ITALY LAW DIGEST REVISER - Martindale · ITALY LAW DIGEST REVISER Studio Legale Beltramo Via V. Veneto 84 00187 Rome, Italy Telephone: 06 4817747 Fax: 06 4820281 Email: [email protected]

ITALY LAW DIGEST REVISERStudio Legale Beltramo

Via V. Veneto 8400187 Rome, Italy

Telephone: 06 4817747Fax: 06 4820281

Email: [email protected]

Reviser Profile

The Firm: Studio Legale Beltramo is an Italian law firm with an international corporate and financial practice. It aims to provide aprofessional service of high calibre. Through close working relationships with leading law firms throughout Europe and elsewhere, it is ableto offer its clients flexibility in access worldwide to focused local advice and an integrated approach to global transactions.

Areas of Practice: Studio Legale Beltramo provides a comprehensive range of legal services. These include all aspects of banking and capitalmarkets, corporate and corporate finance, project and asset finance, finance of local authorities, litigation and arbitration, intellectual property,information technology, commercial property, environment and labor. Clients include government entities, domestic and international companiesand private individuals in Italy and abroad. The firm is known for its innovative work and for developing viable individual solutions with clients.

ITALY LAW DIGEST(The following is a list of all Categories and Topics, including cross-references, covered in this Digest.)

Category/Topic Page

INTRODUCTIONCURRENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1GOVERNMENT AND LEGAL SYSTEM . . . . . . . . . . . . . . . . . . 1HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2OFFICE HOURS AND TIME ZONE . . . . . . . . . . . . . . . . . . . . 2

BUSINESS ORGANIZATIONSAGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2ASSOCIATIONS AND FOUNDATIONS . . . . . . . . . . . . . . . . . . 2CORPORATIONS AND PARTNERSHIPS . . . . . . . . . . . . . . . . . . 2FOREIGN CORPORATIONS . . . . . . . . . . . . . . . . . . . . . . . . 3PARTNERSHIPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

BUSINESS REGULATION AND COMMERCEBILLS AND NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3COMMERCIAL REGISTER . . . . . . . . . . . . . . . . . . . . . . . . 3CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3FRAUDS, STATUTE OF . . . . . . . . . . . . . . . . . . . . . . . . . . 4INFORMATION TECHNOLOGY, INTERNET AND NEW MEDIA . . . . . 4INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4LICENSES, BUSINESS AND PROFESSIONAL . . . . . . . . . . . . . . . 4MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION . . . . . . 4NEGOTIABLE INSTRUMENTS . . . . . . . . . . . . . . . . . . . . . . 5SALES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5SALES AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5UNFAIR COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CITIZENSHIPALIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5CITIZENSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6IMMIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CIVIL ACTIONS AND PROCEDUREACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6APPEAL AND ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . 6CONFLICT OF LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . 6DEPOSITIONS AND DISCOVERY . . . . . . . . . . . . . . . . . . . . . 6JUDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6LIMITATION OF ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . 6PRESCRIPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7REPLEVIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7SEQUESTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

COURTS AND LEGISLATURECOURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7LAW REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7LEGISLATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CRIMINAL LAWCRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

DEBTOR AND CREDITORASSIGNMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7ATTACHMENT AND SEQUESTRATION . . . . . . . . . . . . . . . . . . 8BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8EXECUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9EXEMPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9FRAUDULENT SALES AND CONVEYANCES . . . . . . . . . . . . . . . 9GARNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9HOMESTEADS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9INSOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9JUDGMENT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9PLEDGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DISPUTE RESOLUTIONALTERNATIVE DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . 9ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DOCUMENTS AND RECORDSACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Category/Topic Page

AFFIDAVITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10NOTARIES PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

EMPLOYMENTLABOR RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ENVIRONMENTENVIRONMENTAL REGULATION . . . . . . . . . . . . . . . . . . . . . 11

ESTATES AND TRUSTSADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12DEATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12DECEDENTS’ ESTATES . . . . . . . . . . . . . . . . . . . . . . . . . . 12DESCENT AND DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . 12ESTATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12EXECUTORS AND ADMINISTRATORS . . . . . . . . . . . . . . . . . . 12FIDUCIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12INTESTACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12TRUSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12WILLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FAMILYADOPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13DIVORCE AND SEPARATION . . . . . . . . . . . . . . . . . . . . . . . 13HUSBAND AND WIFE . . . . . . . . . . . . . . . . . . . . . . . . . . . 13INFANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13MARRIAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13MARRIED WOMEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14SEPARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

FOREIGN TRADE AND COMMERCECUSTOMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14EXCHANGE CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . . 14FOREIGN EXCHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . 14FOREIGN INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 14FOREIGN TRADE REGULATIONS . . . . . . . . . . . . . . . . . . . . . 14

IMMIGRATIONALIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14IMMIGRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

INTELLECTUAL PROPERTYCOPYRIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14PATENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15TRADEMARKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

MORTGAGESCHATTEL MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . 15COLLATERAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . 15MORTGAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PROPERTYABSENTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15ADVERSE POSSESSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15CONVEYANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15CURTESY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15DEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15DOWER AND DOWRY . . . . . . . . . . . . . . . . . . . . . . . . . . 15ESCHEAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15GIFTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15LANDLORD AND TENANT . . . . . . . . . . . . . . . . . . . . . . . . 15PERPETUITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16REAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TAXATIONADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16ALCOHOL, BEVERAGES AND TOBACCO TAXES . . . . . . . . . . . . 16BUSINESS TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16CONSUMPTION TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . 16CUSTOMS DUTY AND TAX . . . . . . . . . . . . . . . . . . . . . . . . 16EXCISE TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16GASOLINE AND SPECIAL FUELS TAXES . . . . . . . . . . . . . . . . 16GIFT TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16INCOME TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Category/Topic Page

INHERITANCE TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17LOCAL GOVERNMENT TAXES . . . . . . . . . . . . . . . . . . . . . . 17MOTOR VEHICLE TAXES . . . . . . . . . . . . . . . . . . . . . . . . . 18PROPERTY TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18STAMP DUTIES AND REGISTRATION TAXES . . . . . . . . . . . . . . 18STAMP TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18TAX INCENTIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18TREATIES AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . 18

Category/Topic Page

VALUE ADDED TAX . . . . . . . . . . . . . . . . . . . . . . . . . . . 18TRANSPORTATION

AIR LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18AUTOMOBILES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19MOTOR VEHICLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19SHIPPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TREATIES AND CONVENTIONSTREATIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ITALY LAW DIGEST

ITALY LAW DIGESTRevised for 2007 edition by

STUDIO LEGALE BELTRAMO, Attorneys at Law of Rome, Italy.

(Abbreviations used are: C. C.—Civil Code; C. C. P.—Code of Civil Procedure; C. N.—Code of Navigation; P. C.—Penal Code; R. D.—Royal Decree; D. M.—Ministerial Decree;D. L. L. T.—General Lieutenant Decree; G. P.—General Provisions of Civil Code; D. L.—Law Decree; D. P. R.—Decree of President of Republic; D.P.C.M.—Decree of President

of Council of Ministers)

Italy is member of EU. See also European Union Law Digest.

Note: Unless differently specified, revisions reflect law as of July 31, 2006.

INTRODUCTIONCURRENCY:

Former legal currency was the Italian lira. Bank of Italy holds monopoly on issuanceof currency notes. Foreign Exchange Control Office (Ufficio Italiano dei Cambi) exer-cises limited control on transactions between residents and nonresidents and/or involvingforeign currency. Nonresident foreigners when in Italy are practically subject to nocontrol at all or currency restrictions.

As of Jan. 1, 1999 owing to European Monetary Union (‘‘EMU’’) entering its thirdstage (so-called “transition period” which lasted up to Feb. 28, 2002), national currencywas gradually replaced with single currency called ‘‘EURO’’. Conversion rate betweenItalian Lira and EURO was irrevocably fixed at 1 EURO = 1,936.27 ITL. As from Jan.1, 2002 EURO notes and coins were issued and only EURO is deemed official currencyof EMU. EURO is therefore valid for both cashless and conventional payments trans-actions as legal tender of each of the 12 countries who joined EMU from outset (i.e.Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, theNetherlands, Portugal, Spain).

Eurosystem which is formed by the 12 national central banks in EURO area andEuropean Central Bank (“ECB”) is responsible, inter alia, for defining and implementingmonetary policy of EURO area and issuing banknotes. ECB which was established onJune 1, 1998 is independent of national central banks and central governments of Eu-ropean Union Member States and has its own budget.

See also category Foreign Trade and Commerce, topic Foreign Investments.

GOVERNMENT AND LEGAL SYSTEM:Established by the Constituent Assembly on Dec. 22, 1947 which enacted Constitution

which was amended by subsequent Constitutional laws (references to articles in this topicare to Italian Constitution).

Basic Principles.—Italy is a democratic republic, founded on work. The sovereigntybelongs to the people, and is to be exercised pursuant to forms and limits of Constitution.(art. 1). All citizens have equal social dignity and are equal under law without discrimi-nation for sex, race, language, religion, political opinions, personal or social status. (art.3). State and Catholic Church, within their own status, are independent and sovereign.Their relations are regulated by Lateranensys Pacts. (art. 7). All religions and confessionsare free under law. Juridical status of foreigners is regulated by law, in compliance withinternational treaties and rules. Foreigner, who in his country cannot have effectiveexercise of democratic liberties guaranteed by Italian Constitution, enjoys right of asylumin Republic’s territory. No extradition of foreigner is allowed for political crimes. (art.8-10). Italy repudiates war as offensive instrument against liberty of other peoples. Onequal footing with other States, Italy allows limitations to its sovereignty necessary forpurposes of peace and justice among nations. (art. 11).

Civil Rights.—Personal liberty and domicile are inviolable, except where arrests,searches or seizures are officially authorized by the judiciary. (arts. 13-14). Freedom ofmovement, meeting, association, religion, speech, writing and press are safeguarded. (art.16 to 21). Every person may act in lawsuit for protection of his rights and interests. (art.24). No one may be held criminally liable except under law enacted before punishablecrime is committed. (art. 25). Criminal liability is personal. Accused person is notdeemed guilty until final judgment is handed down. (art. 27).

Economic Rights.—The Republic protects labor in all forms and applications andtakes care of the formation and professional elevation of the workers. (art. 35). Theworker has right to a wage in proportion to the quality and quantity of his work, andin every case the wage must assure to him and to his family a free and dignifiedexistence. (art. 36). Compensation, unemployment insurance, old age benefits are es-tablished. (art. 38). Organization of ‘‘unions’’ is free. But the organization must be ona democratic basis, and the unions must register with the local or central offices of thegovernment, according to law. (art. 39). The right to strike is recognized, within the limitsestablished by law. (art. 40). Private initiative is free. (art. 41). Private ownership isrecognized and safeguarded, but property may be expropriated against payment of anindemnity where the public interest so requires. (art. 42).

Political Rights.—All citizens of full age (18 years), men and women, are electors.Ballot is personal, equal, free and secret. Its exercise is civic duty. (art. 48). All citizenshave right to form or join political party. (art. 49). They have right to petition Chambers(Chamber of Deputies and Senate). Defense of Fatherland is sacred duty of citizen.Military service is compulsory within limits established by law. (art. 52). Every citizenis obliged to contribute to public expenses according to his ability to pay. (art. 53).

Parliament consists of two Chambers (Houses): Chamber of Deputies and Senate ofthe Republic. (art. 55). Chamber of Deputies (630 deputies) is elected by direct, universalsuffrage: one deputy for every 90,000 inhabitants. All electors who have reached age of25 years on election day are eligible for Deputy. (art. 56). Senate of the Republic (315senators) is elected on regional basis. Each Region elects one Senator for every 180,000inhabitants. No Region can have less than seven Senators but for Molise Region (two

Senators) and Val d’Aosta Region (one Senator). (art. 57). Senators are elected by direct,universal suffrage. Electors for Senate are those who have attained 25 years of age.Electors who have attained 40 years of age are eligible for Senator. (art. 58). FormerPresidents of Republic are de jure Senators for life. (art. 59). Both Chamber of Deputiesand Senate are elected every five years. (art. 60). Further to referendum aimed atrepealing prevailing electoral law, new electoral procedure was enacted in 2005 forelection of both Chamber of Deputies and Senate with reintroduction of proportionalsystem but subject to certain aspects of former majority system being kept to grantstability. Two Chambers must be convened for first session within 20 days after elections.According to art. 62 of Italian Constitution, two Chambers must be convened by law onfirst working day of Feb. and Oct. Each Chamber may also hold special sessions atrequest of its President, President of Republic or one-third of its members. Legislativefunction is exercised collectively by the two Chambers (Deputies and Senators). (art. 70).Laws are promulgated by President of the Republic. (art. 73). Before promulgating,President may ask Chambers to reconsider; but if Parliament approves law again, pro-mulgation is mandatory. (art. 74).

The President of the Republic is elected jointly by the two Chambers (Parliament).Three delegates from every region take part in election. Ballot is secret and majority oftwo-thirds of assembly is required. After third ballot absolute majority is sufficient. (art.83). To be elected President of Republic citizen must have attained 50 years of age. (art.84). President is elected for term of seven years. (art. 85). Whenever President ofRepublic cannot fulfill his functions, same are exercised by President of Senate. In caseof permanent impediment or death or resignation of President of Republic, President ofChamber of Deputies orders election of new President of Republic. President of Republicis head of state and represents national unity. He orders elections of new Chambers;authorizes presentation of bills by government; promulgates laws; orders popular ref-erendums according to constitution; appoints state officers in such cases as provided bylaw; accredits diplomatics and ratifies international treaties; is Chief of Armed Forces;declares state of war following deliberations of Chambers; is chairman of SuperiorCouncil of Judiciary; gives pardons and reduces penalties. (art. 87). He may dissolveeither or both Chambers. (art. 88). In order to be valid his acts must be countersignedby proponent minister and in case of laws by President of Council as well. (art. 89).

The Government of the Republic consists of the President of the Council and ofMinisters who form, together, Council of Ministers. President of Council is appointed byPresident of Republic, who also appoints Ministers under proposal of President ofCouncil. (art. 92). Government must seek and obtain vote of confidence from Chambers.

The Judiciary.—Justice is administered in the name of the People. (art. 101). Thejudicial power is vested in the ordinary justiciary. Extraordinary or special justiciariesmay not be created. (art. 102). The Council of State and the other administrative judi-ciaries are qualified to adjudicate on matters concerning the protection of the individualinterests from the action of the executive and also the civil right in the cases indicatedby law. The Court of Accounts has jurisdiction over matters of public accounts. (art. 103).Military Tribunals in war time have special jurisdiction established by laws; in peace timethey have jurisdiction only for military crimes perpetrated by members of Armed Forces.Judiciary constitutes autonomous order, independent from any other power. Appoint-ments, transfers, promotions, disciplinary provisions, removals, relative to judges arevested in Superior Council of Judiciary, whose chairman is President of Republic. (art.104).

Constitutional Court decides on controversies relating to constitutional legality oflaws, on conflicts of jurisdiction between powers of State, between State and Regionsas well as between Regions. It also has jurisdiction over indictments against Presidentof Republic and Ministers. (art. 134). Constitutional Court is composed of 15 judgesappointed as follows: one-third by President of Republic; one-third by Parliament andone-third by Supreme Judiciaries. Their term is nine years. (art. 135). When Courtdeclares constitutional illegitimacy of law, latter ceases to have effect day followingpublication of decision. (art. 136). There is no appeal against decisions of this Court. (art.137).

Regions, Provinces, Municipalities.—Republic is divided into Regions, Provinces,and Municipalities. Regions are autonomous institutions with own powers and functions;regions of Sicily, Sardinia, Trentino-Alto Adige, Friuli-Venezia Giulia, and Valle d’Aostaenjoy special autonomy. (arts. 114 to 116). Provinces and Municipalities are autonomousinstitutions and represent decentralized subdivisions of State.

Amendments of the Constitution may be adopted by each Chamber through twosuccessive resolutions, second to be adopted not earlier than three months from firstresolution. Second resolution must be approved by absolute majority of members of eachChamber. (art. 138). Upon requisition being made by qualified majority of each Chamber,five regional Councils or 500,000 electors, any such law is to undergo “referendum”approved by two thirds majority over second poll. Republican form cannot be subject toconstitutional revision. (art. 139).

See note at head of Digest as to 2006 legislation covered.

See Topical Index in front part of this volume.ITL – 1

HOLIDAYS:

Holidays are generally computed in time for payment but if time limit is due to expireon statutory holiday it shall be postponed to next business day by operation of law. (art.2963 C.C. and 155 C.C.P.).

Following is list of recognized public holidays: All Sundays, Jan. 1, Epiphany (Jan.6), Apr. 25, Labour Day (May 1), Easter Monday, Republic Day (June 2), AssumptionDay (Aug. 15), All Saints’ Day (Nov. 1), Conception Day (Dec. 8), Christmas Day (Dec.25), Boxing Day (Dec. 26). (Law No. 260 dated May 27, 1949, as am’d and supple-mented).

OFFICE HOURS AND TIME ZONE:

Italy is in the +01:00 GMT time zone, subject to variations in case of daylight savingtime.

Office hours are generally from 9 a.m. to 5 p.m. Public offices are generally open topublic from 9 a.m. to 1:00 p.m. and are open in afternoon on certain days from 2:30 p.m.to 4:30 p.m. Banks are generally open from 8:30 a.m. to 1:30 p.m. with brief open periodlater in afternoon. Post offices are open from 8:30 a.m. to 2:00 p.m. with some of themproviding certain services until later in the day.

BUSINESS ORGANIZATIONSAGENCY:

Mandate (Power of Attorney).—The mandate is a contract whereby one party com-mits to effect one or more transactions on behalf of another. (C. C. 1703). Agent orattorney in fact is empowered to carry out not only transactions which he has beenspecifically authorized to do but also to perform any other acts that may be required inorder to fulfil mandate. (C. C. 1708). Agent, however, may not exceed powers conferredupon him by principal without incurring personal liability, although principal may sub-sequently ratify such ultra vires acts.

The agent may, however, depart from the instructions originally received when con-fronted with unforeseen circumstances unknown to principal and such as cannot becommunicated to him in reasonable time, on assumption that principal would have givenhis approval. (C. C. 1711). Agent may not entrust others with performance of mandatewithout authority of principal; if he does, he is answerable for acts of such substitutes.(C. C. 1717). Mandate terminates on following grounds, viz., (a) when its duration hasexpired or object for which it was intended has been achieved, (b) when it has beenrevoked by principal or renounced by agent, or (c) when either principal or agent hasdied or become incompetent. (C. C. 1722). In cases referred to under (b) above, principaland agent are respectively liable for damages to other if revocation or renunciation ofmandate was unjustified.

A mandate given also in the interest of the agent or of third parties is irrevocable.If agent had been given power to act in name of principal formal requirements of

instrument evidencing power of attorney must be same as those that are required fortransactions which are object of power of attorney. (C. C. 1392). Powers of attorneyexecuted abroad may be required to be authenticated and legalized or apostilled, pursuantto Hague Convention, Oct. 5, 1961. See categories Documents and Records, topicAcknowledgments; Treaties and Conventions.

Contract of Commission.—When agent is appointed with understanding that he mustpurchase or sell property for account of principal and in name of agent, so-called‘‘contratto di commissione’’ arises. Principal is called ‘‘committente’’ and agent ‘‘com-missionario.’’ Effect of this contract is that third persons cannot sue principal and viceversa. ‘‘Committente’’ must give ‘‘commissionario’’ commission (provvigione), that is,percentage on business transacted. (C. C. 1731-1736).

Sales Agency.—By sales agency agreement, evidence of which, pursuant to Legis-lative Decree No. 65 of Feb. 15, 1999, is to be given in writing, agent undertakespermanently to promote making of contracts for account of principal within specifiedterritory. Exclusivity is implied. Any agreement attributing to agent liability for defaultby any third party is not allowed pursuant to Law No. 526 of Dec. 21, 1999. Agent isentitled under some circumstances to commission on contracts concluded and to sev-erance allowance upon termination not exceeding one year of commissions computed onaverage of last five years or of years of life of contract if less. Sales agency agreementsmay be entered into only with such persons or companies as are only enlisted on registerof professional agents (‘‘agenti o rappresentanti di commercio’’) kept by appropriateChamber of Commerce. (C. C. 1742-1753, Legislative Decree No. 303 of Sept. 10, 1991and Law No. 204 of May 3, 1985 as subsequently am’d and supplemented). However,European Court of Justice held that insofar as it provides that sales agency agreementsare void if entered into with persons not registered with Chamber of Commerce, suchItalian legislation is contrary to rules set out in EU Directive No. 86/653.

ASSOCIATIONS AND FOUNDATIONS:

Associations and foundations can be granted status of legal entities by registration withregister of legal entities appropriately kept by prefectures. (D.P.R. No. 361 of Feb. 10,2000, repealing Art. 12 C.C.). Associations and foundations must be established by publicact. Associations and foundations are governed by relevant provisions of Civil Code andby their own Memorandum and Articles of Association. Foundations can also be estab-lished by will. (C. C. 14). Associations and foundations may acquire property, accept giftsor inheritances or receive legacies without any governmental authorization. As to com-panies, see topic Corporations and Partnerships.

CORPORATIONS AND PARTNERSHIPS:

These are dealt with in arts. 2247 to 2554 of Civil Code as replaced by LegislativeLegislative Decree No. 6 of Jan. 17, 2003 as am’d by Legislative Decree No. 37 of Feb.6, 2004 (“Legislative Decree No. 6”) which has introduced major reform to corporatelegislation. Reform has entered into force as of Jan. 1, 2004. Legislative Decree No. 6might still be subject to further amendments.

