelling is sufficient to establish that the taxpayer “has a permanent home available to him” in a country.

Jurisdiction and Choice of Law Issues in Transnational Employment Rights Disputes

The Irish airline Ryanair is estimated to employ, either directly or through companies such as Crewlink or Brookfield Aviation, some 12,000 pilots, cabin crew and other workers operating from 87 bases throughout Europe. Cabin crew supplied by Crewlink are invariably employed under three year fixed-term contracts with a 12 month probationary period. Clause 6 of such contracts typically provides: “As the Client’s aircraft are registered in the Republic of Ireland and as you will perform your duties on these aircraft your employment is based in the Republic of Ireland.” Clause 37 then typically provides: “The employment relationship between the Company and you shall at all times be governed by the laws in effect and as amended from time to time in the Republic of Ireland. The Irish courts have jurisdiction in all matters relating to the execution and termination of this contract.” That clause, it should be noted, goes on to provide: “In the event that this clause becomes inoperable due to legislative changes, legal directive or any other change that the Company determines as material, then this contract will become null and void and your employment with the company will cease and you will be paid the statutory amount in lieu of notice.” The applicability of these two clauses has been considered in recent times by courts in Belgium, Germany, Italy and Norway. In Beyer v Ryanair (8 Ca 8031/09), the Bremen Labour Court ruled, on 1 April 2009, in a case brought by a cabin director based at Bremen airport, that the German courts did not have jurisdiction. This decision was followed by the Wesel Labour Court on 2 February 2010 in Dominguez v Crewlink (1 Ca 2253/09), a case brought by a flight attendant based at Weeze airport. Similar decisions were made by the Courts of Velletri and Bergamo in Iaccarino v Ryanair (985/2013) – flight attendant based at Naples airport – and de Blasio v Ryanair (920/2014) – pilot based at Bergamo airport – on 19 February 2015 and 12 March 2015 respectively. The decision of the Bergamo court was appealed to the Labour Section of the Brescia Court of Appeal which, by decision of 23 March 2016, dismissed the appeal (Order no.21/2016). It should be noted that the Italian Supreme Court, in a case relating to a flight attendant employed by a Belgian company on Belgian aircraft operating out of Fiumicino airport, had previously ruled that the Italian courts did not have jurisdiction in such cases (Cass. Joint Sections, Order no. 18509 of 20 August 2009). This article will focus on the litigation in Belgium and in Norway.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique. Rather, it is emblematic of broader themes and a broader problem−that of human beings’ prejudice against “strangeness” and our desperation for a hasty assessment of guilt or innocence‒qualities that can bleed into a legal system to the detriment of the quest for truth. In this Article, I explore the Amanda Knox case in the context of our defective ability to judge. In Part One, I use the conceit of a “What Not to Do” list to highlight the role played by Amanda’s “strangeness” in bringing about her arrest and two convictions. In Part Two, I re-examine the usual rationale for Amanda’s behavior and suggest that a better explanation lies in her age and developmental stage. In Part Three, I shift from the interpreted to the interpreters, arguing that the latter were powerfully affected by the Madonna/whore complex and cultural differences between Perugia and Seattle. In Part Four, I analyze the impact of the Italian legal system, with its deep roots in the inquisitorial paradigm and its limited adversarial reforms. This Article is based not only on scholarly research but also on my four sojourns in Italy, where I retraced Amanda’s footsteps and discussed the case with numerous legal experts. I had the opportunity to interview Amanda herself after she was free in Seattle.

Italian Supreme Court confirms eligibility of TV formats for copyright protection

Italian Supreme Court confirms eligibility of TV formats for copyright protection

‘Trouble Always Comes in Threes’: The Taricco Case Saga and the Italian Limitation Period in VAT Fraud

The European Court of Justice (ECJ) decision on the so-called Taricco case has been a source of significant debate among Italian scholars for the past year. The peculiarity of this case derives from the fact that more than one legal discipline is involved, ranging from tax law, criminal and procedural criminal law to constitutional law. The purpose of this article is therefore to examine the entire Taricco case by considering in turn the three different judicial phases which have characterized it. Beginning with the ECJ decision, it is then necessary to take into account how the Italian Supreme Court (Corte di Cassazione) has implemented in its case law the dispositions contained in the European decision. Finally, it is important to analyse the recent ordinance of the Italian Constitutional Court addressing again the ECJ and therefore opening new phases in the ongoing debate. Particular attention is given to the implications of this case on fundamental principles characterizing most of the European Member States and the role this decision might have in the adoption of the European Directive on the fight against fraud to the Union’s financial interests by means of criminal law that will replace Convention on the Protection of the European Communities’ Financial Interests (PFI) Convention.