Different forms of corporations and partnerships are provided for therein, as shown infollowing breakdown:

Società per Azioni.—This is the form that is closest to the American concept of acorporation. Certain formalities must be complied with in connection with incorporatingone. Currently, società per azioni may be incorporated by contract or by unilateral deed.The Memorandum and Articles of Association must be executed before notary public.Pursuant to Arts. 2327 and 2346 of Civil Code as replaced by Legislative Decree No.6, capital subscribed for by shareholders cannot be less than €120,000 and shares maybe without denomination. As of Jan. 1, 2004, shareholders are required to pay at timeof incorporation 25% of initial subscribed capital and, in case of one shareholder only,entire subscribed share capital. Each shareholder’s liability is limited to shares subscribedby him. Sole shareholder’s liability is limited to shares subscribed by him provided that(i) entire subscribed share capital has been paid at time of incorporation and (ii) own-ership of all shares has been properly disclosed by filing declaration with Register ofEnterprises failing which sole shareholder will be liable without limitation in case ofinsolvency of company for obligations of company which arose in period in which shareshave belonged to such sole shareholder. Shares can be issued in registered or in bearerform, at option of shareholder, unless otherwise provided by articles of association or byspecial laws. Each share carries one vote. Preferred shares may be issued entitling holdersto privileges in connection with distribution of company’s profits, and in reimbursementof capital upon dissolution of company, but they may in no event carry more than onevote. Preferred shares may be limited in voting rights, but in such case may not exceed50% of share capital. Corporations are entitled to issue shares, even if not preferred,without voting rights or with limited voting rights, but value of such shares shall notexceed 50% of share capital. In no event, shares will carry more than one vote. Leg-islative Decree No. 6 has also introduced wide range of new types of shares attributingdifferent kind of rights as well as financial instruments, other than shares, to be issuedin favor of employees of company and attributing certain economic and administrativerights. Such financial instruments do not attribute, however, rights to vote in sharehold-ers’ meetings save for specific items provided by articles of association. Furthermore asof Jan. 1, 2004, on one hand, it is no longer required that number of shares attributedto each shareholder is proportional to portion of share capital subscribed, while, on otherhand, it is possible to issue shares linked to economic profits of specific area fallingwithin corporate business. Companies whose shares are listed in Stock Exchange mayissue saving-shares without voting rights. Saving-shares may be issued in bearer form.There is generally no limitation as to amount of capital that may be subscribed byforeigners or to foreigners being directors or officers of company. See categories Citi-zenship, topic Aliens; Foreign Trade and Commerce, topic Foreign Investments.

As of Jan. 1, 2004, corporations have possibility to segregate one or more assets tobe exclusively destined for specific business. Pursuant to such new rules, corporations’creditors who do not challenge within 60 days from registration of relevant resolutionwith Register of Enterprises have no recourse on separate patrimony. In any case,corporations are entitled to establish segregate assets with aggregate value higher than10% of net total assets of corporation.

Shareholders’ meetings are ‘‘ordinary’’ and ‘‘extraordinary’’. In order to attend meet-ing articles of association may require shareholders to deposit their shares with companyor designated bank at least five days prior to date of meeting. Before Jan. 1, 2004‘‘ordinary’’ meetings dealt on majority vote of those present or on such different quorumsand majorities as provided in C.C. or in articles of association, with approval of annualaccounts, appointment of directors and auditors, and their relevant remunerations andwith such other matters as were reserved to their jurisdiction by articles of associationor submitted to them by directors. ‘‘Extraordinary’’ meetings dealt with changes inarticles of association, issuance of debentures and appointment of liquidators; theirresolutions are generally valid if passed by holders of more than half of capital stock,or such other majorities as provided in C.C. or in articles of association.

As of Jan. 1, 2004, functions of shareholders’ meetings vary depending on model ofmanagement selected in articles of association. In corporations which opt for appointmentof supervisory council, “ordinary” meeting has less power and do not deal with approvalof annual accounts. In corporations without supervisory council, “ordinary” meetingsmaintain almost same powers as before Jan. 1, 2004, but no reservation of matters areprovided any more by articles of association, and directors are no longer entitled tosubmit matters to shareholders’ meetings unless expressly authorized by articles ofassociation and without prejudice to their personal liability. In both cases, ordinarymeetings must be convened at least once a year within term set forth in articles ofassociation and no later than 120 days from end of fiscal year. Pursuant to LegislativeDecree No. 6, “extraordinary” meetings do not deal with issuance of debentures, unlessotherwise provided by special laws or by articles of association. Extraordinary meetings’resolutions are generally valid if passed by holders of more than half of capital stock orsuch higher majorities as provided in articles of association. Directors are competent forissuance of debentures.

Before Jan. 1, 2004 management of company was vested in one or more directors,appointed by ordinary shareholders’ meeting for maximum term of three years. Ap-pointment could be renewed.

Each company must have had Board of Auditors (Collegio Sindacale) composed of atleast three members (individuals, partnerships or companies) chosen from Register ofOfficial Auditors and appointed for period of three years, whose duties included exami-nation of administration of company and of its books, certification of balance sheets, etc.(C.C. 2397-2409, as supplemented and am’d).

Pursuant to Legislative Decree No. 6, as of Jan. 1, 2004, companies have optionamongst three different models of managements: if it is not otherwise provided by articlesof association, model of management is very similar to previous one, with board ofdirectors or sole director and board of auditors which however is charged with exami-nation of companies’ books and certification of balance sheets by virtue of expressprovision of articles of association only and in companies whose shares are not listed onstock exchange. In other cases, accounting supervision is exercised by external auditorsregistered with appropriate records.

Companies, however, are entitled to opt for either (a) model of management consistingof management board (composed of at least two members) and supervisory board (com-posed of at least three members) which deals, inter alia, with approval of annual accounts

INTRODUCTION MARTINDALE-HUBBELL LAW DIGEST - 2007



CORPORATIONS AND PARTNERSHIPS . . . continued(dualistic system) or (b) model of management consisting of management board andsupervisory board whose members are appointed by management board among its owndirectors (monistic system).

Companies whose shares are quoted on stock exchanges must file accounts, minutesand other data with Stock Exchange and Securities National Commission and are subjectto investigation by such Commission. In said companies some of main tasks normallyperformed by board of auditors are entrusted to auditing firms. (See category BusinessRegulation and Commerce, topic Securities.) Minimum share capital for companiesoperating investment funds (Società di Gestione di Fondi Comuni di Investimento) andof investment companies with floating share capital (SICAV) is €1,000,000 from Jan. 1,1999. Other special regulations for companies whose shares are listed on Stock Ex-change, for companies operating investment funds and for investment companies withfloating share capital are set forth in Law No. 58 of Feb. 24, 1998 as am’d (see alsocategory Business Regulation and Commerce, topic Securities, subhead Intermediation).

Società a responsabilità limitata.—It is equivalent of German G.M.B.H. and does notsubstantially differ from preceding form in that shareholders have limited liability, ex-cept: (a) company’s stock must not be less than €10,000; (b) each share is called‘‘quota,’’ no certificate thereto being issued by company and no solicitation to investmentin connection therewith being allowed, and company’s charter may provide for them tobe untransferable. Otherwise shares may be negotiated through assignments recorded incompany’s books. As of Jan. 1, 2004: (a) it is not necessary to specify duration ofcompany; (b) board of auditors or external auditor are required only for company of thistype with company’s stock being €120,000 or more; (c) company may issue debenturesto extent provided in its articles of association. Company may be organized by unilateralact and may have only one quotaholder. Under certain conditions, and in case of in-solvency, sole quotaholder is personally liable above company stock for company’sobligations.

Società in accomandita per azioni and Società in accomandita semplice.—These in-volve combination between limited and unlimited liability of partners, ‘‘soci accoman-danti’s’’ liability being limited to their shares whereas ‘‘soci accomandatari’’ are liablejointly and without limitation. No substantial change applies to company of this kind asresult of entering into force of Decree No. 6.

Società in nome collettivo.—This is a general partnership whose members have un-limited liability for its obligations. The memorandum of association containing all thepartnership’s and individual partners’ relevant data must be deposited with the Registrarof Business Enterprises. The powers and duties relative to the operation of the partnershipmay be conferred upon one or more of the partners who are answerable to the otherpartners.

Società semplice.—This is simplest form of partnership in that it requires no formali-ties. Unless otherwise provided by agreement between partners, and such agreement ismade public or known to third parties, operation of partnership, which however may notengage in industrial or commercial activities, is conducted severally by each of partners,each having full and unlimited liability for obligations of partnership.

Effective as of Jan. 1, 2004, transformation of either società in nome collettivo orsocietà semplice into any kind of stock companies needs to be approved by majority ofpartners of company.

Finally there are two forms that stand out by themselves; these are:Associazione in partecipazione.—This is practically a capitalization deal that may be

formed as a result of one party (‘‘associante’’) agreeing to accept the contribution(‘‘apporto’’) of another party (‘‘associato’’) against a share in the profits. The ‘‘asso-ciante’’ retains the operation of the business. The ‘‘associante’’ acquires all rights andassumes all obligations with third parties, but the ‘‘associato’’ may be made to share inthe losses in direct proportion to his shares of the profits, although in no event may hislosses exceed the value of his contribution.

Società Cooperative.—Cooperative Societies may be incorporated with a limited orunlimited liability. They are subject to several restrictions and government controls, suchas that their board of directors may on determined grounds be ousted by the appropriategovernment authorities and replaced by a commissioner appointed to carry on the busi-ness, or by a receiver entrusted with winding it up. In addition to above, pursuant toDecree No. 6, recourse before courts are possible against directors in certain circum-stances.

Each of the partners may not hold more than €50,000 worth of shares and these maybe assigned only with consent of board of directors whose approval is also required foradmission of any new member. Effective as of Jan. 1, 2004, each of partners may holdup to €100,000 for Societies other than operating in agricultural fields or formed forwork or production purposes. In Cooperative Societies with more than 500 partners, suchlimit may be increased up to 2% of share capital.

Special provisions are set forth in respect of transformation, merger and split off ofcompanies. (C. C. 2498-2504-decies). New provisions apply also in such connectionfollowing entry into force of Decree No. 6 including, inter alia, possibility of transfor-mation of companies pending insolvency proceeding.

Foreign corporations are regulated by law of State where procedure for constitutionhas been perfected, in particular in respect of: juridical nature; name; constitution,transformation and dissolution; capacity; organs’ powers and organization; representativepowers; members’ rights, duties, access and exclusion; liabilities for corporations’ ob-ligations; consequences of breach of law and by-laws. (Art. 25 of Law No. 218 of May5, 1995 as am’d and supplemented). However, Italian law will be applicable if corpo-ration’s main office or main activities are located in Italy. Corporations organized inforeign countries which establish in Italy one or more branches with permanent repre-sentation must comply with provisions of Italian law in respect of deposit and registrationof articles of association, publication of their balance-sheet and of names of represen-tatives, and of operation of their business. (C. C. 2507-10). No substantial changes havebeen made to existing provisions as result of entering into force of Decree No. 6 exceptthat application and interpretation of Italian legislation on foreign corporations is to bemade pursuant to principles of European communities’ system. See categories BusinessRegulation and Commerce, topic Commercial Register; Citizenship, topic Aliens; For-eign Trade and Commerce, topic Foreign Investments; and European Union Law Digest,category Business Organizations, topic Corporations.

Taxes.—See category Taxation, topic Taxes, subhead Direct Taxes, catchlines LegalEntities Income Tax (IRPEG) and Local Income Tax (ILOR).

FOREIGN CORPORATIONS:

See topic Corporations and Partnerships, subhead Foreign Corporations.

PARTNERSHIPS:

See topic Corporations and Partnerships.

BUSINESS REGULATION ANDCOMMERCE

BILLS AND NOTES:

Drafts or promissory notes must be dated and it must be specifically stated thereinwhether it is a promissory note (vaglia cambiario) or bill of exchange (cambiale tratta).It must have written therein sum to be paid, date of maturity and place of payment, andmust be signed by drawer or maker with his name and surname. (R. D. Dec. 14, 1933,n. 1669).

Provisions in promissory notes for payment of interest are of no effect except in caseswhere these are payable by sight or at certain time after sight. Promissory notes may beendorsed by one or more persons who are all individually liable for their payment.Payment may be guaranteed by any person, even by the endorser, who must sign hisname and the word ‘‘avallante’’ or ‘‘per avallo’’ and is liable if acceptor or maker andthe assured endorser fail to pay.

If note is not paid the same must be protested by an authorized officer within two daysafter day of maturity. Notes can be enforced by summary execution. Notice of protestmust be sent to endorser and to drawer within four days from day of protest, otherwiseendorser is not subject to summary execution proceedings.

Promissory notes which do not comply with the stamp tax law are valid in all respectsexcept that they cannot be enforced by summary execution. Forms of promissory notesbearing the appropriate stamp duty are available for purchase. The limitation for actionson promissory notes against acceptor is three years from the day of maturity, for actionsagainst drawer and endorser it is one year from the day of the protest. Any endorser whohas paid note or against whom an action for redress is instituted by another endorser, hasaction for redress against drawer and any prior endorser; limitation of foregoing actionis six months from day of payment or, alternatively, from day when above-mentionedaction for redress was commenced. If limitation terms have expired, action for unjustenrichment may be brought against acceptor, drawer or endorser within a year from whenaction for redress is lost.

Law No. 43 of Jan. 13, 1994 introduced new instrument called ‘‘cambiale finanziaria’’which is payable to order and issued in series by companies, entities and enterprises andhaving minimum amount of Lire 100 million per note with maturity of not less than threemonths and not more than 12 months from issue date. As to legal requirements andapplicable provisions, this instrument is equivalent to ordinary promissory note; it canbe endorsed only with clause ‘‘without guarantee’’ or equivalent; it must contain wording‘‘cambiale finanziaria’’, other elements required by law for promissory note and indi-cation of return of any kind agreed upon.

Issue of ‘‘cambiali finanziarie’’ is considered ‘‘collection of savings’’ pursuant toprovisions and subject to limitations of Banking Law.

Italy is party to Geneva Convention of June 7, 1930 on promissory note and bill ofexchange subject matter. Such convention was implemented in Italy by R.D. of Aug. 25,1932 No. 1130.

COMMERCIAL REGISTER:

All those (inclusive of individuals, partnerships and corporations) who exercise ac-tivity organized for production or exchange of goods or services shall be registered inregister, called ‘‘Registro delle imprese’’. (C.C. 2188). Rules for implementation of aboveRegister—which is instituted within structure of each Chamber of Commerce—havebeen issued pursuant to Art. 8 of Law No. 580, Dec. 29, 1993 (see D. P. R. No. 581 ofDec. 7, 1995). In preceding period Register was substituted, for business carried out bycompanies (inclusive of partnerships and corporations), by records kept by special officesof Tribunals.

Pursuant to Law No. 340 of Nov. 24, 2000, subscription requests and acts relatingthereto may be filed by enterprises, with exception of individuals, through electronicsupports.

CONTRACTS:

Under Italian law ‘‘a contract is the agreement of two or more parties to establish,regulate or extinguish a patrimonial legal relationship among themselves’’. (C.C. 1321).There is general power in all competent persons to freely enter into contractual agree-ments, limited only by public policy and unlawful motives. There is also general powerin same persons ‘‘to make contracts that are not of the types that are particularlyregulated, provided that they are directed to the realization of interests worthy of pro-tection according to the legal order’’. (C.C. 1322).

The necessary requisites of a contract are: (1) agreement of parties, to be reached asdescribed below under subhead Formation of Contracts; (2) causa, which is economicreason for contract. Unlawful causa will affect validity of contract. Causa is unlawfulwhen contrary to mandatory rules, public policy or moral or when contract constitutesmeans for evading application of mandatory rules; (3) object, which must be possible,lawful, determined or determinable (C.C. 1346); (4) form, when prescribed by law underpenalty of nullity (e.g.: contracts that transfer ownership of immovables must be madeby public act or private writing). (C.C. 1325). See also category Documents and Records,topic Electronic Signing.

Parties may condition effectiveness or termination of contract upon future and un-certain event (respectively suspensive and resolutive condition) and may also set forthinitial or final time limit.

ITALY LAW DIGEST BUSINESS REGULATION AND COMMERCE



CONTRACTS . . . continuedFormation of Contracts.—Contract is formed when he who made offer has knowl-

edge of acceptance of other party (C.C. 1326); acceptance which does not conform tooffer is equivalent to new offer. Both offer and acceptance may be revoked provided, asto latter, that revocation comes to knowledge of offeror before acceptance and, as toformer, that if performance in good faith is begun by acceptor offeror is bound toindemnify him for expenses and losses sustained.

Parties in conduct of negotiations and formation of contract must conduct themselvesaccording to good faith, subject to being exposed to pre-contractual liability.

Dissolution of contracts providing for mutual counterperformance may occur in caseof important nonperformance of its own obligation by party who has already receivedcounterperformance. However, nonperformance may be excused by supervening impos-sibility of performance, by all cases of force majeure and in event that, due to extraor-dinary and unforeseeable facts, performance has become exceedingly burdensome.

Dissolution of contracts may also occur when parties have agreed to insert in contractexpress resolutive clause (C.C. 1456) providing that contract will be resolved if specifiedobligations are not performed in designated manner, or when time fixed for performanceby one of parties is of essence in interest of other (C.C. 1457). Another case of disso-lution of contract occurs when other party serves on defaulting party written notice toperform within appropriate time, declaring that, unless performance takes place withinsuch time, contract shall be deemed dissolved. (C.C. 1454).

Nullity of Contracts.—Contract is void if contrary to mandatory rules, if one ofrequisites set out in C.C. §1325 is missing, if causa is unlawful, if motives common toboth parties of contract are unlawful, if object lacks in requisites listed above and in anyother case established by law. (C.C. 1418). Relevant action is not time barred and canbe instituted by anyone who has interest in it or can be declared by court of its ownmotion.

No validation of void contract is possible unless provided by law. Nevertheless, voidcontract can produce effects of different contract of which it has requisites of substanceand form, whenever, considering objective sought by parties, it is to be deemed that theywould have wished it if they had known of nullity. (C.C. 1424).

Voidable Contracts.—Contract is voidable if, at time of execution, one of parties waslegally incapable of contracting, if it was incapable of understanding or intending andsuch contract results in grave prejudice to it, provided that other party acted in bad faith.(C.C. 1425). Furthermore, annulment of contract can be demanded by contracting partywhose consent was given by mistake, extorted by duress or obtained by fraud. (C.C.1427).

Action for annulment can only be instituted by those persons in whose interest it isestablished by law and within five-year prescription period.

Rescission of Contract.—Contracts entered into in state of danger (i.e.: unfair con-ditions because of necessity, known by other party, of saving itself or others from presentdanger of serious personal injury) (C.C. 1447) or entered into at unfair conditions andsuch disproportion being result of state of need of one party of which other availed itselffor its advantage (C.C. 1448) can be rescinded upon demand of injured party and withinone year period from formation (C.C. 1449).

Applicable Law.—Obligations arising from contracts are governed by Rome Con-vention of June 19, 1980 (made effective by Law No. 975, Dec. 18, 1984) withoutprejudice to other applicable treaties. See category Civil Actions and Procedure, topicConflict of Laws.

Government contracts are, as a rule, awarded on basis of bids, while system of directnegotiations is admitted exceptionally, in view of particularity of contract. Contracts arenormally entered into on basis of general conditions and specifications and performancebond is usually required.

Distance Selling Contracts.—New legislation for consumers’ protection in distanceselling contracts subject matter has recently been enacted by Legislative Decree No. 206of Sept. 6, 2005 (“Consumption Code”) which has repealed Legislative Decree No. 185of May 22, 1999. Provisions aim at providing consumers with wider protection by settingout, inter alia, specific pieces of information to be made available to them prior toexecution of contract and right of withdrawal from contract. Rights conferred uponconsumers by such decree cannot be disposed of. Freedom in choosing law other thanItalian to govern distance selling contract cannot import derogation of principles forconsumers protection embodied in said decree.

FRAUDS, STATUTE OF:

The following contracts are void unless they are in writing and subscribed by theparties: sales of immovables, contracts of co-ownership of immovables, contracts es-tablishing or cancelling easements and other rights in immovables, contracts establishingendowments, leases for more than nine years, settlement agreements, etc. (C.C. 1350).Preliminary contracts are void unless entered into in same form prescribed by law forrelevant definitive contract. (C. C. 1351). If parties agree that certain contract be enteredinto in specific form, such form is deemed essential for validity of contract. (C. C. 1352).

Oral testimony is in general not sufficient to prove contracts exceeding €2.58 in value.(C. C. 2721). Such limit to be overridden in cases provided by law.

INFORMATION TECHNOLOGY, INTERNET AND NEW MEDIA:

Electronic Signing.—Through Law No. 59 of Mar. 15, 1997 and relevant imple-mentation provisions, general reform aimed at recognizing effects of electronic signatureshas been enacted.

Very innovative principle contained in Law No. 59 is that deeds, data, documents andcontracts made by public entities or private individuals or companies by means ofelectronic or telecommunication instruments as well as their filing or transmissionthrough electronic or telecommunication instruments are valid and binding in all respects,provided that certain criteria set forth in relevant implementation provisions of Law No.59 are met. Subject to compliance with such implementation provisions, electronicdocument to which electronic signature has been affixed has same value (also for pur-poses of evidence) as document drafted on ordinary paper and signed by hand. It will

be possible, pursuant to new legislation, to confer special time validation to documentswhich will constitute evidence, also against third parties, of date and time of documents.

Complex technical requirements and specifications encircle concept of electronic sign-ing. Solution chosen in order to assure genuineness of documents processed throughelectronic data processors is based on cryptography with two asymmetrical keys (one ofwhich is of public domain while other is known only by holder) by which document canbe coded or encoded, respectively, or vice versa. Correspondence between public keysand relevant holders shall be assured by appropriate certification given by authorizedcompanies registered in public register.

By Presidential Decree No. 445 of Dec. 28, 2000 consolidated act on administrativedocumentation has been adopted containing, inter alia, rules which electronic documentsand transmission through electronic means, even in relations amongst private individualsor companies, must comply with in order to be deemed as valid and binding. Most ofprovisions of that Decree have been repealed as of Jan. 1, 2006, pursuant to provisionsof Legislative Decree No. 82 of Mar. 7, 2005.

INTEREST:

The legal rate of interest is currently equal to 2.5% and may be subject to yearlyupdating by way of Ministry of Economy and Finance Decree. Any rate above thisthreshold must be evidenced in writing. (C. C. 1284).

Law authorizes Government to establish limits beyond which interest rate is to beconsidered usurious in relation to types of transactions. Pursuant to Art. 644 P.C., asamended by Law No. 108 of Mar. 7, 1996, interest rate, although lower than suchmentioned limits, is deemed usurious if, having regard to characteristics of specifictransaction and to average interest rate applied to similar transactions, unbalance shouldresult in relation to loan, also taking into account economical and financial difficultiesof person owing payment of interest.

If usurious interest rate is agreed upon between parties of specific transaction, relevantclause is void and interest shall not be payable thereunder.

On Dec. 29, 2000, Italian Government has issued Law Decree No. 394, converted intoLaw No. 24 of Feb. 28, 2001, which provides that loan interest rates are deemed to beusurious only if interest rate agreed by parties exceeds applicable usurious rate at timesuch interest rate was agreed pursuant to such Law Decree, as amended by decision ofConstitutional Court, rates applicable on interest on fixed rate loans entered into beforeDec. 31, 2000 that are payable after Dec. 31, 2000 will be automatically substituted, ifusurious, by substitute rate set forth by decree.

Pursuant to Legislative Decree No. 231 of Oct. 9, 2002 new rules have been introducedwith respect to default interest to be applied in commercial transactions either betweenenterprises, including, but not limited, to professionals, or between enterprises and publicadministration. Payments to be made under such commercial transactions are subject todefault interest accruing, unless differently agreed by parties, as from day following duedate at rate equal to rate of main refinancing instrument of Central European Bankapplied to its most recent refinancing transaction entered into on first day of relevantsemiannual period increased by spread of seven basis points. Moreover, any agreementbetween parties derogating to provisions of law is void if, taking into account certaincircumstances including, but not limited to, fair trading practice, nature of goods orservices to which specific contract relates, status of parties and commercial relationshipsbetween them, such agreement results to be seriously disadvantageous for creditor.

LICENSES, BUSINESS AND PROFESSIONAL:

Among Governmental licenses are: licenses (abilitazioni) for the exercise of intellec-tual professions (architects, engineers, doctors, etc.); driving licenses; passports; licensesfor operating motor vehicles; licenses to carry weapons; licenses to operate bars andplaces of entertainment; licenses for discharge of sewage waters, etc.

Licenses to operate stores, trade licenses, etc. are issued by local Chambers of Com-merce and by municipalities. Legislative Decree No. 114 of Mar. 31, 1998 introducednew rules pursuant to which in cases and subject to conditions contemplated therein,simplified procedure may be adopted to obtain license to operate stores by submissionof application to competent local authorities certifying that relevant legal requirementshave been complied with. Failure by such authorities to expressly negate said requisitionwithin prescribed time limits is to be construed as grant of license being requested.

MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION:

No Italian law provided specific provisions for antitrust rules until enactment of LawNo. 287 of Oct. 10, 1990 setting out ‘‘Rules for the Protection of Competition and ofMarket’’. Law No. 287 as integrated by D.P.R. No. 217 of Apr. 30, 1998, by Law No.57 of Mar. 5, 2001 and by Legislative Decree of July 4, 2006 substantially parallels arts.85 and 86 of EEC Treaty as well as Council’s Regulation No. 4064 of Dec. 21, 1989as replaced by Council’s Regulation No. 139 of Jan. 20, 2004, concerning mergers andacquisitions having community dimension, by prohibiting within Italian domestic market(i) undertakings between enterprises having purpose or resulting in prevention, restrictionor distortion of competition (art. 2); (ii) abuses of dominant position (art. 3); (iii)concentration operations having effect of creating or strengthening dominant position soas to eliminate or reduce competition in substantial and lasting manner (art. 6).

Undertakings may, while concentration operations falling within certain quantitativethresholds, must, be communicated in advance to Antitrust Authority. Failure to file anysuch mandatory prior communication results in company being liable to fine.

When banks or broadcasting and publishing industries are concerned, some ad hocAuthorities are entitled to carry out Antitrust Authority’s duties.

Against administrative measures adopted by Antitrust Authority appeal before Re-gional Administrative Court competent for Region of Lazio may be lodged. Law No. 287applies both to private and, subject to certain exceptions, to public undertakings as wellas to those with prevalent State participation, which are significant portion of Italianmarket. See topic Unfair Competition and European Union Law Digest, category Busi-ness Regulation and Commerce, topic Monopolies, Restraint of Trade and Competition.

Law No. 249 of Jan. 31, 1997 as amended and supplemented instituted “Authority forguarantees in communications and rules on telecommunications and radio-television

BUSINESS REGULATION AND COMMERCE MARTINDALE-HUBBELL LAW DIGEST - 2007



MONOPOLIES, RESTRAINT OF TRADE AND COMPETITION . . . continuedsystems” which is entrusted, among other things, with functions of regulating relation-ships between operators and users of telecommunication infrastructures; promotes in-terconnection of domestic telecommunication system with those of other countries; andcontrols dominant positions in radio and television sector.

NEGOTIABLE INSTRUMENTS:

See topic Bills and Notes.

SALES:

Seller’s principal obligations include delivery of goods or other property sold, transferof all ownership rights, warranties that goods or property have qualities promised ornecessary for proper use, and are exempt from defects. (C. C. 1476).

Buyer’s principal obligation is payment of price. (C. C. 1498). When defects arediscovered, buyer may request either voidance of sale or reduction of price. (C. C. 1492).In case of voidance of sale, seller must return consideration received, as well as expensesand disbursements incurred by purchaser in connection with sale and, in any event, buyeris entitled to damages. (C. C. 1494).

Sale may be rescinded on account of ‘‘lesione enorme’’ in price; that is, when priceagreed upon is less than one-half equitable price, and in effecting purchase, buyer tookadvantage of seller’s state of need. (C. C. 1448).

Warranties.—Unless parties have expressly agreed otherwise, seller is by law boundto hold purchaser harmless from eviction, in form of redress of damages in addition toreimbursement of purchase price. (C. C. 1483). Purchaser summoned by third party, whoclaims to have rights with respect to goods sold, must, however, in turn summon seller,otherwise he forfeits warranty.

Seller is furthermore bound to warrant that goods sold are exempt from defects. (C.C. 1490). Purchaser must notify seller of any possible faults within eight days from dateof discovery of same, under penalty of forfeiture of claim. Statute of limitation for relatedaction is one year from delivery. (C. C. 1495). Also, such warranty can be contractuallyexcluded, provided there is no bad faith by seller. (C. C. 1490-1491). New provisionsaimed at providing consumers with higher protection have been introduced by LegislativeDecree No. 206 of Sept. 6, 2005 (“Consumption Code”) which has repealed Arts. 1519bis to 1519 nonies of Italian Civil Code. See also European Union Law Digest, categoryCivil Actions and Procedure, topic Product Liability.

Notices Required.—See subhead Warranties, supra.

Applicable Law.—See topic Contracts.

International Sale of Goods.—United Nations Convention on Contracts for the In-ternational Sale of Goods (Wien Convention of Apr. 11, 1980) was brought into forcein Italy as from Jan. 1, 1988, by Law No. 765 of Dec. 11, 1985. See category Treatiesand Conventions, topic Treaties and Part V, Selected International Conventions.

SALES AGENCY:

See category Business Organizations, topic Agency, subhead Sales Agency.

SECURITIES:

General.—By Law No. 216 of June 7, 1974, as repeatedly amended and supple-mented, Stock Exchange and Companies National Commission (Commissione Nazionaleper le Società e la Borsa, commonly referred to as ‘‘CONSOB’’) has been established.Its main functions and powers are: as restated also by Legislative Decree No. 58 of Feb.24, 1998 as am’d to establish stock exchange calendar, to authorize operations of com-panies carrying out intermediation for trade of securities (SIM, q.v.), to adopt second-tierlegislation to implement Legislative Decree No. 58 as amended, to act as intermediarycompanies’ watchdog in conjunction with Bank of Italy, to approve systems of quotationand price listing of securities, stocks, bonds, etc., to investigate into companies whoseshares are listed on stock exchange and to authorize listing of shares of new companies,to establish regulations for and to authorize public offerings of securities. Powers ofCONSOB have been strengthened and widened pursuant to Law No. 62 of Apr. 18, 2005as amended. Activity of organization and administration of regulated markets of financialinstruments is in nature of enterprise and is run by Borsa Italiana S.p.A., company limitedby shares.

Revised and up-to-date Rules relating to markets organized and managed by BorsaItaliana S.p.A., to take into account relevant principles set out in Consolidated Laws inFinancial Intermediation subject matter (Legislative Decree No. 58 of Feb. 24, 1998 asam’d), have been implemented by CONSOB Regulation No. 11764 of Dec. 22, 1998.Any such Regulation sets out, inter alia, conditions for bringing securities to listing onStock Exchange.

Insider Trading.—Pursuant to Consolidated Laws on Financial Intermediation (Leg-islative Decree No. 58 of Feb. 24, 1998 as am’d [latest amendment by Law No. 262 ofDec. 28, 2005]) persons who hold confidential information by virtue of their membershipof administrative, management or supervisory bodies of company, or their shareholdingin company’s capital or by reason of their job, profession or office are prohibited from:(a) Acquiring, selling or carrying out other transactions for their own account or foraccount of third party involving, directly or indirectly, financial instruments using suchinformation; (b) disclosing such information to others outside normal exercise of theirjob, profession, or office; or (c) recommending or inducing others, on basis of suchinformation, to carry out any of transactions referred to in subparagraph (a). Suchprohibition shall apply also to any person who, possessing inside information by virtueof preparation or execution of criminal activities, carries out any of actions referred toin paragraphs (a), (b) and (c). In event of violation of said prohibitions, person who isresponsible for such violation will be punished with imprisonment between one and sixyears and fine between €20,000 and €3,000,000 (such sanctions must be doubledpursuant to Law No. 262 of Dec. 28, 2005 within limits referred to in Italian CriminalCode). Without prejudice to penal sanctions applicable when action constitutes criminaloffence, pecuniary administrative sanction between €100,000 and €15,000,000 shall alsobe applied. Administrative sanction shall also apply to any person who, possessing inside

information and knowing or being capable of knowing through ordinary diligence itsinside nature, carries out any of above mentioned actions.

Market Manipulation.—Pursuant to new provisions introduced by Law No. 62 ofApr. 18, 2005 in Consolidated Laws on Financial Intermediation, imprisonment forperiod between one and six years and fine between €20,000 and €5,000,000 (suchsanctions must be doubled pursuant to Law No. 262 of Dec. 28, 2005 within limitsreferred to in Italian Criminal Code) shall be imposed on any person who diffuses falseinformation or carries out simulated transactions or other devices likely to producesignificant alteration to price of financial instruments. Without prejudice to penal sanc-tions applicable when action constitutes criminal offence, pecuniary administrative sanc-tion between €100,000 and €25,000,000 shall be imposed on any person who, throughmedia, including Internet, or through any other means, diffuses information, rumors orfalse or misleading news that give or are likely to give false or misleading indicationson financial instruments.

Intermediation.—Legislative Decree No. 58 of Feb. 24, 1998 as am’d, (“LegislativeDecree 58/98”) which came into effect as from July 1, 1998, repealed Legislative DecreeNo. 415 of July 23, 1996 and rearranged provisions relating to financial intermediaries,investment services, collective savings management, financial markets and issuers offinancial instruments. Investment services (trading on own account and in favor of thirdpersons, placement, management, receipt and transmission of orders and intermediationof securities) and accessory services (such as custody and management of securities,granting loans to investors for transactions relating to securities to which lender inter-venes, consultancy, services ancillary to issue and placement of securities, exchangeintermediation in connection with rendering of investment services) may be carried outonly by (A) investment companies and (B) banks authorized pursuant to LegislativeDecree 58.

Investment companies may be (i) SIMs authorised by CONSOB, having heard opinionof Bank of Italy, provided that certain capital adequacy and operational requirements arecomplied with; (ii) EU investment companies operating through permanent establishmentin Italy or on cross border basis subject to prior communication to Bank of Italy andCONSOB given by home country supervisory entity; (iii) non-EU investment companiesauthorized by CONSOB, having heard opinion of Bank of Italy, subject to compliancewith certain requirements.

Banks may be (i) Italian authorized banks; (ii) EU banks operating in Italy throughpermanent establishment or on cross border basis subject to prior communication to Bankof Italy given by home country supervisory entity; (iii) non-EU banks authorized by Bankof Italy having heard opinion of CONSOB, subject to compliance with certain require-ments. Financial intermediaries registered with special register held by Bank of Italy mayonly exercise following activities: (i) trading derivatives on own account and (ii) place-ment with or without prior subscription of securities or with or without guaranteeingvis-à-vis issuer. Bank of Italy and CONSOB exercise supervisory powers over investmentcompanies, banks and financial intermediaries.

Legislative Decree 58/98 has been implemented by CONSOB Regulation No. 11522of July 1, 1998 as amended.

Public Offerings.—Those who wish to proceed through public offering with purchase,sale or offer for subscription and exchange of securities such as shares, debentureswhether convertible or not or other instruments or rights or otherwise solicit publicsavings shall notify CONSOB, publish prospectus and observe rules laid down byLegislative Decree 58/98 as supplemented by CONSOB Regulation No. 11971 of May14, 1999, as amended.

Those who wish to purchase or exchange securities listed in stock exchange or tradedon so-called ‘‘restricted market’’ such as shares, convertible debentures or other instru-ments or rights entailing acquisition of voting rights, as well as those who wish totakeover listed company shall comply with additional rules set out by Legislative Decree58/98 and comply with specific rules and procedures laid down by CONSOB. Specificrules and procedures are applicable to public offerings in context of privatisation pro-ceedings.

Reporting.—Any acquisition of participation exceeding 2% in company listed onstock exchange must be reported to CONSOB and to company whose shares are pur-chased within five days after entering into of transaction, as well as any acquisition bylisted company of participation exceeding 10% in non-listed company must be reportedto CONSOB and to company whose shares are purchased. Variations of above share-holdings meeting specific thresholds, are to be communicated to CONSOB as well.(Legislative Decree 58/98 as supplemented by CONSOB Regulation No. 11971 of May14, 1999, as am’d).

Any acquisition or disposal of “qualified” shareholding in share capital of SIM, ofinvestment company with floating share capital (SICAV) and of company for manage-ment of savings (SGR), is subject to prior communication to Bank of Italy. “Qualified”shareholding is defined as to SICAV and SGR by Bank of Italy Regulation of Apr. 14,2005 and as to SIM by recent Bank of Italy Regulation of Aug. 4, 2000.

UNFAIR COMPETITION:

The law on unfair competition (concorrenza sleale) is primarily based on judicialdecisions interpreting Civil Code. Under §§2598 to 2601 C. C., use of another firm’sdistinctive name, use of symbols for purpose of confusing customers, spreading rumorsas to quality or value of competitor’s goods, or doing of any act not in conformity withnormal ethical standards of business is prohibited. Cease and desist order, as well asdamages, may be obtained by successful plaintiff. See category Intellectual Property,topic Trademarks and European Union Law Digest, category Business Regulation andCommerce, topic Monopolies, Restraint of Trade and Competition.

CITIZENSHIPALIENS:

See category Immigration, topic Aliens.

ITALY LAW DIGEST CITIZENSHIP



CITIZENSHIP:

See category Immigration, topic Aliens.

IMMIGRATION:

See category Immigration, topic Immigration.

CIVIL ACTIONS AND PROCEDUREACTIONS:

Rules governing procedure of civil actions are set forth in Code of Civil Procedure(C.C.P.). Courts must decide all civil cases on basis of law, except in certain cases, orupon request of parties on rights which may be disposed of by parties, when decisionsmay be adopted on basis of equity. Civil actions are commenced normally by service ofsummons. Special actions (especially in matters of urgency) are commenced by filingapplication with competent court. Parties must be represented before courts and mag-istrates (except in certain cases before Justice of Peace, and before Tribunal in certaincases of personal separation of spouses and labor matters) by attorney who acts by virtueof proxy.

Foreign law, if embodied in statutes, is proved by producing copy of the statutes, ascontained in official publications (Official Gazette, Codes, etc.). If foreign law is notstatutory, it is proved by production of cases, law reports and opinions.

Foreign claims are proved by written evidence or by testimony (see topic Depositionsand Discovery).

Legislative Decree No. 5 of Jan. 17, 2003 has recently introduced (effective as of Jan.1, 2004) specific judicial procedure to be followed for litigation concerning, inter alia,corporate law, capital markets, banking law (if issue arises between banks) and publicworks finance.

Pursuant to D.P.R. No. 123 of Feb. 13, 2001 electronic and telecommunication in-struments should be introduced in court proceedings subject to enactment of Decreeestablishing technical modalities so that it will be possible to draft, communicate andserve any document, brief, summons and judgment of proceeding through electronic andtelecommunication systems.

See also topic Limitation of Actions; category Courts and Legislature, topic Courts.

APPEAL AND ERROR:

Any judgment rendered in first degree may be appealed to next higher court (save forfew minor cases). Against second degree judgment appeal may be filed with supremecourt (Court of Cassation) but only on points of law. Second degree judgment may alsobe appealed before same court (so-called “revocation”) which issued it when: (1) it isresult of dolus of one of parties against other; (2) it is result of false testimony orevidence; (3) after judgment new essential documents are found which party was pre-vented from exhibiting before because of force majeure or of act of other party; (4) thereis error in fact, resulting from documents; (5) judgment is inconsistent with anotherjudgment between parties; (6) judgment is result of dolus of magistrate.

CONFLICT OF LAWS:

Conflicts of laws and scope of Italian jurisdiction are regulated by Law No. 218, May31, 1995:

(a) Status and competency of persons are governed by their national law. (art. 20).(b) Corporations, associations, foundations and any other private or public entity are

regulated by law of State where their procedure of constitution has been perfected. Italianlaw is however applicable if main office or main business of such entities are located inItaly. (art. 25). (See category Business Organizations, topic Corporations and Partner-ships, subhead Foreign Corporations.)

(c) Personal relations between husband and wife having same citizenship are governedby their national law and those between husband and wife of different citizenship aregoverned by law of State where their matrimonial life is mainly located. (art. 29).Patrimonial relations between husband and wife are governed by law applicable to theirpersonal relations; however, parties may agree in writing to apply national law of oneof them or law of State where at least one of them is resident. (art. 30).

(d) Personal relations between parents and children are governed by national law ofchildren. (art. 36).

(e) Prerequisites, constitution and revocation of adoption are governed by national lawof adopting person or persons (if common) or by law of State wherein both adoptingpersons reside, or mainly conduct their matrimonial life at time of adoption. However,Italian law shall always apply when adoption of minor which attributes to him status oflegitimate child is applied for to Italian court. (art. 38).

Patrimonial and personal relations between adopted and adopting person/persons andtheir relatives are governed by national law of adopting person or persons (if common)or by law of State wherein both adopting persons reside or mainly conduct their mat-rimonial life. (art. 39).

(f) Inheritance is governed by national law of deceased at time of death. However,testator may, by testament, expressly choose applicability of law of State where he isresident. (art. 46).

(g) Formalities for execution of testament are governed by law of place where in-strument is executed or by national law of testator or by law of State where testator wasresident or domiciled at time of execution or death. (art. 48).

(h) Personal property (movables) and real properties (immovables) are governed bylaw of place of their location. (art. 51).

(i) Gifts are governed by national law of donor at time of donation. However, donormay, by express declaration inserted in or attached to instrument of donation, chooseapplicability of law of State where he is resident. (art. 56).

(j) Formalities for execution of gifts are governed by law applicable to them or by lawof State where instrument was executed. (art. 56).

(k) Obligations ex contractu are governed by Rome Convention of June 19, 1980(made effective by Law No. 975, Dec. 18, 1984) without prejudice to other applicable

treaties. (art. 57). Noncontractual obligations are governed by law of place where theyarose. (arts. 58, 61, 62).

Foreign law is not applicable if its effects are contrary to public order. In this case,alternative foreign laws shall be applied if provided by above-mentioned rules or, in theirabsence, Italian law shall be applied. (art. 16).

DEPOSITIONS AND DISCOVERY:

Taking of evidence in EU Member State, directly by judge of another Member Stateor indirectly by judge of Member State where evidence has to be taken on commercialand civil matters is regulated by EC Regulation No. 1206/2001 of May 28, 2001.

When depositions are to be taken outside of the country and EC Regulation No.1206/2001 does not apply, request (letters rogatory) is sent by court through ForeignMinistry, to Italian Consulate of state or place where witness is living. Testimony is takendirectly before Italian consul (when witness is Italian citizen) or transmitted by consulto proper authority in foreign state (when witness is foreigner). (C.C.P. 204).

Italy is party to Convention on the Taking of Evidence Abroad in Civil or CommercialMatters signed in The Hague on Mar. 18, 1970.

JUDGMENTS:

The decisions emanating from a judge in Italy are of three classes:(a) Ordinanze.—All orders in the course of a suit on the instance made by one party

with citation of the other party or ex officio.(b) Decreti.—Orders made on instance of a party without summoning the other or ex

officio.(c) Sentenze.—Decisions or opinions based upon facts and points of law (judgments).

A judgment is ‘‘contumaciale’’ if rendered by default; ‘‘non definitiva’’ (interlocutory)when given in course of suit upon some intermediate object, without finally deciding suit.

There are not, in the Italian law system, all the specifications and definitions ofjudgments provided in the American statutes. The decision is given upon the facts andthe demands brought by the parties.

Foreign Judgments and Arbitration.—Foreign judgments are recognized in Italy without need of resorting to any proceeding

when: (i) judge who pronounced it could take cognizance of case in accordance withItalian principles on jurisdictional competence; (ii) document introducing proceedingswas made known to defendant pursuant to provisions of law of place where proceedingswere held and essential rights of defense were not infringed; (iii) parties entered ap-pearance in conformity with laws of place of proceedings or their failure to appear wasdeclared in conformity with that law; (iv) judgment became res judicata in accordancewith law of place where it was pronounced; (v) judgment is not contrary to anotherjudgment rendered by Italian judge and which became res judicata; (vi) no proceedingsare pending before Italian judge for same matter and between same parties which wereinitiated prior to foreign proceedings; (vii) its provisions do not produce effects contraryto public policy. (art. 64, Law No. 218 of May 31, 1995).