Lambretta vrooming away: Italian Supreme Court rules that mark can be revoked for non-use even if it is still well-known

Scooters India Ltd v Brand Concern BV, Corte di Cassazione (Italian Supreme Court), First Chamber, judgment of 28 March 2017, No 7970/17 The ltalian Supreme Court has ruled that for a well-known trade mark to be revoked for non-use, the only condition is lack of genuine use during the statutory period; whether, due to its well-known character, the mark is still in the minds of consumers is not a relevant factor when deciding on a revocation request. Article 24(1) of the Italian Intellectual Property Code (IPC) lists two grounds of revocation of trade marks for non-use: i) if, within five years from the date of the registration, the mark is not used by the rightholder in relation to the products for which the mark is registered; ii) if the use of the mark is suspended for a continuous period of five years. Before the enactment of the IPC revocation for non-use was governed by Article 42(1) of the Royal Decree 929/1942. That provision was similar to the one in the IPC but not in relation to the length of the relevant non-use period. The original text of Article 42(1) of the Royal Decree 929/1942 provided, in fact, for a non-use period of three years. This period was subsequently extended by Legislative Decree 480/1992 to five years as is currently required by the IPC.

Current perspectives on data protection in Italy

The paper is aimed at privacy professionals with an in-depth knowledge of issues related to data protection and an interest in the Italian perspective on the topic. After briefly analysing the current institutional approach to the most significant concerns in the area of privacy policies, this contribution will provide a general overview of the current legal framework from the European level up to the domestic setting, also referring to the most significant decisions adopted by the Court of Cassation, the Italian Supreme Court. The study will reflect on the implications that such a legal background could have for current trends and will attempt to predict future developments — or criticalities — in the Italian data protection system.

Los crustáceos como seres sintientes y su maltrato. Sentencia nº 30177/2017 de la sección penal tercera de la Corte Suprema italiana

The Third Criminal Section of Italian Supreme Court with the sentence n. 30177 of the 16 June 2017 has established very relevant principles about protection of animals, deciding that “(human) interest in not animal suffering” is legally relevant and that “as for the protection of pets and companion animals, the detention of crustaceans on the ice integrates the crime of mistreatment (art 727 Italian criminal code ), because it causes important suffering, for economic reasons, with the consequence that between the economic balance and (human) interest in not animal suffering, this last one is prevailing”.

Comment on the Italian Supreme Court Decision Fiorucci

Comment on the Italian Supreme Court Decision Fiorucci

Improving Italian general practice training: the role of academia.

The modern Italian national health service is a Beveridgean system centred around GPs and funded by central taxation.1,2 In order to become eligible to work as a GP, Italian doctors need to undertake a 3-year postgraduate training in general practice.3–6 The latter training — governed nationally by the Italian Ministry of Health and locally by the various Italian regions — is organised by the primary care establishment.3–6 By contrast, all other postgraduate medical specialties in Italy are organised by universities and are governed by the Ministry of Education, University and Research (MIUR). On successful conclusion of the above GP training, Italian doctors are awarded a certificate of completion of training which is then mutually recognised in all member states of the European Union (EU).3–5 Italian doctors in postgraduate university specialty training (that is, non-GP trainees) had not benefited from any financial support from the government during their training until 1991. From 1992 until 2000 a tax-free monthly studentship of about 960 000 Italian Lira was introduced to support non-GP trainees; the latter bursary then became approximately €960 from 2000 to 2006 (after the introduction the Euro currency to Italy). Proper working contracts with an annual gross salary of €22 700 (a variable monthly amount of €1600–1700 after taxes) for this category of specialist trainees started in 2007. As a result, the Italian Supreme Court recently ordered the Italian government to pay compensation to Italian doctors training for medical specialities governed by the university authority from 1 January 1983 onward, in compliance with the Directives of the Council of the EU regarding stipends of doctors during postgraduate specialist training. The latter directives were accompanied by related decisions of regional tribunals. Unfortunately, these decisions concerned only doctors in training in secondary care specialties (that is, non-GP trainees), while Italian GP trainees currently still lack working contracts for their postgraduate clinical training in …

Comment on the Italian Supreme Court’s “Rotoloni” Decision

Comment on the Italian Supreme Court’s “Rotoloni” Decision