In case of noncompliance with or objection to recognition of foreign judgment, orwhen it is necessary to proceed with forceful execution, any person in interest may applyto court of appeals of location of implementation for determination of existence ofprerequisites for recognition.

Foreign judgment jointly with decision allowing application referred to above, con-stitute entitlement to implementation and forceful execution.

If objection to foreign judgment is raised in context of other proceedings, decision onobjection is made by judge with effect limited to those proceedings only.

Special regime is set forth by EC Regulation No. 44/2001 of Dec. 22, 2000 concerningjurisdiction, recognition and enforcement of decisions on civil and commercial matterswhich substituted, among Member States of European Union, with exception of Denmarkand such territories, forming part of Member States which are excluded pursuant to Art.299 of EU Treaty (“Member State”), Brussels Convention of Sept. 27, 1968 (“BrusselsConvention”) on jurisdiction and enforcement of decisions on civil and commercialmatters, ratified and brought into force in Italy by Law No. 804 of June 21, 1971. UnderEC Regulation No. 44/2001 no prior special proceedings are required with view torecognizing and enforcing decisions, provided that: (1) decision is not contrary to publicpolicy of Italy; (2) summons has been properly and timely served on defendant who didnot enter appearance in proceedings; (3) decision does not conflict with any otherdecision rendered between same parties in Italy or with another decision rendered abroad,which may be recognised in Italy; (4) court of foreign state has not contravened pro-visions of EC Regulation No. 44/2001, paragraphs 3, 4, and 6.

Party seeking enforcement of decision in Italy pursuant to EC Regulation No. 44/2001shall have to file with competent Court of Appeal request together with followingdocumentation: (a) authenticated copy of decision; (b) statement pursuant to Arts. 53, 54and Annex V of EC Regulation No. 44/2001. Any party may challenge decision on suchrequest submitting recourse to competent Court of Appeal, which decision, in turn, canbe challenged before Court of Cassation.

Awards.—Recognition of foreign arbitration awards is subject to filing of applicationwith Presiding Judge of Court of Appeal of place of residence of other party (or, if suchparty is not resident of Italy, with Presiding Judge of Rome Court of Appeal) togetherwith certain documents. Foreign award is declared enforceable by decree (against whichopposition may be filed) except when: (i) dispute could not be settled by arbitration underItalian law; or (ii) award contains provisions contrary to Italian public policy. (C.C.P.839).

LIMITATION OF ACTIONS:

Actions must be brought within ten years with the following principal exceptions (C.C. 2946-2962):

Five Years.—Actions to recover damages, annuities, incomes for life, rent or interestdue; allowances due by reason of termination of employment; actions on partnershipagreements.

Two Years.—Actions to recover damages arising from the driving of vehicles.

CITIZENSHIP MARTINDALE-HUBBELL LAW DIGEST - 2007



LIMITATION OF ACTIONS . . . continuedEighteen Months.—Actions against carriers if shipment was made elsewhere than in

Europe.

One Year.—Actions to recover broker’s commission; actions against forwarders; ac-tions to recover damages by reason of collision of ships, insurance on shipping or breachof chartering contract; actions against carriers if the shipment was made in Europe.

Certain actions, like those by employees and teachers (under salary for period ex-ceeding one month), professionals or notaries are subject to rebuttable presumptiveprescription after lapse of three years.

See also categories Business Regulation and Commerce, topic Bills and Notes; Prop-erty, topic Adverse Possession.

PRESCRIPTION:

See topic Limitation of Actions.

REPLEVIN:

‘‘Azioni possessorie’’ are those actions which lie to regain possession not only ofmovables (personal chattels) but even of immovables, whose possession has been takenviolently or by stealth. Furthermore this action is aimed at protecting possession ofimmovables against disturbance. Action must be brought within one year from dispos-session. Recovery or reintegration is ordered by Tribunal upon petition, without stay andswiftly against any person even against owner of goods. (C. C. 1168-1170).

SEQUESTRATION:

See category Debtor and Creditor, topic Attachment and Sequestration.

COURTS AND LEGISLATURECOURTS:

Giudice di Pace (Justice of Peace) only has jurisdiction in civil matters involvingmovable property whose value is not in excess of €2,582.28, or involving circulation ofvehicles or boats and not exceeding €15,493.71 in value, and in certain special pro-ceedings. (C.C.P. art. 7).

Tribunali Civili e Penali (Civil and Penal Tribunals) have general jurisdiction, civiland penal, and appellate jurisdiction as to Justice of Peace’s judgments.

Corte d’Appello (Court of Appeals) has appellate jurisdiction over judgments oftribunals. A section of this court is named Corte d’Assise (Court of Assise) for trial byjury of the gravest penal proceedings. A Corte d’Assise d’Appello (Appeal Court ofAssise) has been set up in 1951 to deal with appeals from judgments of the Corted’Assise.

Corte di Cassazione (Court of Cassation) is the supreme judicial court of final resort.Its jurisdiction is confined to matters of law, taking the facts as found by the lower courts.

Corte Costituzionale (Constitutional Court).—See category Introduction, topic Gov-ernment and Legal System, subhead Constitutional Court.

Tribunali per i Minorenni (Juvenile Courts) have jurisdiction over minors for adop-tion, affiliation, and for crimes committed by minors.

Tribunali Amministrativi (Administrative Courts).—There are a number of admin-istrative courts having jurisdiction over specific matters.

Admission to Judiciary.—Except for Justice of Peace and Honorary Judges of Tri-bunal, admission takes place by national contest among doctors of jurisprudence, andpost is for life.

JURISDICTION:

The rules on jurisdiction in civil matters are set out in Law No. 218 of May 31, 1995and it is outside scope of this digest to render any summary thereof. Following rules are,however, of interest to foreigners:

Voluntary Waiver of Italian Jurisdiction.—When jurisdiction does not exist on basisof residence or domicile in Italy or of applicability of criteria set forth in EC RegulationNo. 44/2001, it nevertheless applies if parties have accepted it by agreement and suchacceptance is proved in writing, or if defendant appears in proceedings without pleadinglack of jurisdiction in his first defence motion.

Italian jurisdiction may be derogated from by agreement in favor of foreign judge orforeign arbitration if derogation is proved in writing and litigation involves disposablerights.

Derogation is without effect if designated judge or arbitrators decline jurisdiction orcannot take cognisance of litigation in any case.

Italian Jurisdiction over Foreigners.—A foreign national may properly be sum-moned before an Italian court if, inter alia: (1) he is a resident of or domiciled in or hasa representative in Italy specifically authorized to appear in court or has accepted Italianjurisdiction (provided such acceptance is evidenced in writing or defendant enters ap-pearance without alleging lack in jurisdiction); (2) criteria, set forth in §§2, 3 and 4 ofTitle II of 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments incivil and commercial matters apply, even if defendant is not domiciled in territory ofcontracting state, when one of matters covered by scope of convention is involved; (3)criteria set forth in EC Regulation No. 44/2001 apply.

LAW REPORTS:

See topic Statutes.

LEGISLATURE:

See category Introduction, topic Government and Legal System.

REPORTS:There are no official reports in Italy with exception of judgments of Constitutional

Court which are published on ‘‘Gazzetta Ufficiale della Repubblica Italiana.’’ See cat-egory Introduction, topic Government and Legal System, subhead Constitutional Court.Reports are voluntary. Usually jurisprudential reports are contained in reviews edited bywell known jurists. Following is a list of most authoritative reports: Il Foro Italiano, LaGiurisprudenza Italiana, Il Massimario delle Decisioni Civili della Corte di Cassazione,La Rivista Penale, La Rivista di Diritto Commerciale, La Rivista di Diritto Internazio-nale.

Laws and statutes are published by Government in ‘‘Gazzetta Ufficiale della Repub-blica’’ and in ‘‘Raccolta delle Leggi e Decreti della Republica d’Italia.’’

STATUTES:All Italian law is embodied in statutes. The fundamental statutes are the five codes

(civil code, code of civil procedure, penal code, code of penal procedure, code of seaand air navigation). In addition, several Unified Texts of law exist which contain acodification of various statutes relating to one specific matter.

All other matters are governed by individual statutes. All statutes are published in theOfficial Gazette of the Republic.

Laws other than those establishing taxation, approving state budget, amnesties orinternational treaties may be repealed as a consequence of a referendum.

CRIMINAL LAWCRIMINAL LAW:

Whereas bulk of criminal law is governed by Penal Code there is huge number ofcrimes and offences provided in many other statutory instruments also not having crimi-nal nature. Criminal Procedure is regulated by Code of Penal Procedure. See categoryIntroduction, topic Government and Legal System, subhead Civil Rights.

DEBTOR AND CREDITORASSIGNMENTS:

Rights, credits, debts and choses in action may be assigned by contract. Certain rights,such as those relative to maintenance or support, are not assignable. Rights as to whichdispute is pending before court cannot be assigned to judges, clerks, process servers,lawyers, and notaries discharging their functions within jurisdiction of that court. (C.C.1261).

Notice to a debtor or his acceptance thereof are necessary for the assignment of rightsto become fully effective and operative in debtor’s respect, but the latter’s consent is notrequired. (C. C. 1264).

Unless assignment is made without consideration, assignor is answerable to assigneefor existence of his title at time when assignment is effected, but normally he has noliability as regards debtor’s solvency.

Assignment of debts or contracts by a debtor or one party to a contract are of no effecton the creditor or the other party unless their consent thereto is previously obtained.

Assignment for Benefit of Creditors.—A debtor may assign the whole or part of hisassets to his creditors, but the assignment is operative only in respect of those creditorswho have agreed thereto and is void unless it is made in writing. The creditors maydispose of the assets assigned to them as they see fit and share in the proceeds of theliquidation thereof in proportion to their respective credits, but the debtor retains the rightto control the management and receive the accounts relative thereto. The creditors maynot levy execution on the debtor’s assets other than those assigned until the liquidationof the latter has been completed. (C. C. 1977-1986).

Assignment of Receivables to Banks, Factoring Companies and other FinancialIntermediaries.—These assignments are regulated by Law No. 52, Feb. 21, 1991 (asam’d by Legislative Decree No. 385, Sept. 1, 1993) when following conditions occur:(a) assignor is entrepreneur; (b) assigned receivables arise from contracts entered into byassignor within course of his business; (c) assignee is bank, factoring company or otherfinancial intermediary, whose by-laws include purchase of receivables.

Assignment of Receivables Towards State and other Public Entities.—When debtoris State or other public entity, assignment of receivables, if permitted by law, must, unlessexpressly accepted by it, be notified to debtor and executed by public deed or privatedeed with signatures authenticated by notary pursuant to art. 69 of Royal Decree No.2440 of Nov. 18, 1923.

Securitization Law.—Law No. 130 of Apr. 30, 1999 amended applies to securitizationtransactions made through assignment for consideration of cash receivables (either ex-isting or future receivables), provided that sums payable by assigned debtors are ex-clusively destined to satisfaction of rights incorporated in securities issued to financepurchase of such receivables and that assignee is company having sole purpose ofperforming one or more securitization transactions (SPV). Receivables related to eachtransaction constitute in all respects autonomous patrimony independent from that ofSPV and from those receivables pertaining to other securitization transactions. Enforce-ment against each portfolio of receivables can only be made by holders of notes issuedto finance purchase of receivables which constitute such portfolio of receivables, withexclusion of any other creditor.

Special provisions have been also provided for in order to limit negative effects ofbankruptcy: no claw back action towards payments made by assigned debtors is per-mitted while general period for setting aside respectively of two and one year has beenreduced for “securitization transactions” entered into pursuant to new law respectivelyto six or three months. SPV must be financial intermediary and comply with relevantlegislation and supervisory regulations, but minimum stock capital requirement will notapply. In addition general provision of law applicable to corporations pursuant to whichnot listed companies other than banks cannot issue notes for aggregate amount exceedingtwice as much their assets does not apply to SPV. Assignment of receivables becomes

ITALY LAW DIGEST DEBTOR AND CREDITOR



ASSIGNMENTS . . . continuedeffective against debtors and third parties upon publication on Official Gazette anddeposit with Register of Enterprises of notice of assignment. New law requires draftingof offering circular even if securities to be issued are offered to professional investorsand, in case of public offer, transaction must be given rating by rating agency.

Notes issued by SPV benefit of provisions of Legislative Decree No. 239 of Apr. 1,1996 as amended and supplemented pursuant to which payment of interest and otherproceeds under notes may be made without withholdings or deductions to certain cat-egories of noteholders and subject to compliance with certain procedures.

Above-mentioned provisions, pursuant to recent amendments to Law No. 130 of Apr.30, 1999 introduced by Law Decree No. 35 of Mar. 14, 2005 converted into Law No.80 of May 14, 2005, apply also to transactions pertaining to assignment of land andmortgage receivables, of receivables toward public entities or guaranteed by them as wellas securities issued under securitization transactions pertaining to receivables havingsame nature, carried out by banks in favor of companies having sole purpose of pur-chasing such receivables and securities, through financing granted or guaranteed also bysame originator banks.

Under new provisions, assignments of receivables toward public entities will becomeeffective upon publication on Official Gazette in derogation of Arts. 69 and 70 of RoyalDecree No. 2440 of Nov. 18, 1923.

Pursuant to joint provisions of Law Decree No. 351 of Sept. 25, 2001 as amendedconverted into law by Law No. 410 of Nov. 23, 2001 and Law Decree No. 63 of Apr.15, 2002 converted into law by Law No. 112 of June 15, 2002, public company has beenincorporated by Republic of Italy which will perform securitization transactions havingas their object proceeds from transfer of State real estate patrimony. In derogation to LawNo. 130, collection of such proceeds may be made by State and other public entities inaddition to banks and financial intermediaries.

Pursuant to art. 84 of Law No. 289 of Dec. 27, 2002 (Budget Law for year 2003),regions and local entities are authorized to incorporate, also through third parties, limitedliability companies for purpose of finalizing securitization transactions having as theirobject proceeds from transfer of their respective real estate patrimony.

ATTACHMENT AND SEQUESTRATION:

There is ‘‘sequestro convenzionale’’ (attachment ex contractu) which corresponds tothe American-English sequestration in contracts; that is, a species of a thing in contro-versy is deposited by two or more persons with a third person, who binds himself torestore it, when the litigation is over, to the party to whom it has been adjudged. (C. C.1798).

Another form is the ‘‘sequestro giudiziario’’ whereby the court authorizes the seizure:(1) of real or personal property, title to which is controversial, and (2) of books, ledgers,documents, samples or any other thing which may be used as evidence of a credit. (C.C. P. 670).

The third form of sequestration (‘‘sequestro conservativo’’) may be authorized by thecourt upon the creditor’s demand whenever the creditor has founded reasons for sus-pecting that the guaranty of his credit may be prejudiced. (C. C. P. 671). Precautionaryfunction of sequestration is fully discharged and opens way to forceful execution whenjudgment on merits, ascertains foundation of claimant’s right.

Sequestration can be granted in context of pending litigation but if application is filedprior to institution litigation proceedings on merits Court’s order granting sequestrationmust set peremptory deadline not exceeding 30 days in order to commence such liti-gation. Both ‘‘sequestro conservativo’’ and ‘‘sequestro guidiziario’’ may be granted bycourt without hearing debtor. No lien or preference in respect of other creditors is createdby attachment.

BANKRUPTCY:

Major reform of existing bankruptcy legislation contained in Royal Decree No. 267of Mar. 16, 1942 has been introduced by Legislative Decree No. 5 of Jan. 9, 2006(“Decree No. 5”). New rules have entered into force on July 16, 2006.

Only traders (persons or concerns ordinarily engaged in business of medium or largedimension) are subject to or can invoke bankruptcy law. He who is not able to dischargehis obligations or pay his debts is in state of insolvency and may be declared bankruptat his own instance or at instance of one or more creditors, or upon request of PublicProsecutor.

Before enactment of above mentioned reform, appointed judge and trustee (receiver)were administrators of bankruptcy while according to new rules, appointed judge isentrusted with supervisory powers. Trustee acts under surveillance of appointed judgedesignated by tribunal and creditors’ committee. He is specifically charged with assess-ment of assets and liabilities of bankrupt. Committee of three to five creditors, whosepowers have been widened, supervises conduct of receiver, authorizes its acts and re-leases opinions provided by law.

Gifts and donations made by bankrupt within two years prior to bankruptcy are nulland void against creditors’ rights. New provisions on claw-back have been introducedby Law Decree No. 35 of Mar. 14, 2005 converted into law by Law No. 80 of May 14,2005 (“Decree No. 35”) which has entered into force on Mar. 17, 2005 and will applyto all bankruptcy procedures declared after entry into force of Decree No. 35. Accordingto such provisions, abnormal transactions and payments made without money or otherordinary means within one year prior to bankruptcy are declared null and void, unlessother party can prove that he was not aware of insolvency of bankrupt. Normal trans-actions and payments made six months prior to bankruptcy are also declared null andvoid, if receiver proves that other parties were aware of insolvency of bankrupt.

Abnormal transactions have been defined as all those transactions where obligationsof bankrupt exceed more than one-fourth his consideration.

Furthermore, certain exemptions from claw-back have been introduced by Decree No.35 including, inter alia, payments of goods and services made during course of ordinaryactivities according to customs; remittances on bank accounts to extent not reducingsubstantially and permanently indebtedness of bankrupt toward bank; purchases ofhouses at fair value destined to be inhabited by purchaser or by his relatives or relatives-

in-law within third degree and payments of performances rendered by bankrupt’s em-ployees or other collaborators.

Claims are submitted to appointed judges and, if accepted, included in an official list.When list is completed and assets are sold, claims are settled in following order: (1)preferential claims are paid in full (claims of mortgages, pledges, tax collectors’ claims,social insurance agencies’ claims, labor claims); (2) all ordinary claims are settledpro-rata with remaining funds.

During bankruptcy procedure, accrual of interest on receivables is suspended andexecution proceedings to be initiated by individual creditors are prohibited.

Bankrupt, one or more creditor or third party may file application for settlement(concordat). If proposed settlement is not approved by creditors or if, after approval, itis defaulted by bankrupt, then regular winding up follows (alienations, collections,distributions, etc.).

Preliminary Concordat.—Entrepreneur who is in state of economic crisis may pro-pose to his creditors preliminary concordat on basis of plan providing for: (a) restruc-turing of his debts and payment of creditors by several means including, inter alia,assignments of assets or attribution of shares or bonds convertible in shares or otherfinancial or debt instruments; (b) assignment of activities of enterprises interested byproposal of concordat to person who assumes obligations under concordat; (c) divisionof creditors into different classes on basis of their juridical position and their economicalinterests; (d) different treatments of creditors belonging to different classes.

Tribunal, by decree not subject to appeal, decides whether application may be ac-cepted, and if it is, it orders meeting of creditors to be held before judge within 30 daysand appoints trustee to take care of administration of assets. Concordat must be approvedby creditors representing majority of credits admitted to vote and, if creditors are dividedinto classes, by majority of such classes. If tribunal ratifies concordat, decision bindsevery creditor. According to new provisions introduced by Decree No. 35, moreover,debtor may file, together with application for concordat, agreement for restructuring ofhis debts entered into with creditors representing at least 60% of all credits and ac-companied by report on feasability of same agreement prepared by expert. Creditors mayoppose such agreement and tribunal will decide on such oppositions and on approval ofagreement.

Controlled Administration.—Entrepreneur, individual or company, in temporary fi-nancial difficulties may, in order to safeguard interests of his creditors, apply to tribunalfor control of his business operations and for administration of his assets for period notto exceed two years. If, on or before expiration of two years, debtor produces evidenceto effect that he is in position to fulfil his obligations to creditors, then proceedings arestopped. If, on other hand, controlled administration proves fruitless, then declaration ofbankruptcy is issued by tribunal. Such procedure has been repealed by Decree No. 5.

Forceful Administrative Liquidation.—Insurance companies, banks, certain compa-nies controlled by State, consortiums and other special legal entities may not be subjectto normal bankruptcy proceedings and, in case of insolvency, they are liquidated bycommissioner appointed by court.

Extraordinary Administration.—Legislative Decree No. 270 of July 8, 1999 asamended and supplemented (“Legislative Decree No. 270”) has enacted new legislationon extraordinary administration of large enterprises in state of insolvency replacingprevious Law Decree No. 26 of Jan. 30, 1979 (better known as “Legge Prodi”) with aimof overcoming problems created by previous legislation, some of which were object ofinfringement procedure against Italy started by European Commission.

New procedure is divided into following main stages:(i) Declaration of State of Insolvency.—State of insolvency is declared by competent

Tribunal, upon filing of petition, by debtor himself, or by one or more creditors, or bypublic prosecutor or ex-officio, subject to existence of following requirements: (a) en-terprise, which should be engaged in business operations, not being public entity; (b)enterprise having more than 200 employees; (c) debt of enterprise being higher than twothirds of its assets and of its revenues; (d) enterprise being in state of insolvency. Withsame judgment Tribunal appoints, inter alia, one or three judicial commissioner(s), incompliance with indication of Ministry of Economic Development (formerly, Ministry ofIndustry). During this first stage enterprise is managed by entrepreneur or by judicialcommissioner(s). Within 30 days from declaration of insolvency, judicial commission-er(s) will have to file report on real chances of rebalancing business.

(ii) Opening of Extraordinary Administration Procedure.—If Judge verifies, on basisof report drafted by judicial commissioner(s), that there are real chances of rebalancingbusiness, he declares extraordinary procedure open. During this stage enterprise is man-aged by commissioners appointed by Ministry of Industry.

(iii) Assessment of Liabilities.—During extraordinary administration liabilities of en-terprise are assessed. Existing contracts may be determined by judicial commissioner(s)and enforcement actions by creditors are suspended.

(iv) Definition and Carrying Out of Programme for Transfer of Business or Recoveryof Enterprise.—Administration procedure may be carried out either by way of pro-gramme for transfer of business, which should be completed, in whole or in part, withinone year; or by means of restructuring programme aimed at recovering enterprise frominsolvency state, which should be completed within two years.

(v) Distribution of Revenues Deriving Under Programme.—Revenues deriving fromtransfer of business or from operations of enterprise are distributed among creditors.

(vi) Termination of Procedure.—Procedure may terminate either with completion ofprogrammes (of transfer of business or of recovering of enterprise), with declaration ofbankruptcy or with composition with creditors.

Setting aside of transactions can take place to extent that programme for transfer ofbusiness is approved or procedure is converted into bankruptcy.

Industrial Recovery of Large Enterprises in State of Insolvency.—Specific pro-visions have been introduced by Law Decree No. 347 of Dec. 23, 2003 converted intoLaw No. 39 of Feb. 18, 2004, as am’d and supplemented by Law Decree No. 119 of May3, 2004, and by Law Decree No. 281 of Nov. 29, 2004, with respect to large enterprisesin state of insolvency which want to accede to programme of recovery provided byLegislative Decree No. 270 and have following requirements: (a) not less than 500

DEBTOR AND CREDITOR MARTINDALE-HUBBELL LAW DIGEST - 2007



BANKRUPTCY . . . continuedemployees during prior year at least; and (b) debt being equal or higher than €300million.

(i) Admission to Extraordinary Administration Procedure.—Enterprise having aboverequirements may request Ministry of Economic Development (formerly Ministry ofProductive Activities) to be admitted to extraordinary administration procedure througheconomic and financial recovery programme. Upon such request and after evaluation ofexistence of necessary requirements, Ministry of Economic Development admits byDecree requesting enterprise to extraordinary administration procedure and appointsextraordinary commissioner.

(ii) Declaration of State of Insolvency.—After having received communication ofMinisterial Decree, competent Tribunal declares state of insolvency and assumes con-sequent provisions. If Tribunal ascertains that there is no state of insolvency, MinisterialDecree becomes ineffective.

(iii) Concordat.—During management of recovery programme, commissioner maydecide to pay creditors through concordat, specifying in detail conditions and any guar-antees.

(iv) Claw-Back Provisions.—Claw back of transactions can take place even in case ofauthorization to execution of recovery programme to extent that such claw back is ofbenefit for creditors.

Penal Sanctions.—The debtor who has ceased making his payments and finds himselfin any of the following conditions is declared a ‘‘simple bankrupt’’ and may be punishedby from six months to two years imprisonment: (a) If his personal expenses or those ofhis family exceeded his income according to his financial conditions; (b) if he has spenta large part of his income in gambling or manifestly imprudent operations; (c) if, for thepurpose of delaying bankruptcy, he has used other ruinous means; (d) if he has causedfurther prejudice to his financial condition by abstaining from applying for a bankruptcydeclaration or by any other grave fault; (e) if he has failed to discharge the obligationsagreed to in a previous concordat; (f) if during the three years preceding the bankruptcydeclaration he has not kept the books and papers prescribed by the law or has kept thesame in an irregular or incomplete manner and has failed to appear before the referee,or trustee or committee of creditors. An entrepreneur who continues to resort to creditdissimulating his insolvency may be punished with imprisonment up to two years.

A bankrupt is guilty of ‘‘fraudulent bankruptcy’’ if he has made false entries in hisbooks, destroyed or hidden assets, set forth in his books or declared himself debtor ofsums not due. Those guilty of fraudulent bankruptcy may be punished by imprisonmentfrom three to ten years. In case of bankruptcy of company, directors and statutoryauditors are personally liable under simple or fraudulent bankruptcy penal rules.

EXECUTIONS:Titles for execution are (C. C. P. 474): (a) Final decisions and other special orders

issued by courts; (b) private deeds authenticated by notary for payment of sums ofmoney, promissory notes and other payment orders; (c) documents drawn by notarypublic. In order to execute above titles it is necessary to obtain a copy of them with aspecial certification of enforceability, issued by competent court. (C. C. P. 475).

Execution can affect both movable and immovable property of debtor, on basis of aspecial procedure, which is concluded by public sale of said property (C. C. P. 503) andpayment of creditor (C. C. P. 510).

EXEMPTIONS:The following property is exempt from levy: Beds, wearing-apparel, kitchen utensils,

nuptial rings, household movables, dining tables and chairs, wardrobes, cases, exceptwhen of great artistic value, refrigerators, heating stoves, gas or electric stoves, washingmachines, letters, registers, family papers, books, tools, machines and other trade in-struments, fuel and food needed by debtor’s family for one month. Salaries can be leviedonly to extent of one-fifth thereof except in special cases. (C. C. P. 514-515-545).

FRAUDULENT SALES AND CONVEYANCES:Creditors may void assignments made by debtors in order to defraud them. (C. C.

2901).

GARNISHMENT:A third party is summoned to appear before Executing Judge and either personally or

by attorney must state what goods or money is in his possession or he owes to defendant.If he refuses to appear or to make any declaration or if objections arise about latter,Executing Judge, on party’s motion, instructs proceedings pursuant to applicable pro-visions of Code of Civil Procedure. In meanwhile garnishee is bound to keep money orgoods in his possession as judicial trustee. When third party owes money which may beexacted immediately or within 90 days, money is, by Executing Judge, assigned tocreditors. Otherwise goods or credits are sold in interest of creditors by public judicialauction. (C. C. P. 543-554).

HOMESTEADS:Concept of homestead does not exist in Italian law. Only certain items of personal

property are exempt from execution or forced sale.

INSOLVENCY:See topic Bankruptcy.

JUDGMENT NOTES:See category Business Regulation and Commerce, topic Bills and Notes.

LIENS:The debtor’s property is the common security of his creditors, who therefore have an

equal right on the same, excepting the case of legitimate preferred or privileged claims.Preference is established by privileges (liens), chattel mortgages and mortgages. (C. C.2740-2741).

Privileges on movables are: (1) General privilege covering the entire property of thedebtor as security for judicial expenses, undertaker’s expenses, sickness expenses, wages,professional fees, food, state’s credits for taxes etc.; (2) special privilege, covering onlydeterminate movables, as security for custom duties on merchandise, taxes on rent, lease,pledges, hotel bills, carrier’s fares etc. (C. C. 2751-2755); (3) special privilege which mayonly be taken by banks as security for medium or long term loans and may only covercertain present and future movables (such as existing or future plants and works, rawmaterials, stock, assets purchased with proceeds of medium or long term loan in respectof which special privilege is intended to be granted, existing or future receivables arisingfrom sales of all assets listed in art. 46 of Legislative Decree No. 385 of Sept. 1, 1993).

Privileges on immovables are those arising from judicial expenses (art. 2770); fromland tax and other taxes due to the State, to the Provinces, to the Municipalities (art.2771); from payments due to the State for licences or contributions (art. 2774-2775).

PLEDGES:See category Mortgages, topic Chattel Mortgages.

DISPUTE RESOLUTIONALTERNATIVE DISPUTE RESOLUTION:

Alternative dispute resolution is limited to conciliation and arbitration (see topicArbitration).

ARBITRATION:Arbitration proceedings may be instituted in all controversies except in certain special

matters such as those concerning personal status, domestic relations, certain labourdisputes which must be brought before ordinary courts and, in general, those concerningrights which parties are not entitled to dispose of. (C. C. P. 806).

Arbitrators to a controversy must be odd in number and unless otherwise provided byparties, their procedure and awards made in Italy are governed by Italian law.

Proceedings for voidance of arbitration awards may be instituted before civil courtson certain specific grounds, e.g., when arbitrators have exceeded sphere of jurisdictionconferred upon them by parties.

Code of Civil Procedure also regulates international arbitration and recognition andenforcement of foreign arbitral awards. Above mentioned provisions are without preju-dice to applicability of international conventions, infra.

Awards may also be contractual in nature if so provided by parties in arbitrationagreement. In such case, award is binding as a contract between parties but is notenforceable unless a judgment has been entered upon award.

Chambers of Conciliation have recently been set up under care of Council of the BarAssociation and under care of some Chambers of Commerce.

Pursuant to Convention on the Recognition and Enforcement of Foreign ArbitralAwards signed in New York on June 10, 1958, to which Italy is a party, awards renderedabroad are recognised in Italy regardless of parties’ nationality or domicile. Since Italyratified said Convention without adopting possible limitations contemplated by Art. 1.3thereof, awards rendered abroad are recognized in Italy even if rendered in country whichis not party to Convention and if subject matter of dispute is not of commercial nature.

There are some further conventions on arbitration to which Italy is party, most im-portant being: European Convention on International Commercial Arbitration signed inGeneva on Apr. 21, 1961, Convention on settlement of investment disputes betweenstates and nationals of other states signed in Washington on Mar. 18, 1965, Conventionof Geneva dated Sept. 24, 1923, Convention of Geneva of Sept. 26, 1927. See alsoAgreement of Sept. 26, 1961, supplementing Italian-U.S. Treaty of Friendship, Com-merce and Navigation of Feb. 2, 1948.

DOCUMENTS AND RECORDSACKNOWLEDGMENTS:

Documents may be drafted, inter alia, on paper, through electronic and telecommu-nication instruments and their filing and transmission may be made by way of electronicand telecommunication systems, using specific technical requirements (based on cryp-tography with two asymmetrical keys by which documents could be coded and encoded)to assure genuineness and time validation. (D.P.R. No. 445 of Dec. 28, 2000 as am’d).This legislation on electronic documents has been partially implemented by D.P.C.M. ofJan. 13, 2004 and amended by Legislative Decree No. 82 of Mar. 7, 2005, subsequentlyamended by Legislative Decree No. 159 of Apr. 4, 2006 and Law Decree No. 223 of July4, 2006, which introduces code for use and management of electronic documents withinPublic Administration and access to public documents through use of information tech-nologies. (See category Civil Actions and Procedure.)

Italian law sets forth that certain acts or contracts shall be made or proved throughprivate writings, authenticated private writings and public acts. (C. C. arts. 2699 andsubsequent).

Private writings constitute full proof, unless judicially declared false, of origin ofdeclarations contained therein from person who executed such writing.

Electronic documents, duly executed with electronic signatures, have same validity asprivate writings. (Law No. 59 of Mar. 15, 1997, D.P.R. No. 445 of Dec. 28, 2000 andLegislative Decree No. 82 of Mar. 7, 2005).

Signatures on private writings can be authenticated by notary public (see topic NotariesPublic) or by other authorized public official. Authentication consists of certification bypublic official that signature was written in his presence. Public official must previouslyverify identity of person who signs it.

Public act is instrument drawn with required formalities by notary public (see topicNotaries Public) or by another public official authorized to confer to such instrumentvalidity towards third parties and that constitutes full evidence, unless judicially declaredfalse, to have been drawn by public official who drew it, as well as declarations of partiesand of other facts which public official certifies to have taken place in his presence.

ITALY LAW DIGEST DOCUMENTS AND RECORDS



ACKNOWLEDGMENTS . . . continuedPublic acts and private writings authenticated abroad must have in order to be valid

in Italy signature of notary public (i) legalized by competent authority abroad or, whenapplicable, certified by apposition of apostille pursuant to The Hague Convention of Oct.5, 1961, to which Italy, as well as many other countries including U.S., is party unlesslegalization or certification is not required pursuant to specific conventions entered intobetween Italy and relevant country; and (ii) deposited, save in certain circumstances, withItalian notary public.

AFFIDAVITS:Creation, release, keeping, management and transmission of administrative documents,

i.e. documents representing, even in electronic form, content of administrative acts orused for purpose of administrative activity, as well as filing of documents and acts withpublic administration are regulated by D.P.R. No. 445 of Dec. 28, 2000, as amended andsupplemented by Legislative Decree No. 82 of Mar. 7, 2005 (as subsequently am’d)which, inter alia, enables Italian and EU citizens and, in certain circumstances, non-EUcitizens, to file affidavits of relevant person in lieu of certificates.

Affidavits rendered by relevant person are valid to certify his (a) date and place ofbirth, (b) residence, (c) nationality, (d) entitlement to civil and political rights, (e) maritalstatus, (f) family status, (g) existence in life, (h) birth of son or daughter, death ofhusband or wife or relatives, (i) registration with registers kept by public administrations,(j) admission to professional registers, (k) education, (l) professional qualification, (m)income status, (n) welfare position, (o) tax code and V.A.T. numbers, (p) unemployedstatus, (q) retirement status, (r) student status, (s) legal status, (t) registration withassociations, (u) accomplishment with military service, (v) absence of any convictions,(w) civil status of dependent person, (x) all data contained in registers of civil status, (y)absence of bankruptcy, winding up, or of petition for composition with creditors. (art. 46of D.P.R. No. 445 of Dec. 28, 2000).

Facts, personal statuses or qualities within knowledge of interested party may be statedby means of declaration made and signed before officer entrusted to receive relevantdocumentation, notary, court’s clerk, town clerk or any other officer so empowered byMayor. Any such individual receiving declaration is to authenticate relevant signature.

Certificates of origin, of CE compliance and those inherent to health and veterinarymatters cannot be replaced by any other document unless otherwise provided by relevantstatutes. (art. 49 of D.P.R. No. 445 of Dec. 28, 2000).

NOTARIES PUBLIC:In Italy notaries have the qualification and standing of public officials whose orga-

nization and functions are similar to those of the French system. A notary must be aUniversity graduate of law in order to be admitted to pass a special competitive ex-amination which is a prerequisite of his subsequent appointment to his office by theappropriate court. The number of notaries is limited and each can practice only withina determined district (Collegio notarile). To be admitted to practice each notary is alsorequired to give a bond. Each notary must keep a record of all instruments drawn beforeand acknowledged by him and is specifically required to keep the originals of the deedsdrawn by him. On his death, or retirement, all documents on file in his office are deliveredto Notarial Archive maintained under State supervision. He issues certified copies ofdocuments on file in his office. He is empowered to take affidavits under oath but onlyjointly from minimum of four deponents and as to matters of common knowledge. Art.24 of Legislative Decree No. 82 of Mar. 7, 2005, provides for validity of documentsdigitally signed subject to specific conditions being met. D.P.R. No. 445 of Dec. 28, 2000also entitles notaries to authenticate any such digital signature. See also topic Acknowl-edgments.

RECORDS:In Italy there are various public registers created by specific laws in order either to

(i) provide information on facts, acts or contracts to public, or (ii) make effective towardsthird parties certain facts, acts or contracts, or (iii) create rights of priority or presump-tions.

Among these registers there are Civil Status Register, Register of Enterprises, Registerof Associations and Foundations, Register of Immovables, Register of Registered Mov-ables, Italian Office for Patents and Trademarks, Register of Motion Picture and otherregisters specific for certain categories of companies (such as banks, financial interme-diaries and insurance companies).

SEALS:In instruments, seals of witnesses are not required, except in notarial deeds of gift (atti

di donazione).

EMPLOYMENTLABOR RELATIONS:

This matter is covered by Arts. 36 to 40 of Constitution (see category Introduction,topic Government and Legal System, subhead Economic Rights), by Book Five of CivilCode, by special laws concerning employment agencies, social insurance, labor trials andassistance, by collective (i.e., trade union) bargains and by usage; by Law No. 300 ofMay 20, 1970 as amended new provisions have been enacted with respect to hiring ofworkers and protection of their freedom and honour. Said provisions also pertain to rightsof labor unions and to unions’ activities within places of employment.

Legislative Decree No. 276 of Feb. 14, 2003 (so-called “Biagi Law” or “RiformaBiagi”) has introduced wide range reform of Italian labor market aimed at increasingflexibility and job opportunities. Biagi Law has introduced new regulation of interme-diation in labor relationships, through which leasing of workforce is allowed, being suchservice provided by special purpose companies. Such companies hire workforce placingit at disposal of requesting entrepreneur. For certain types of working activities contractsfor supply of workforce without maximum time limits are allowed. Biagi Law has alsointroduced wide range of new labor contracts (i.e., job sharing, intermittent job, job on

call), has deeply reformed part-time and apprenticeship contracts and introduced newkind of contract, so called job on project (“lavoro a progetto”) whose nature falls betweensubordinate and autonomous labor contracts and replaces (in private sector) existingcontract of same kind (“collaborazioni coordinate e continuative”). It should be notedhowever that job on project is subject to limits which are stricter compared to thoseapplicable to replaced kind of labor contract (i.e., “collaborazioni coordinate e continu-ative”). Finally, Biagi Law provides for certification procedure of labor contracts to bemade before specific public commissions. Such certification is aimed at pinning downand clearing scopes and nature of most part of labor contracts introduced by Biagi Lawand at reducing possible relevant controversies and litigations. Biagi Law adds to reformof fixed term contracts made by Legislative Decree No. 368 of Sept. 6, 2001, throughwhich new provisions were introduced allowing much greater freedom and flexibility inuse of those kinds of contracts. It should be noted however that above reforming trend(started with Law No. 196 of June 24, 1997, most part of which has been replaced byBiagi Law), on one hand, applies to minor part of Italian labor market and, on other hand,has not yet achieved to reform Art. 18 of Law No. 300 of May 20, 1970 on dismissalin standard tenure employment contracts (by far most common kind of labor contractsin Italy) in companies employing more than 15 employees. Said Art. 18 allows (togetherwith other provisions of Italian law; see “Dismissal” section below) extreme level ofprotection to employees in case of dismissal, making such occurrence (together withcritical inefficiencies of Italian judicial system to be involved in case of litigation) majoreconomic and managing challenge for relevant employer.

Categories of Employees.—Employees are classified into executives, intermediates,clerks and workmen. (C.C. 2095).

Hours of Work.—Significant efforts have been recently made in order to allow betterflexibility of amount and distribution of hours of work, mainly through constant changesto existing legislation on subject (recently further regulated by Legislative Decree No.66 of Apr. 8, 2003) as well as through introduction of new provisions on part-time(Legislative Decree No. 61 of Feb. 25, 2000 as am’d and supplemented).

Hours of work cannot exceed, in general, 40 hours per week. (art. 3 of LegislativeDecree No. 66 of Apr. 8, 2003). All employees are entitled to one day of holiday perweek, preferably on Sundays (C.C. 2109), and to period of vacation every year with rightof being paid (art. 36 of Constitution). Collective bargaining agreements have importantand increasing role in determining amount and distribution of hours of work.

Wages.—May be determined by time or by job. They cannot be lower than minimumprovided by collective bargains.

Italian case law provides always for application, on basis of equity, of minimum wageset forth in relevant collective bargains.

Labor Unions.—Recognized under Italian Constitution. (art. 39). They may entercollective bargains which, if Labor Union has been registered with competent localauthority and has legal personality, are compulsory for all employers and employees ofcategory, regardless of their membership in respective associations or unions. Actuallylaw implementing registration provisions for Labor Unions has never been adopted, andcollective bargains have nature of ordinary contracts.

Nevertheless substantial role is unanimously recognized to collective bargains, whoseminimum terms and conditions cannot be ignored in any employment relationship.

Legislative Decree No. 74 of Apr. 2, 2002 has recently implemented EC Directive No.45 of Sept. 22, 1994 on European Works Councils and on community-scale companies,or groups, undertakings for informing and consulting employees.

Dismissal.—Subject to notice which varies according to category of employees andduration of employment. (C.C. 2118). However, enterprises, except for few cases, cannotdismiss any of them without ‘‘giusta causa’’ or ‘‘giustificato motivo’’, i.e., specific reasonof complaint. (C.C. 2119; Law No. 300 of May 20, 1970 and Law No. 604 of July 15,1966 as am’d). Reason of complaint must be notified to employee in writing and fivedays term must be given for employee’s answer. Only after receipt of such answer orelapsing of five days term can dismissal be validly notified to employee. If existence of‘‘giusta causa’’ or ‘‘giustificato motivo’’ is denied by court, employer shall be (i) con-demned to pay compensation of damages equal to wages and social contributions accruedfrom date of wrongful dismissal up to date of court’s ruling and (ii) to reinstate dismissedemployee (unless he/she accepts indemnity in lieu). However, for enterprises with morethan 15 employees, reinstatement of employee is mandatory, unless employee requestspayment of indemnity. Special provisions regulate collective dismissals. (Law No. 223of July 23, 1991).

Severance Bonus.—All employees are entitled to severance bonus in proportion tolength of employment, payable upon termination of same.

Trial Period.—Valid only if agreed in writing or stated in writing in hiring letter. Seealso European Union Law Digest, category Employment, topic Labor Law.

Protection of Motherhood and Fatherhood.—Existing legislation has been reorga-nized in consolidated text of law approved by Legislative Decree No. 151 of Mar. 26,2001.

Public Sector.—Labor relations and related matters like, for instance, payment ofseverance allowances or pensions, are in general differently regulated in public as dis-tinguished from private sector. However, major reform of public sector was started byLegislative Decree No. 29 of Feb. 3, 1993, subsequently amended and followed byseveral decrees for its implementation. Reform was mainly aimed at abolishing privilegesaccorded to public employees, and to establish uniform rules for public and privateemployment even though certain differences will necessarily be maintained, in view ofofficial role played by public employees. New collective bargaining system for publicsector has also been established and has central role in determining regulation of publicemployment contracts. As completion of above-mentioned process, jurisdiction on publiclabor matter has been transferred (by Legislative Decree No. 80 of Mar. 31, 1998) fromspecial administrative courts to ordinary civil labor courts.

Strike.—It is right recognized by Constitution and ‘‘can be exercised within the limitsset forth in the laws which regulate it’’. (Art. 40 of Constitution). For time being thereis no law governing this matter save for Law No. 146 of July 12, 1990 which hasintroduced some control and regulations for strikes affecting public services deemed to

DOCUMENTS AND RECORDS MARTINDALE-HUBBELL LAW DIGEST - 2007



LABOR RELATIONS . . . continuedbe essential to community and which has been recently amended by Law No. 83 of Apr.11, 2000.

Such law instituted Authority (“Commissione di Garanzia”) which is authorized to fixminimum standards of activity for workers in case of strike and, generally, to supervisecompliance with applicable legislation.

Pensions.—Public compulsory pension system is funded through mandatory contri-butions paid by employers and in part, but also through employers, by employees. Uponsatisfaction of certain requirements, pensions are payable for old age retirement; or forretirement after certain number of years of employment; or for disability. Social allow-ance (‘‘pensione sociale’’) is also payable, upon satisfaction of certain requirements, asextreme remedy, regardless of payment of any kind of contributions by or on behalf ofperson to whom it is paid. Legislative Decree No. 124 of Apr. 21, 1993 introducedsupplemental pension funds which may be established in addition to public compulsorypension system. Major overall reform was approved by Parliament on Aug. 8, 1995 (LawNo. 335) by which not only these supplemental pension funds have been implementedbut age for retirement has been raised as well. Such reform also introduced new methodsof pension computation together with gradual abolition of early retirement. Furtherreform of old age pension system (Law No. 243 of Aug. 23, 2004) has been introducedand will enter into force in 2008. Such new reform, inter alia, will tighten significantlyrequirements to qualify for old age pension benefits (i.e., by increasing contributionseniority needed to qualify for it and raising standard minimum legal age to retire). Fortime being, incentives are provided for those employees who decide to postpone theirretirement and continue to work.

Industrial safety, as set forth by art. 2087 of C.C., has been fully implemented byLegislative Decree No. 626 of Sept. 19, 1994 as subsequently amended (“LegislativeDecree No. 626”) which introduced complex and detailed regulation on industrial healthand safety matters based mostly on prevention and information requirements rather thanon restoration of damages. In more detail, Legislative Decree No. 626 essentially pro-vides for (i) appointment of qualified professionals to be allocated within industrialstructure (such as doctor and officer in charge of risks prevention), (ii) employers’ dutyof keeping workers informed on risks related to their work through drafting of detailedschedule on such risks, (iii) employers’ duty of assuring adequate levels of work throughappropriate measures and (iv) criminal penalties for employer in event of violation ofsuch duties.

ENVIRONMENTENVIRONMENTAL REGULATION:

In Italian environmental legislation general definition of environment is currentlymissing. Hence, regulation of whole matter can be inferred from individual pieces oflegislation which have been enacted to regulate specific fields. It must be pointed out thatMinistry of Environment (currently Ministry of Environment and Social Policy) existssince 1986, having been established by Law No. 349 of July 8, 1986 for ‘‘the promotion,conservation and recovery of environmental conditions consistent with the basic interestsof the public and with the quality of life, for the recovery and the improvement of thenational heritage and the preservation of the national resources from pollution.’’ Ministryof Environment shall, in agreement with Regions, draw up and realize plans to reducepollution. Law No. 93 of Mar. 23, 2001, Law No. 179 of July 31, 2002 and LegislativeDecree No. 152 of Apr. 3, 2006 have introduced amendments to existing legislation onenvironment.

Legislative Decree No. 152 of Apr. 3, 2006 introduced major and overall reform ofenvironmental matter, reorganizing, coordinating and supplementing preexisting legis-lation, also through adoption of eight directives of European Community which were notyet adopted. It represents first Italian code on environment regulating following mainenvironmental sectors: water pollution; protection of land from desertification; manage-ment of water resources; management of waste materials and decontamination of pollutedlands; air pollution and reduction of injurious emissions in atmosphere; procedure forrecovery of environmental damages based on principle that whoever causes pollutionmust repay consequential damages.

Decree also provides for procedure for evaluation of environmental effects of specificplans and programs approved by Government or local authorities.

Further, Legislative Decree No. 195 of Aug. 19, 2005 has recently implemented ECDirective 2003/4/CE, providing general principles on environmental information, grant-ing right of all to gain access to environmental information kept by public authorities,subject to terms and conditions provided therein and guaranteeing that environmentalinformation be publicly available also through use of communication and informationtechnologies in formats that can be easily approached.

Protection of natural environment is granted, inter alia, by Legislative Decree No.42 of Jan. 22, 2004 as amended and by Law No. 394 of Dec. 6, 1991 as amended whichsets forth basic rules to realize ‘‘protected areas’’, register of which has been laid downby Ministerial Decree of May 10, 1991. Several parks and natural reserves exist all overItalian territory. As to protection of flora and fauna several international conventions andEC Directives apply.

Interministerial Decree of May 3, 2001 has set up special register in which commercialenterprises have to be registered, including circuses and zoos, and in general whoevertrades or uses for profit specimens of fauna and flora, in order to avoid their illegal,illegitimate or uncontrolled exploitation. Same objectives are pursued by specific leg-islation which includes, as amended, sanitary laws of 1934, legislation on water andelectric power plants of 1933 as amended, law on hunting of 1939 as amended and lawon fishing (other than in sea) of 1931 as amended, art. 6 whereof prohibits fishing byexplosives and electricity and throwing into water of any substance able to benumb orkill fishes or other water animals, and law on sea-fishing of 1965 as amended whichcontains similar provisions. Specific laws regulate fishing of protected species in differentareas of Mediterranean Sea. Legislative Decree No. 372 of Aug. 4, 1999 as repealed byLegislative Decree No. 59 of Feb. 18, 2005 has implemented EC Directive 96/61/CE oncombined prevention and reduction of pollution deriving from specific industrial activi-

ties, while Legislative Decree No. 334 of Aug. 17, 1999 has implemented EC Directive96/82/CE on control over danger of serious accidents connected with dangerous sub-stances. Against spread of animal virus which recently affected Europe, LegislativeDecree No. 146 of Mar. 26, 2001 has implemented EC Directive 98/58/CE on protectionof animals health inside farms, establishing specific provisions to protect breeding ofanimals against danger of contagious diseases such as sponging encephalopathy.

Waste Materials and Dangerous Substances.—Legislative Decree No. 22 of Feb. 5,1997 which implemented EEC Directives 91/156/CEE, 91/689/CEE and 94/62/CE andintroduced specific provisions on disposal and reconversion of waste materials anddangerous waste materials and on packages and disposal of waste packages has beensuperseded by Legislative Decree No. 152 of Apr. 3, 2006. It reorganizes and coordinatesprovisions contained in preexisting legislation, confirms parameters currently in force toqualify site as polluted and procedure to decontaminate polluted site, redetermines orderof precedence in management of waste materials in compliance with EC legislation,establishes Authority for waters and waste materials and recognizes role of Provinces inmanagement of waste materials.

In addition, Legislative Decree No. 36 of Jan. 13, 2003 has implemented EC Directive99/31/CE on dumping. Law No. 257 of Mar. 27, 1992 (as am’d and supplemented)prohibits import, export, trade and in general production of asbestos, save in certaincircumstances. Commission has been established having task to supervise environmentand consider health risks connected with exploitation of asbestos.

Legislative Decree No. 52 of Feb. 3, 1997 (as am’d and supplemented) has imple-mented EEC Directive 92/32/CEE on classification, packaging and labeling of dangeroussubstances.

Water Pollution is governed by Legislative Decree No. 152 of Apr. 3, 2006 (“Leg-islative Decree No. 152”) which reorganized preexisting legislation such as, inter alia,Law No. 319 of May 10, 1976, as amended and supplemented (better known as “LeggeMerli”) as well as Legislative Decree Nos. 130, 131 and 132 of Jan. 27, 1992 and No.152 of May 11, 1999 which as consequence have been repealed.

Legislative Decree No. 152, implementing EC Directive 2000/60/CE, purports to setout overall discipline for safeguard of surface, marine and underground waters aimingat following goals: (i) to prevent and reduce water pollution as well as to restore pollutedwaters; (ii) to achieve enhancement of status of waters as well as appropriate safeguardsfor those destined to special uses; (iii) to pursue sustainable and long lasting uses of watersources, priority being given to potable waters; (iv) to maintain natural self-cleansingcapacity of waters as well as their capacity to sustain ample and diversified animal andvegetal forms of life.

Specific targets of environmental quality are to be pinpointed on local basis in ac-cordance with quality standards set out in attachment to Legislative Decree No. 152.Discharge, as defined in Legislative Decree No. 152, of waters on ground, on under-ground and underground waters, on surface waters etc. must comply with such standardsand is in principle prohibited subject to prior authorization, specific exceptions andcontrols aimed at ensuring that such discharges do not exceed maximum pollutionstandards laid down in detail in relevant attachment to Legislative Decree No. 152.Distinction is drawn between urban and industrial sewage whose discharge is subject tosome prior authorizations and is to comply with specific pollution thresholds.

In compliance with EC Directive 2000/60/CE, establishment of two specific authoritiesfor waters (authority for basin zones and authority for waters and waste materials) isprovided. Legislative Decree No. 152 divided Italy into seven basin zones and confirmsprinciple that waters are common heritage.

Failure to comply with above requirements makes responsible party liable to fine.Discharges of industrial waters without, or exceeding ambit of, proper authorization,those which do not conform with current laws and those of industrial waters containingthose dangerous substances listed in attachments to Legislative Decree No. 152 withoutdue care, are punished with criminal sanctions.

Further, Legislative Decree No. 31 of Feb. 2, 2001 (as am’d by Legislative Decree No.27 of Feb. 2, 2002) implemented EC Directive 98/83/CE on purity of water for humanconsumption, fixing parameters which have to be met to define water “potable”.

In addition, mention should be made of large number of international Conventions towhich Italy is party and which are aimed at establishing international cooperation toprevent water pollution. Among others, Convention for the protection of the Mediter-ranean Sea signed in Barcelona on Feb. 16, 1976 and ratified by Law Jan. 25, 1979 No.30, Convention for the prevention of sea pollution due to discharge of waste signed inLondon, Mexico City, Moscow and Washington on 29th Dec., 1972 and ratified by LawNo. 305 of May 2, 1983 and Brussels Convention on liability for damages arising frompollution caused by hydrocarbons signed on Nov. 29, 1969 and ratified by Law Apr. 6,1977 No. 185. See also category Transportation, topic Shipping.

Air pollution is governed by Legislative Decree No. 152 of Apr. 3, 2006 whichsuperseded Law No. 615 of July 13, 1966, known as anti-smog law. Such new legislationcoordinates all measures provided in preexisting laws to prevent air pollution. It promotesrecourse to most efficient technologies available to prevent and restrain pollution arisingfrom heating systems, industrial plants and any other activity producing dangerousemission, requests wider efforts to individuate and exploit renewable sources in com-pliance with targets of Kyoto Protocol especially providing incentives to South of Italyto use renewable energy and determines limits for dangerous emissions. All plantsproducing emissions able to cause air pollution must be authorized to operate by com-petent authority. Authorization remains valid for fifteen years.

As to heating systems, law sets forth certain technical and building prerequisites forthose having power exceeding 30,000 Kcal/h. As to industrial plants, it is provided thatthey must have devices able to reduce dangerous emissions.

As to protection of ozone layer, mention should be made of Law No. 549 of Dec. 28,1993 as amended by Law No. 179 of June 16, 1997 and EC Reg. No. 3093 of Dec. 15,1994.

Air pollution is also regulated by Legislative Decree No. 351 of Aug. 4, 1999 asamended which implemented EC Directive 96/62/CE on measurement and managementof environmental air quality. As to emission from motor vehicles they may not exceedcertain limits set out in applicable rules. In particular, Ministerial Decree No. 60 of Apr.

ITALY LAW DIGEST ENVIRONMENT



ENVIRONMENTAL REGULATION . . . continued2, 2002 which implemented EC Directives 99/30/CE and 00/69/CE fixes limit for emis-sion of certain polluting substances such as sulphur dioxide, benzene, lead and carbonmonoxide. Emissions beyond such limits, along with some further circumstances, maylead mayors of greater towns to adopt those measures to restrict motor vehicles’ circu-lation as they think fit.

Legislative Decree No. 171 of May 21, 2004 has recently implemented EC Directive01/81/CE which is aimed at protecting environment and human health from injuriouseffects arising from acidification, euthrofication of land and ozone presence at land level.

Air pollution is also regulated by several international conventions (Geneva Conven-tion on long-distance air pollution through borders, signed on Nov. 13, 1979 and ratifiedby Law No. 289 of Apr. 27, 1982 and Vienna Convention for the protection of the ozonelayer, signed on Mar. 22, 1985 and ratified by Law No. 277 of July 4, 1988) to whichItaly is signatory.

Smoking in public places is forbidden pursuant to Law No. 584 of Nov. 11, 1975 asamended by Law No. 3 of Jan. 1, 2003 and advertising tobacco is also prohibited by LawNo. 165 of Apr. 10, 1962.

Acoustic pollution is governed by Law No. 447 of Oct. 26, 1995. Legislative DecreeNo. 262 of Sept. 4, 2002, which implemented EC Directive 00/14/CE regulates envi-ronmental acoustic pollution of engines and devices operating in open space.

Electromagnetic pollution has been recently regulated by Law No. 36 of Feb. 22, 2001,following scientific searches on electromagnetic fields, which demonstrated danger forhuman health of electromagnetic fields.

Said law regulates and supervises utilization of electromagnetic apparatus and nationalregister of fixed and mobile sources has been created with purpose of identifying locationof said sources over land and consequently making periodic surveys on levels of elec-tromagnetism.

ESTATES AND TRUSTSADMINISTRATION:

See topic Executors and Administrators.

DEATH:If a person remains absent from his domicile or residence and gives no news for ten

years then a presumption of death arises and this is declared by the court on theapplication of the heirs of the absent person or at instance of public prosecutor. Pre-sumptive death may be declared irrespective of the prior declaration of absence. (C. C.58). See category Property, topic Absentees.

A presumption of death arises also in the following cases (C. C. 60): (a) Of personswho have disappeared in the course of war operations or have been taken prisoner bythe enemy, no news of them being forthcoming after two years from the Peace Treatyor three years after the cessation of hostilities; (b) of persons who have disappeared asa result of an accident, no news from them being forthcoming for two years from thedate of the accident. When legal consequence depends on survival of one person byanother and it is not known who died first, both are deemed to have died at same time.(4 C. C.).

Upon the issuance by competent court of declaration of presumptive death heirssucceed in estate and deceased’s spouse may remarry (C. C. 63-65) but new marriageis declared void should person declared dead return or evidence be found that he is alive(C. C. 68). In latter case, estate must be returned to him in condition in which it is atsuch time. He also has right to demand performance of obligations deemed extinguishedin accordance with effect of declaration of death. Such person may also recover priceaccruing from sale of property (if price is yet due) or new property into which such pricemay have been invested. (C. C. 66).

Under the special provisions of the Code of Navigation, in case of disappearancesarising from sea or air accidents the appropriate port or consular authority issues astatement. If such statement is positive as to the death, same is declared to all effects;if the statement contains only a presumption then the normal provisions referred to aboveare to apply.

Actions for Death.—There are no special procedures concerning actions for death.Any person who suffered damages as a consequence of a wrongful death may claim thesame through ordinary action.

Death certificates cannot be obtained by mailed request but an application preparedon appropriate stamped paper must be actually filed with the office of vital statistics ofthe place where deceased died. Usually the procurement of such certificates is handledby specialized agencies with branches or correspondents throughout the country.

DECEDENTS’ ESTATES:See topics Descent and Distribution, Executors and Administrators, Wills.

DESCENT AND DISTRIBUTION:In case of intestacy estate devolves in this order to: (a) husband or wife; (b) lawful

descendants; (c) lawful ascendants; (d) collaterals; (e) natural relatives; (f) State. (C. C.565).

The parents are succeeded by their legitimate children who share equally. (C. C. 566).Legitimate or natural children include those legitimized and those adopted. (C. C. 567).If decedent has no children, brothers, sisters or their descendants, his father and motherinherit in equal shares. (C. C. 568). If there are no children, parents, brothers or sistersor their descendants, half of estate goes to ascendants of paternal line and other half toascendants of maternal line. But if ascendants are not of same degree, inheritance goesto nearest kin. (C. C. 569).

If there are no children and no parents or other ascendants, brothers and sisters inheritin equal shares. Half-blood brothers and sisters are entitled to half of the share taken bythe full-blood brothers and sisters. (C. C. 570). If decedent leaves only parents andfull-blood brothers and sisters, all inherit per capita, provided that the share of the parentor parents shall in no event be less than one half. If there are half-blood brothers and

sisters each one inherits half of the share inherited by the full-blood brothers and sisters.(C. C. 571).

If decedent leaves no descendants, parents or other ascendants, brothers and sisters ortheir descendants, inheritance goes to the nearest kin, without distinction of line, butinheritance cannot go beyond the sixth degree. (C. C. 572). If natural child dies withoutchildren or spouse, his estate goes to parent who recognized him. If he was recognizedby both parents, estate goes to them in equal proportions. (C. C. 578). If natural childdies without leaving children or parents, his spouse inherits all the estate. If there areparents, inheritance goes: two-thirds to his spouse and one-third to his parents. (C. C.579).

Surviving spouse is entitled to one half of estate if there is only one child or one-thirdif there are two or more children. (C. C. 581). Surviving spouse is entitled to two thirdsif there are only legitimate ascendants or brothers and sisters or both. (C. C. 582).However ascendants are in any event entitled to one fourth of estate. Should there be nochildren, ascendants, brothers or sisters, surviving spouse inherits entire estate. (C. C.583). Spouse who has not been held responsible for separation by final decree has sameinheritance rights as nonseparated spouse. If spouse has been held responsible for sepa-ration by final decree, he/she is entitled to life annuity if at time of other spouse’s deathhe/she received only from spouse support allowance. Life annuity can in no event exceedsupport allowance. (C. C. 585).

When there is no kin entitled to the inheritance, the State inherits. (C. C. 586).

Non-donable Shares.—Where a will exists, the following limitations as to dispositionof the estate must be complied with by decedent who is survived by legitimate children,legitimate ascendants, natural children or spouse, having due regard to the fact that: (a)Adopted children have the same rights as legitimate children, and (b) there is a right ofrepresentation in favor of the descendants of legitimate or natural children. (C. C. 536).

As regards children reserve portion (the portion that cannot be freely disposed of bytestator) is one-half of decedent’s estate if only one child is left or two-thirds if childrenleft are two or more. (C. C. 537). If decedent does not leave legitimate children, butlegitimate ascendants, the reserve is one-third of estate. (C. C. 538).

Reserve in favor of surviving spouse is one half of estate of other spouse if no childrenare left.

When decedent leaves children and his spouse, if there is only one child, portion ofestate reserved to latter is one-third, another third goes to surviving spouse. Whenchildren are two or more, portion of estate reserved to surviving spouse is one fourth andthat reserved to children is one half of estate. (C. C. 542). Surviving spouse is in anyevent entitled to lifetime use of family home and furnishings, if owned by decedent orby husband and wife jointly. (C. C. 540).

When decedent leaves only legitimate ascendants and his spouse, latter is entitled toone half of estate, and ascendants to one-quarter of estate. (C. C. 544). There is no reservefor spouse who has been found guilty of having culpably triggered separation by finaljudgment unless he was granted alimony. In this case he is entitled to lifetime annuitythat, in any event, cannot exceed alimony. (C. C. 548). See topics Executors and Ad-ministrators, Wills; category Documents and Records, topic Affidavits.

ESTATES:

See category Property, topic Real Property.

EXECUTORS AND ADMINISTRATORS:

There is nothing in the Italian legislation which corresponds to the American probatecourt. Estates vest directly into the heirs. There are provisions for guardians, and ex-ecutors may be named. The succession opens at the moment of decedent’s death in theplace of his last residence. (C. C. 456).

Testator may name one or more executors. They must be persons capable to contract.Minors are excluded. (C. C. 700). Testator may grant to executors the right to takeimmediate possession of the estate, but such possession cannot exceed the period of oneyear from date of executor’s acceptance. Court may extend period by one more year onlyonce. If there are infants, absentees or persons deprived of civil rights among heirs,executor, upon notice, must cause property to be sealed and make inventory of same inpresence of heirs. At end of administration, executor must account. All expenses inconnection with administration of estate are chargeable to estate. (C. C. 703-705-709-712).

The heir entitled to receive the property of a decedent may obtain same from theexecutor by furnishing him a sum of money sufficient to pay legacies or by furnishinghim evidence of having satisfied them as directed by testator in his will. (C. C. 707).Italian death duties are payable on world-wide estate except when deceased at time ofdeath was domiciled abroad. In this case death duties are payable only on such portionof estate, as is located in Italy.

FIDUCIARIES:

See topics Executors and Administrators, Trusts.

INTESTACY:

See topic Descent and Distribution.

TRUSTS:

A trust, in the technical sense and in the manner contemplated in America, does notexist in the Italian legal system because a beneficial title different from the legal title isunknown to Italian law. By different means the same results as those of American trustscan be often obtained, for anybody may appoint an attorney or an administrator fordispositions directed to benefit a third person. But the main difficulties arise in the casesof trusts established by will and testament. Testator cannot, by will, leave his estate toa person, directing him to transfer the property to a third person except where suchdirections are made in respect of testator’s sons or of brothers and sisters or of charitablebodies.

The deceased may appoint by will an administrator to take care of the estate left tohis children during their minority, but the property remains irrevocably in the children’s

ENVIRONMENT MARTINDALE-HUBBELL LAW DIGEST - 2007



TRUSTS . . . continuedpossession from the date of their father’s death, and the administrator cannot alienate anypart of the estate without a special authorization of the court.

Italy is party to Hague Convention of July 1, 1985, on law applicable and recognitionof trusts, which has come into effect on Jan. 1, 1992 by Law No. 364 of Oct. 16, 1989.

WILLS:

A will cannot be made by one who has not attained full age (18 years) or is notmentally sound (C. C. 591), or by one who was for any reason incapable of understandingor intending at moment when he made will.

A will may be holographic or notarial and in this latter case it may be secret or public.Will may also be special.

(a) A holographic will must be entirely handwritten, dated and signed by the testator.(C. C. 602).

(b) A public will is drawn before a notary public in the presence of two witnesses. (C.C. 603).

(c) A secret will may be written by the testator or by a third person. If it is writtenby the testator, it must be signed at the bottom. If written partly or wholly by thirdpersons or mechanically, it must be signed by the testator at the bottom and on everypage. In either case it must be sealed up and handed to notary in presence of twowitnesses. Notary draws up statement to effect that will has been handed to him, and suchstatement must be signed by testator, witnesses and notary. (C. C. 604-605).

(d) Special wills are those made during prevalence of contagious diseases or in caseof public calamity or accident. Such wills become void after three months have elapsedsince cessation of the extraordinary circumstances under which they were made. (C. C.609). Special wills are also those made on high seas or on board aircraft (C. C. 611-616)and those made by soldiers in zones of war operations. Such wills become void whenthree months have elapsed since testator has returned to place where ordinary will canbe drawn up. (C. C. 618).

Whoever is in possession of a holographic will must deposit the same with a notarypublic for publication as soon as he becomes aware that testator is dead. Publication ismade by notary, who draws up certificate thereof in presence of two witnesses. (C. C.620).

A secret will must be opened and published by the notary as soon as he receives noticeof the death of the testator, in the presence of two witnesses. (C. C. 621).

The notary who has received a public will must communicate the existence of the sameto the heirs as soon as he has knowledge of the testator’s death; the same communicationto heirs and legatees must be done by notary after publication of holographic or secretwill. (C. C. 623).

Wills executed by two or more persons in the same instrument whether in favor of athird person or for mutual benefit (survivorship clause) are prohibited. (C. C. 589). Seetopic Descent and Distribution.

FAMILYADOPTION:

Persons wishing to effect adoption when adoptee is of age must: (a) Have no legitimatedescendants, or have descendants of age consenting to adoption, and (b) have attained35 years of age and be at least 18 years older than adoptee. (C. C. 291).

Persons wishing to effect adoption when adoptee is under age must: (a) Be marriedfor three years or more, (b) not be judicially or de facto separated, (c) be able to educateand support adoptee, (d) be no less than 18 years and no more than 45 years older thanadoptee (both such limits may be exceeded under some circumstances). (Law No. 184of May 4, 1983, as am’d and supplemented also by Law No. 149 of Mar. 28, 2001).

Children born out of wedlock may not be adopted by their parents.

Consent Required.—Adopter’s and adoptee’s consent is required, but if adoptee isunder age of 18, Juvenile Court must declare that adoptee may be adoptable. Suchdeclaration is subject to ascertaining that parents of adoptee died or cannot be found orrefused to appear in Court or showed to be unable and unwilling to assist and supportadoptee. Same declaration is not required in special circumstances, such as adoption byrelatives or persons living with adoptees before death of parents, etc. If adoptee is overage of 12, he must be personally interviewed by court; if he is between age of 14 and18 his consent is required. In case of adoption of person over age of 18, if adoptee oradopter are married, assent of other spouse is also required and in any event adoptee’sparents’ assent is also necessary. (C. C. 296-297). Failing such consent adoption can beauthorized by court if same is proved to be in interest of adoptee.

Jurisdiction upon adoption proceedings pertains to tribunal or Juvenile Court ofdistrict where adoptee resides.

Name.—Adoptee takes surname of adopter and adds his own to it. If adoptee is underage or was born out of wedlock and was not recognized by his natural parents, he takesonly adopter’s name. If adoption is made by husband and wife adoptee takes surnameof husband. (C. C. 299).

Revocation.—Adoption may be revoked: (a) By adopter on grounds of unworthinessof adoptee when latter has made attempt upon life of adopter, his spouse, his ascendantsor descendants, or if adoptee has been found guilty of crime in their respect, involvingprison term of no less than three years. Death of adopter at hands of adoptee give riseto legitimate claim on part of those persons who would have had title to adopter’s estatein absence of adoptee; (b) by adoptee on same grounds stated above. (305-307 and 309C. C.).

Effect of Adoption.—Adoptee, when he is over 18, maintains all his rights and dutiestowards his original family, except that guardianship (potestá genitoria) is vested untoadopter. No civil rights arise between adopter and adoptee’s family and likewise betweenadoptee and adopter’s family. (C. C. 300). If adoptee is under age of 18 he acquires statusof legitimate son of adopter and all relations with his family of origin cease to exist,except for prohibition to marry natural relatives.

Except upon specific approval of appropriate authorities adopter and adoptee may notmarry each other. (C. C. 87).

Adoptee enjoys same rights of inheritance from adopter as legitimate child (seecategory Estates and Trusts, topic Descent and Distribution) but he does not enjoy anyright of inheritance from family of adopter. (C. C. 567).

Special Adoption.—Special rules are set forth by Law No. 184 of May 4, 1983, asamended and supplemented by Law No. 476 of Dec. 31, 1998 for adoption of foreignersunder age or for adoption by foreigners of minor Italian children.

International adoption is governed by Hague Convention of May 29, 1993 for pro-tection of minors and cooperation in international adoption matters ratified by Law No.476 of Dec. 31, 1998. D.P.R. No. 492 of Dec. 1, 1999 has set rules relating to organi-sation, constitution and working of “Commission for International Adoption” pursuant toArt. 7 of Law No. 476 of Dec. 31, 1998.

D. M. June 28, 1985 provides for principles and criteria to grant authorisation tononprofit entities, having legal personality, to deal with organization and promotion ofadoption of foreigners under age.

DIVORCE AND SEPARATION:Grounds for Divorce.—Either spouse may obtain a divorce on any of following

grounds: (1) When other spouse has been sentenced to life imprisonment or to impris-onment for more than 15 years; (2) when other spouse has been sentenced to impris-onment for any period of time as a consequence of serious crimes against other spouseor certain other members of family or as consequence of certain serious crimes againstthird parties; (3) when other spouse has been acquitted on grounds of mental insanityfrom crimes against other spouse or certain other members of family; (4) when husbandand wife have been living apart for at least three years since separation hearing, as resultof judgment of separation issued by court; (5) when husband and wife have been livingapart as matter of fact since at least two years before Dec. 18, 1970; (6) when otherspouse has carried out actions referred to in (2) above (except for case of injuries to otherspouse and/or certain other members of family), although this has not resulted in hisbeing convicted; (7) when spouse is foreign national and has obtained abroad divorce orannulment of marriage, or has remarried; (8) when there was no marital intercourse and(9) when judgment certifying change of sex has become final.

Jurisdiction and Proceedings.—Application for divorce must be filed with court ofplace of residence of defendant or, if defendant resides abroad, with court of place ofresidence of plaintiff or, finally, should both spouses reside abroad, with any Italian court.Judgment granting divorce provides also for custody of children and for alimony fromhusband to wife or vice versa, according to circumstances. Alimony obligation ceases incase of remarriage of spouse in whose favor it was granted.

Name.—Final judgment of divorce is registered in public vital statistics records andwoman loses right to use husband’s surname, unless specific authorisation is granted bycourt to add such surname to her maiden family name, whenever she has specific interestfor herself or for her children; after such registration each spouse may remarry. (Law No.898 of Dec. 1, 1970 as am’d by Laws No. 436 of Aug. 1, 1978 and No. 74 of Mar. 6,1987).

Annulment of civil or non-Catholic marriages is granted by civil courts, of Catholicmarriages by Ecclesiastical Courts in conformity with Lateran Treaty executed betweenItaly and Vatican on Feb. 11, 1929 as amended and supplemented by agreement executedbetween Italy and Vatican on Feb. 18, 1984. Grounds for annulment are substantially:(a) Infirmity of mind of either spouse; (b) either spouse’s consent having been extortedby use of violence or being result of an error in identity; (c) either spouse’s impotentiacoeundi antecedent to marriage and unknown to other spouse.

Separation, a mensa et thoro, between husband and wife may be granted because ofany reasons rendering unbearable their life in common or being prejudicial to educationof children. (C. C. 150-151). Separation may also be based on mutual consent to beexpressed before court and ratified by same. (C. C. 158). Subsequent cohabitation be-tween parties to a separation voids decree of separation. (C. C. 157).

Law No. 54 of Feb. 8, 2006 introduces new provisions on joint custody of childrenduring separation period for purposes of ensuring children their rights to be brought upby both parents.

HUSBAND AND WIFE:Marital property can be governed by a contract (matrimonial articles). Where no such

contract exists, property of spouses acquired after marriage is under joint ownership(‘‘comunione’’). See topic Marriage; category Property, topic Dower and Dowry.

INFANCY:Age of majority is 18 for both sexes. (C. C. 2).A minor is represented jointly by his father and mother or his guardian or by parent

who has exclusive parental authority over minor; these have also management of hisgoods and properties. (C. C. 320).

Extraordinary contracts and transactions concerning minor and his properties are to beauthorized by the ‘‘Giudice Tutelare’’ or by Tribunal (C. C. 320) and in absence ofauthorization may be voided upon request of parents having parental authority, minor orhis heirs or successors. (C. C. 322).

MARRIAGE:Both spouses must be 18 years old. But marriage at age of 16 years may be permitted

by decree of court upon request of interested party, having determined his psychophysicalmaturity and grounds of reasons submitted. (84 C. C.).

Marriage can be celebrated only after due publication of the bans by the appropriateofficer. (C. C. 93).

Widow may remarry 300 days after death of her husband. The same period must elapsein case of annulment (except for impotence) or dissolution of the marriage. (C. C. 89).

Marriage is prohibited between certain categories of persons, such as: (1) Ascendantsand legitimate or natural children; (2) affinities of the same line; (3) lawful or naturalbrother and sister; (4) affinities of the same degree; (5) uncle and niece or aunt and

ITALY LAW DIGEST FAMILY



MARRIAGE . . . continuednephew; (6) an adopter and person adopted or their descendants. (C. C. 87). Marriagesindicated Nos. (4) and (5) may be permitted by the appropriate authorities. (C. C. 87).

Marriage can only be proved by certified extract from the records of the Office of VitalStatistics. (C. C. 130).

Marriage by proxy is permitted to soldiers in time of war and also when one of thespouses resides abroad and serious motives exist as assessed by the Attorney General.The proxy must be made by a public instrument. The marriage cannot be celebrated after180 days have elapsed since issue of the proxy. (C. C. 111).

A foreigner who wants to marry in Italy must present to the Office of Vital Statisticsan affidavit from the competent authorities of his country (practically his local consul),stating that according to his law there is no impediment to the marriage. (C. C. 116).

By virtue of the Concordat between the Vatican and Italy, February 11, 1929, asamended on Feb. 18, 1984, marriage may be celebrated by Catholic minister and mustbe notified to Office of Vital Statistics. Non-Catholic marriages are celebrated by relevantnon-Catholic minister authorized by Office of Vital Statistics. Civil marriages are cel-ebrated by appropriate municipal officers (mayor, etc.). Annulments of matrimony pro-nounced by ecclesiastical authorities must be approved by decree of Supreme Tribunalof Signature and then filed for execution before court of appeals, which orders recordingof judgment in records of Office of Vital Statistics. See topic Divorce and Separation.

MARRIED WOMEN:See topics Husband and Wife, Marriage.

SEPARATION:See topic Divorce and Separation.

FOREIGN TRADE AND COMMERCECUSTOMS:

Imports from foreign countries are subject to custom duties and in some cases to aspecial import licence. Rates of duties, which vary depending on categories of goods, areset forth in Customs Tariff. European Union imports are subject only to very limitedadministrative duties. Italy is a party to General Agreement on Tariffs and Trade.

See also European Union Law Digest, category Foreign Trade and Commerce, topicCustoms Duties.

EXCHANGE CONTROL:See topic Foreign Investments; category Introduction, topic Currency.

FOREIGN EXCHANGE:See topic Foreign Investments; category Introduction, topic Currency.

FOREIGN INVESTMENTS:In keeping with deregulatory process in foreign exchange matters, Law No. 43 of Feb.

7, 1956 has been repealed by D.P.R. No. 148 of Mar. 31, 1988 as subsequently am’daccording to which, with respect to its relevant monetary provisions, investments offoreign capital, imports and exports of goods and economic and financial transactionshave been fully liberalised and investments of foreign capital fully liberalised. As rule,no authorisation of Italian Currency Control Authorities is any longer required for foreignloans, guarantees and foreign trade transactions.

FOREIGN TRADE REGULATIONS:Italy is a signatory of Convention relating to a Uniform Law on the International Sale

of Goods of Wien of Apr. 11, 1980, which has become effective on Jan. 1, 1988.See topic Foreign Investments; also category Introduction, topic Currency.

IMMIGRATIONALIENS:

Alien or stateless person, whose father or mother or one of whose direct ascendantsin second degree were citizens by birth, becomes citizen of Italy: (a) if he enters activemilitary service for Italian State and prior thereto declares that he intends to acquireItalian citizenship; (b) if he accepts public employment from State, even if abroad, anddeclares that he intends to acquire Italian citizenship; (c) if upon reaching full age he hasresided legally in territory of Republic for at least two years and declares within one yearafter attaining full age that he intends to acquire Italian citizenship. (art. 4, Law No. 91of Feb. 5, 1992 as am’d and supplemented).

Alien or stateless spouse of Italian citizen acquires Italian citizenship after six monthsif he resides in Italy or three years after date of marriage, provided there was nodissolution or annulment of marriage and no divorce or separation, upon presentation ofspecific documentation as required by Art. 1 of D. P. R. No. 362 of Apr. 18, 1994 asamended and supplemented.

Application may be denied if applicant has been found guilty of certain political crimesor of crimes for which law provides punishment maximum of which is not less than threeyears’ imprisonment.

Citizenship may be granted by presidential decree on favorable opinion of StateCouncil and recommendation of Minister of Internal Affairs to: (a) alien whose father ormother or direct ascendant within second degree was citizen by birth, or who was bornin Republic and in both cases, has legally resided in Italy for at least three years; (b) alienwho is of age and is adopted by Italian citizen who after adoption resides legally in Italyfor at least five years; (c) alien who has been in Italian government service for at leastfive years, even if abroad; (d) alien who is citizen of member state of European Unionand has legally resided in Italy for at least four years; (e) stateless person who has legallyresided in Italy for at least five years; (f) alien who has legally resided in Italy for at leastten years. In exceptional and special cases Government may grant citizenship to persons

not having above requisites. (art. 9, Law No. 91 of Feb. 5, 1992 as am’d and supple-mented).

See also topic Immigration and European Union Law Digest, category Foreign Tradeand Commerce, topic Internal Market, subheads Free Movement of Workers and Free-dom to Provide Services.

Corporations Owned or Controlled by Aliens.—Italian corporations may be, ingeneral, owned or controlled by aliens without limitations. Italian corporations owningand operating aircraft or vessels, however, must be under control and management ofItalian citizens; furthermore, Italian corporations engaging in motion pictures productionare not eligible for certain government subsidies unless their management is entrusted toItalian citizens.

See also category Property, topic Real Property.

IMMIGRATION:

EU nationals enjoy freedom of movement and establishment within Italian territory inpursuance of relevant provisions of EU Treaties.

Italian legislation on immigration provides that non-EU nationals wishing to enter Italymust hold valid passport (or equivalent document) and access visa to be granted by eitherItalian Consulate or diplomatic delegation based in foreigner’s country of origin. (Con-solidated Laws on immigration and status of aliens: Legislative Decree No. 286 of July25, 1998 as am’d and supplemented and D.P.R. No. 394 of Aug. 31, 1999 as am’d andsupplemented). Such requirements are to be met for stays not exceeding three monthsin duration. For longer stays sojourn permit must be obtained from police authoritieswithin eight business days from entry into Italy. Length of permit varies according tospecific purpose of stay. ‘‘Sojourn card’’ bearing unlimited validity may be issued bypolice authorities to those (i) who have regularly held, and duly renewed, their sojournpermit for at least six years starting from their initial entry and (ii) who may provideevidence of income sufficient to meet their needs and those of their families. Sojourn visamay be released by police authorities to allow families rejoining those who (i) haveregular sojourn card or sojourn permit or EU citizenship, (ii) provide evidence of incomeas required by Legislative Decree No. 286 of July 25, 1998, as amended and supple-mented and (iii) have duly certified accommodation in Italy. Sojourn visa may also begranted by police authorities in course of certain investigations to those who have offeredcertain kind of cooperation. (art. 2, D.L. No. 144 of July 27, 2005).

See also topic Aliens and European Union Law Digest, category Foreign Trade andCommerce, topic Internal Market, subheads Free Movement of Workers and Freedom toProvide Services.

INTELLECTUAL PROPERTYCOPYRIGHT:

Protection of copyrights is governed by Law No. 633 of Apr. 22, 1941 as amendedand supplemented also by Legislative Decree No. 68 of Apr. 9, 2003 implementing ECDirective No. 29 of May 22, 2001, by Legislative Decree No. 72 of Mar. 22, 2004, byLegislative Decree No. 30 of Feb. 10, 2005 and by Legislative Decree No. 140 of Mar.16, 2006. Furthermore, pursuant to Art. 19 of Law No. 248 of Aug. 18, 2000 committeeof Presidency of Council of Ministers together with Ministry for Arts and Culture hasbeen created to fight violations of copyrights. Author of creative pieces in fields ofscience (including computer software), literature, figurative arts, music, architecture,theater, cinema, radio and television has exclusive right to publish and to exploit hisworks. (art. 12). These rights include reproduction in any way and by any means (art.13), performance in public (art. 15), broadcasting (art. 16), trading (art. 17), translationand adaptation (art. 18) of protected works. Aforesaid rights may be purchased, sold,transferred or assigned (art. 107) independently one from another. Furthermore, author,as well as his heirs, has ‘‘moral right’’ over his works, i.e., right to assert his authorshipand to restrain anyone from altering works in manner prejudicial to his honour orreputation. (art. 20). Such right is of personal nature, not transferable and not subject totime limitations.

Duration of protection of economic (as opposed to ‘‘moral’’) rights is throughout lifeof author and for 70 years after his death. (art. 25 implementing EC Directive No. 98of Oct. 29, 1993). So far as concerns motion pictures, said term is to start from day onwhich whom among persons deemed to be their co-authors dies last. (art. 32 as am’d byLegislative Decree No. 154 of May 26, 1997).

New works need not be deposited for them to be protected under Law, but register isin use, and registration is normal procedure followed.

New legislation aimed at implementing EU directive No. 96/9/CE on legal protectionof data banks, has been enacted by Legislative Decree No. 169 of May 6, 1999 by wayof supplementing existing Copyright Law. Such statutory instrument enables any indi-vidual who creates data bank, that is to say any collection of works, data or otherindependent items which are systematically and methodically organized, to benefit fromexclusive right to carry out or authorize (i) reproduction; (ii) translation, adaptation aswell as any other alteration; (iii) any form of distribution to public of copy; (iv) any sortof presentation, demonstration or communication to public thereof. Duration of protec-tion conforms with general provisions under Copyright Law. No authorization for databank’s exploitation is to be sought when latter is due to educational or scientific needs,to fulfil public security reasons as well as to needs arising from administrative or judicialproceedings.

Protection is further recognized (to last 15 years from Jan. 1 of year following onewhen data bank has been completed or disclosed to public), and is to cover excerptionor reutilization, in whole or in part, of data bank contents, also to “constitutor” of databank (i.e. individual or corporate body making relevant investments with view to es-tablishing data bank).

Copyrights Law applies only to Italian citizens or residents. Protection of foreignworks is subject to reciprocity and is often governed by International Conventions. Worksof American citizens or residents are protected now in Italy under the Universal Copy-right Convention which came into effect in Italy under Law July 19, 1956, No. 923.

See also European Union Law Digest, category Intellectual Property, topic Copyright.

FAMILY MARTINDALE-HUBBELL LAW DIGEST - 2007



PATENTS:

Patents are governed by Legislative Decree No. 30 of Feb. 10, 2005 as amended andsupplemented (“Code of the Industrial Property”).

Objects of the patents are all new inventions, which may have industrial exploitation.(art. 45).

Application for patents must be filed with ‘‘Ufficio Italiano Brevetti e Marchi’’ byinventor or those having right. (art. 147). Patents have duration of 20 years, from dateof application. (art. 60). All rights relative to and deriving from patents are freelyassignable and transmissible. Patent’s assignments and licenses must be recorded with‘‘Ufficio Italiano Brevetti e Marchi’’ (art. 147) to become enforceable against thirdparties. Rights on patents are attributed from date of publication of relevant applications.(art. 53).

Italy is member of existing International Convention on patent protection (so-called‘‘Union de Paris,’’ last revised at Stockholm July 14, 1967, ratified under Law No. 424,Apr. 28, 1976 and relevant Protocol signed in Madrid on June 27, 1989 ratified by LawNo. 169 of Mar. 12, 1996) and is signatory of International Convention regarding depositof models and industrial designs (so-called ‘‘Arrangement de La Haye’’ last revised inGeneva on Aug. 29, 1975 and ratified by Law No. 37, Jan. 25, 1983).

Italy is also signatory of Patent Cooperation Treaty signed in Washington on June 19,1970 as amended on Feb. 3, 1984 (ratified by Law No. 260 of May 26, 1978 assupplemented by Law No. 890 of Dec. 21, 1984) providing international registration forpatents and of Munich Convention of Oct. 5, 1973 on European patents. EU patents aregoverned by Luxembourg Convention of Dec. 15, 1975 ratified by Law No. 260 of May26, 1978.

See also European Union Law Digest, category Intellectual Property, topic Patents.

TRADEMARKS:

Trademarks are governed by Code of the Industrial Property.All new words, designs, sounds and/or emblems which may be able to identify

products or goods on market may be registered as trademarks and are protected uponsuch registration for renewable period of ten years from date of application. Under certainconditions, de facto use of unregistered trademark is also protected.

In order to be enforceable against third parties, assignments and licences of trademarksmust be recorded with ‘‘Ufficio Italiano Brevetti e Marchi’’.

Applications for registration must be filed with ‘‘Ufficio Italiano Brevetti e Marchi’’by person who has right to obtain it. (art. 147). Trademarks must be used actually withinten years from registration of relevant application (art. 15), and their use may not besuspended for period of ten years, without losing protection. (art. 16).

Italy is signatory of existing International Convention on trademarks protection (so-called ‘‘Union de Paris’’, last revised at Stockholm, July 14, 1967, ratified by Law No.424, Apr. 28, 1976), of ‘‘Madrid Arrangement for the International Registration ofTrademarks’’ (last revised at Madrid, June 27, 1989, and ratified by Law No. 169, Mar.12, 1996).

EU trademarks are governed by Reg. No. 40\1994, Dec. 20, 1993.By Law No. 102 of Mar. 29, 1999, Italy has also ratified International Treaty on the

Trademark Law signed in Geneva on Oct. 27, 1994.

MORTGAGESCHATTEL MORTGAGES:

Personal property may not be mortgaged in Italy. The practical effects of chattelmortgages are, however, obtained by means of pledges (C. C. 2784-2807), which becomevalid and operative upon physical possession of the property passing to the creditor orto a trustee appointed by both parties. The pledge must be evidenced by a duly registeredwritten instrument if the credit which it secures exceeds the sum of 5,000 lire, and thecreditor who holds such a pledge is entitled to preference over other unsecured creditorson the proceeds of the sale of the pledged property, but he may in no way appropriatethis property; nor can the creditor use or otherwise dispose of the pledged propertywithout the pledgor’s consent.

COLLATERAL SECURITY:

See topic Chattel Mortgages.

MORTGAGES:

Mortgages attach to real property only and to registered movables, such as vessels,aircraft and automobiles. There are three kinds of mortgages: legal, judicial and vol-untary. (C. C. 2808).

The legal mortgage is created by law (C. C. 2817) and attaches among others to (a)property sold as security to seller against buyer’s failure to fulfil obligations arising fromsale, (b) property of co-heirs, partners and other co-partitioners as security for paymentof adjustments required as result of partition; (c) property of criminal defendant, assecurity to State in respect of expenses of trial, recovery of damages thereof, etc.(provisions of penal code about legal mortgage having been repealed, any such kind ofmortgage formerly arising from penal rules is to be replaced by preserving sequestration).Judicial mortgage is that which can be filed on property of one against whom judgmentis rendered carrying order to pay sum or to perform another obligation or to compensatefor damages to be subsequently liquidated. Voluntary mortgage is originated by unilateraldeed or by agreement entered into between parties as evidenced by written instrument.Mortgage must clearly set forth sum of money secured. Priority of mortgage is deter-mined by date of its filing in office of register of mortgages. It continues as lien for 20years, and unless renewed prior to expiration of this period it loses any priority it mighthave had on other liens which have attached to property since filing of mortgage. (C. C.2847). Mortgage can be cancelled by limitation, or release or satisfaction by creditor.Release must be expressly stated in writing by creditor. (C. C. 2878, 2879). See topicChattel Mortgages.

PROPERTYABSENTEES:

Should any person fail to appear at place of his last domicile or residence and no newsthereof be available, interested parties or heirs of such person may obtain from court theappointment of an administrator to transact absent person’s business. (C. C. 48). Dec-laration of absence may be obtained from court in event of protraction of absence fortwo years or more. (C. C. 49). Upon issuance of said declaration heirs, under will or byoperation of law, may be granted temporary possession of absent person’s estate. (C. C.50). Those that have thus been granted temporary possession of estate may not disposeof it, but they may retain income deriving therefrom to variable extent depending upondegree of kinship with absentee. Should absentee return or evidence be found that he isalive his estate must be restored, but those in temporary possession may retain any andall benefits legitimately accrued to them until that time. (C. C. 56). See also categoryEstates and Trusts, topic Death.

ADVERSE POSSESSION:Acquisition of title through possession of real estate inconsistent with title of another

is subject to the following: (a) possession is not protected if acquired by means of fraudor violence; and (b), possession usually continues uninterrupted for 20 years or for tenyears, but in latter case only if real estate was acquired in good faith from one not beingowner, by appropriate instrument duly recorded. (C. C. 1158–1159).

CONVEYANCES:See topic Deeds.

CURTESY:Unknown to Italian legal system. Wife and husband have same rights as to inheritance.

See topic Dower and Dowry; category Estates and Trusts, topic Descent and Distribution.

DEEDS:Conveyances of real estate, easements, leases or partnerships whose term exceeds nine

years, perpetual or life incomes, settlements and other contracts provided by law in orderto be valid instruments must be in writing. (C. C. 1350). All instruments relating tocreation or assignment of rights with respect to real property must also be recorded inbooks of Conservatore dei Registri Immobiliari (Keeper of Real Property Records). Actssubject to said recording are those specified by law. See also category Taxation, topicStamp Duties and Registration Taxes, subhead Registration Taxes.

DOWER AND DOWRY:Property of spouses acquired after marriage are under a joint ownership (comunione).

Income accruing from properties must be used for support of family. (C. C. 177-197).Management of joint property pertains to husband and wife severally. Extraordinarymanagement and disposal of joint ownership pertain to husband and wife jointly. How-ever, an agreement may be entered into between spouses to keep all respective propertiesseparate. In this case neither spouse acquires any rights in property of other, whetherpersonal or real, as result of marriage, except for rights of each of them to distributiveshare of estate of deceased spouse. (C. C. 215-219). See category Estates and Trusts,topic Descent and Distribution. Husband and wife or a third person may constitute afamily patrimony which cannot be alienated and income arising therefrom goes to family.(C. C. 167-171).

ESCHEAT:See category Estates and Trusts, topic Descent and Distribution.

GIFTS:Donation inter vivos must be made by notarial instrument executed in presence of two

witnesses and must be accepted by donee in same act or in a subsequent public instru-ment. (C. C. 782). Small gifts of movables are valid without public instrument, providedthere has been actual delivery thereof. Moderate value of gift must be evaluated ac-cording to financial situation of donor. (C. C. 783). Gift can be revoked for ingratitudeor as result of birth of children to donor. (C. C. 800). See also category Civil Actionsand Procedure, topic Conflict of Laws.

LANDLORD AND TENANT:Leases in General.—Term of lease cannot exceed 30 years. Lease agreement need not

be in writing unless term exceeds nine years, in which case agreement must be in writtenform and cannot be claimed against third parties unless recorded in books of Conser-vatore dei Registri Immobiliari (Keeper of Real Property Records). Paragraph 346 ofLaw No. 311 of Dec. 30, 2004 has provided that lease agreements which are not recordedin books of Conservatore dei Registri Immobiliari (Keeper of Real Property Records)when required by law, are considered void. Subleasing is permitted subject to contraryprovisions in lease agreement.

Lessor’s Main Obligations.—Lessor must: (1) Deliver property to lessee in good stateof repair; (2) keep it in condition such as will be suitable for use agreed; (3) ensure itspeaceful enjoyment throughout lease.

Lessee’s Main Obligations.—Lessee must: (1) Take delivery of property and observediligence of bonus pater familias in using it for agreed purposes; (2) pay rent on datesagreed; (3) return property to lessor upon termination of lease in same condition asoriginally delivered, subject to normal wear and tear.

Loss or Deterioration of Property.—Lessee is liable for loss or deterioration ofproperty, even as result of fire, unless he proves that loss or deterioration occurred forreason not ascribable to him.

Improvements.—Lessee is not entitled to compensation for his improvements toproperty unless such improvements were consented to by lessor.

ITALY LAW DIGEST PROPERTY



LANDLORD AND TENANT . . . continuedTerm.—Leases for specified term terminate at expiration thereof without notice.

Leases for indefinite term terminate upon giving by either party to other of notice agreedor required by custom. If upon termination lessee is left in possession of property, leaseis deemed to have been renewed for indefinite period.

Special Legislation.—Ordinary rules set forth in Civil Code in respect of leases wereaffected for many years by special legislation consisting mainly of rental freezing andforceful extension of lease agreements. Law No. 392 was enacted on July 27, 1978,which, as result of Law No. 431 of Dec. 9, 1998 as supplemented by Ministerial Decreesof Mar. 5, 1999, Dec. 30, 2002 and Mar. 10, 2006 and by Law No. 2 of Jan. 8, 2002,substantially affects lease of commercial premises with some general provisions thereofstill being applicable to both residential and commercial leases. Main features of suchlaw, as amended and supplemented, are as follows: (a) commercial leases cannot last lessthan six years or nine years in case of hotel leases; (b) subject to certain specific needsof landlord, duration of leases is automatically renewed at first expiration date for furthersix or nine years, as case may be; (c) increases of rent cannot exceed preset index-linkedthreshold.

Law No. 431 of Dec. 9, 1998 as implemented by Law Decree No. 240 of Sept. 13,2004 converted into Law No. 269 of Nov. 12, 2004 has introduced new Legislation inrelation to leases of residential premises whose basic principles are: (i) Lease agreementsmust be in writing; (ii) duration of agreements is not to be less than four years subjectto automatic renewal for further four years unless specific needs of landlord arise; (iii)different arrangements as to duration may be agreed upon in compliance with thoseprovisions set out in standard agreements to be entered into, on local basis, betweenorganisations for residential property and most representative organisations of tenants.

Law Decree No. 240 of Sept. 13, 2004 introduces specific lease agreement containingfavorable conditions to lessees in distress and having burden of elderly or handicappedrelatives.

Agricultural Leases.—These are governed mainly by special legislation and by LawNo. 203 of May 3, 1982 (as am’d by Legislative Decree No. 228 of May 18, 2001).Agricultural leases cannot last less than 15 years and rent cannot exceed amount de-termined on basis of parameters established from time to time by governmental com-mission.

PERPETUITIES:

Generally they are prohibited. When the property is vested, the same goes into theexclusive possession of the other person without any limitation as to disposition. Abenefit may be granted to a third person for the usufruct, but only for life, or for 30 yearsin case of legal person.

REAL PROPERTY:

The Italian Civil Code divides all properties into ‘‘beni immobili’’ (immovables) and‘‘beni mobili’’ (movables). The former correspond to real property. (C. C. 812-819).

Beni immobili are lands, whatever is erected on land, trees, crops, rivers and springs.There are no restrictions on foreigners and nonresidents for purchase, ownership or

sale of real property.

TAXATIONADMINISTRATION:

Tax administration is conducted by Ministry of Economy and Finance, save for minortaxes which sometimes are managed by other entities. Ministry of Economy and Financeis organized in five departments each having central and local offices. Central offices donot have direct contact with taxpayers, but coordinate local offices and carry out variousactivities such as interpretation of tax legislation, drafting of bills for legislative taxreforms and acquisition of data. Legislative Decree No. 300 of July 30, 1999 as sub-sequently amended has enacted major reform of Ministry of Economy and Finance. Suchreform has introduced tax agencies having legal personality which have inherited allfunctions discharged by ministerial departments. After having transferred its functions tosaid tax agencies, Ministry of Economy and Finance has maintained supervisory, control,coordination, guidance and policy roles only.

In Italy, tax controls are performed also by military corps of “Guardia di Finanza”originally created for customs administration purposes and, from then on, increasinglyutilized for accountancy inspections and for legal interpretation. In 1980 Central Serviceof Tax Inspectors (“SECIT”) was established with view to placing under direct controlof Minister of Finance special inspection body independent from ministerial bureaucracy.

Assessment of taxation is made by competent offices exclusively pursuant to facts andlegislative provisions. No discretionary powers to mediate public or private interests orto consider other needs or factors may be exercised in connection therewith.

Major reform of sanctions and penalties was enacted through Legislative Decree No.472 of Dec. 18, 1997 as amended which reorganized existing legislation and set forthgeneral principles governing fiscal sanctions’ subject matter.

Legislative Decree No. 344 of Dec. 12, 2003 (“Legislative Decree No. 344”) imple-menting Delegation to Government contained in Law No. 80 of Apr. 7, 2003, hasintroduced wide reform of Italian Tax Regime amending consolidated act on incometaxes adopted by D.P.R. No. 917 of Dec. 23, 1986.

ALCOHOL, BEVERAGES AND TOBACCO TAXES:

See topic Excise Taxes.

BUSINESS TAX:

See topic Income Tax.

CONSUMPTION TAXES:


CUSTOMS DUTY AND TAX:

Collection of customs duties and taxes is not sole purpose of customs legislation whichis aimed at pursuing various targets which include supervision over international trade,monetary control as well as health and hygienic control. Customs legislation is mainlyset forth in consolidated laws on customs enacted through D.P.R. No. 43 of Jan. 23, 1973,as amended and supplemented. EU Directives Nos. 79/695/CEE of July 24, 1979 and82/57/CEE of Dec. 17, 1981 on procedures for free transfer of goods and Nos. 81/177/CEE of Feb. 24, 1981 and 82/347/CEE of Apr. 23, 1982, on procedures for export ofgoods of EU origin (all repealed by European customs code introduced with EC Regu-lation No. 2913/92 of Oct. 10, 1992 as am’d), were implemented through LegislativeDecree No. 374 of Nov. 8, 1990.

EXCISE TAXES:

Indirect imposts on production or consumption of national goods and correspondingcross border taxes for imported goods, are denominated “excises” according to EUterminology.

Global reorganization of national legislation and EU provisions were implemented byLegislative Decree No. 504 of Oct. 26, 1995 (so-called “consolidated laws on excises”)as amended and supplemented, inter alia, by Law No. 388 of Dec. 23, 2000 (Budget Lawfor year 2001) and by Law No. 342 of Nov. 21, 2000 in respect of following impostson: production of alcohol and on beers; production of mineral oils; consumption ofelectricity; consumption of methane gas; consumption of lubricants and on bitumen.

Imposts on production of tobacco and matches were excluded from such reorganiza-tion.

System of tax application on refined tobacco was enacted through and is governed byLaw No. 76 of Mar. 7, 1985, as amended and supplemented, inter alia, by D.L. No. 331of Aug. 30, 1993 and D.M. No. 67 of Feb. 22, 1999 and by D.L. No. 24 of Jan. 30, 2004converted into Law No. 87 of Mar. 31, 2004.

Impost is due on production of matches pursuant to R.D. No. 560 of Mar. 11, 1923.EU provisions have been implemented, inter alia, through Law No. 198 of May 13, 1983,D.L. No. 331 of Aug. 30, 1993 and D.M. July 4, 1994.

GASOLINE AND SPECIAL FUELS TAXES:


GIFT TAX:

Gift tax has been repealed by Law No. 383 of Oct. 18, 2001 (“Law No. 383”).However, for donees other than spouses, direct descendants or ancestors and other

relatives within fourth degree, if and to extent that value of gift attributable to each suchdonee exceeds €180,759.91, gift may be subject to ordinary transfer taxes.

Moreover, anti-avoidance rule is provided by Law No. 383 for any gift of securities,which is sold for consideration, that would give rise to capital gains subject to impostasostitutiva provided for by Legislative Decree No. 461 of Nov. 21, 1997. In particular,if donee sells securities for consideration within five years from receipt thereof as gift,donee is required to pay relevant imposta sostitutiva on capital gains as if gift had nevertaken place.

INCOME TAX:

Personal income tax (IRE—formerly IRPEF) is imposed on net income produced inItaly or elsewhere deriving from any sources accruing to any person even if residingoutside Italy (nonresidents, however, are taxed only on income produced in Italy orrelated to property located in Italy).

Certain incomes such as those of minor children are deemed to be taxpayer’s and areadded to latter’s income. Taxable income is divided, depending on source, as follows:from immovable property, capital, employment, business enterprises and other sources.

Aggregate taxable income results from sum of net incomes pertaining to each category,after deduction of expenses incurred for production thereof as well as of certain taxes,social security contributions, and few types of other expenses. 19% of, inter alia, amountspaid as premiums on life, accident insurances, and as non-compulsory social securitycontributions, not to exceed 2,500,000 lire (€1,291.14), interest on mortgage loansgranted for purchase of main living house, not to exceed 7,000,000 lire (€3,615.19),medical and funeral expenses, school and university fees (subject to ceilings) may bededucted from tax due.

In order to guarantee progressive rate of taxation, amount equal to €3,000 must bededucted from taxable income net of deductible burdens, pursuant to D.P.R. No. 917 ofDec. 23, 1986 as amended.

Relief is granted for support of wife, children and close relatives, by deducting fromtax due fixed amount for each person. Credits are available, to some extent, for taxes paidin foreign country where income is produced. Few types of occasional income (such asproceeds from sale of going business, value of new shares gratuitously assigned toshareholders, termination of employment allowance), are in most cases taxed separatelyat average rate applicable to taxpayer for two preceding years. Current tax rates areshown in following table:

From 2005Income (EURO thousands) RateUp to 26 23%From 26 to 33.5 33%From 33.5 to 100 39%Over 100 39% + 4%

(contribution ofsolidarity)

Companies Income Tax (IRES) from Jan. 1, 2004 Companies Income Tax (IRES) hasreplaced Legal Entities Income Tax (IRPEG).

IRES is imposed on net aggregate income accruing in Italy or abroad, to corporationsand other private or public legal entities, having their registered or administrative office

PROPERTY MARTINDALE-HUBBELL LAW DIGEST - 2007



INCOME TAX . . . continuedor main business in Italy, and on net aggregate income accruing in Italy to companiesand bodies, whether legal persons or otherwise, not having their registered or admin-istrative office in Italy.

Taxable income is profit resulting from profit and loss account, to be prepared ac-cording to rules established by tax laws. Expenses and costs necessary for production ofincome are deductible.

Five year carry-forward is permitted, in certain cases, for losses incurred. Credits areavailable to some extent for taxes paid in foreign country where income is produced.

IRES is currently levied at rate of 33%.Main amendments introduced through IRES are following: (1) elimination of Tax

Credits on distributed dividends; (2) detaxation up to 95% of dividends received bypersons subject to IRES, in order to compensate above elimination; (3) introduction ofoption for (i) Joint Stock Companies (Società di Capitali) wholly and solely participatedby other Joint Stock Companies and (ii) Limited Liability Companies (Società a Re-sponsabilità Limitata) whose profits do not exceed certain limit and being wholly andsolely participated by individuals in number no greater than ten or 20 in case of Co-operative Companies (Società Cooperative), to decide for taxation on Shareholders orQuota Holders, as case may be (so called Taxation for Transparency); (4) exemption fromtaxation of capital gains deriving from transfers of participations in certain companies orentities (so called participation exemption); (5) introduction of faculty for companies’group to opt for taxation on basis of consolidated budget (National or Worldwide); and(6) new regime of deductibility of interest payable (interessi passivi).

Financial Law No. 662 of Dec. 23, 1996 and Law Decree No. 223 of July 4, 2006amended Art. 30 of Law No. 724 of Dec. 23, 1994 attributing presumed income to allcompanies (which are considered as dormant companies or “società di comodo”), pro-vided that company’s proceeds are less than aggregate amount resulting from applicationof following percentages: (i) 2% of shares or quotas to some specific categories of entities(Art. 85 [previously Art. 53] D.P.R. No. 917 of Dec. 23, 1986 as am’d); (ii) 6% to valueof real estate assets; and (iii) 15% to value of other assets. For such companies, IRESshall be levied on presumed income equal to not less than amount resulting fromapplication of following percentages: (i) 1.50% in relation to value of shares or quotasto some specific categories of entities; (ii) 4.75% in relation to value of immovableassets; and (iii) 12% in relation to value of other assets.

To override such presumption company is entitled to provide tax authorities withevidence that, owing to extraordinary and objective circumstances, actual income has infact been lower.

Dual Income Tax (which was introduced by Legislative Decree No. 466 of Dec. 18,1997) has been repealed by Legislative Decree No. 344 with effect from Jan. 1, 2004.

Regional Impost on Production Activities (IRAP) was introduced by LegislativeDecree No. 446 of Dec. 15, 1997 (as am’d) in lieu of several taxes like, inter alia, localincome tax (ILOR), government tax for determination of V.A.T. code number, impost onnet worth of enterprises and tax on National Health Service. IRAP is payable, on netproduction value, by persons who usually produce or exchange goods or render services.General rate for IRAP is equal to 4.25%. Regions can vary tax rate within range of 1%,graduating rate according to activity and category of taxpayers. Different rates areapplicable to (i) entities operating in farming sector for which rate is currently equal to3.75% and (ii) banks, financial companies and insurance companies for which rateapplicable is currently equal to 4.25%.

Proceeding before European Court of Justice is currently pending on alleged illegiti-macy of IRAP vis à vis provisions of VI European Directive on VAT, which prohibitsMember States from imposing taxes on volume of business activity. It is likely thatEuropean Court of Justice will resolve that imposition of IRAP violates such directiveand therefore Central Government will be required to abolish or amend current IRAPlegislation.

Taxation of Nonprofit Entities.—Legislative Decree No. 460 of Dec. 4, 1997 (asam’d) reorganized in general tax principles for nonprofit entities and introduced, fortaxation purposes, new category of “ONLUS” (nonprofit organizations of social rel-evance). ONLUS must be registered in special list held by Ministry of Finance andbenefits from several deductions and exemptions both from direct and indirect taxes.

Assessment of Direct Taxes.—Annual return shall be filed each year by taxpayereither between May 1 and July 31 (or, if filed by way of direct computer transmission,Oct. 31) of subsequent year or such later date that Ministry of Economy and Finance mayfix from time to time, or one month after deadline for approval of balance sheet (whentaxpayer is taxed on balance sheet basis), setting forth annual income and other infor-mation on taxpayer’s standard of living. Also foreign corporations not having office orpermanent establishment in Italy must file their tax return in respect of income producedin Italy or related to property located in Italy, indicating name and address of repre-sentative.

Tax returns are subject to review by tax authorities, who have broadest powers ofinvestigation (also with banks, under certain circumstances) and may, whenever appro-priate, assess actual income. Authorities’ right to assess income taxes is normally pre-scribed if notice of assessment is not served by Dec. 31, of fourth year following yearin which relevant return was submitted (period is five years in case of omitted return).Omission to file tax return or to report all income is punished by fines and, in someinstances by penal sanctions. Major reform of administrative fines for breach of taxprovisions has been enacted through Legislative Decree Nos. 471, 472 and 473 of Dec.18, 1997 (as am’d and supplemented).

Taxation by Way of Withholding.—Withholding of taxes is provided, with fewexceptions, in respect of income deriving from salaries and wages, pensions, compen-sations for services and brokerages, professional fees, interest and income from capital,dividends and prizes, interest in respect of loans, bonds and similar securities.

Matter has been recently restructured by Legislative Decree No. 461 of Nov. 21, 1997(as am’d). Withholding on dividends is, as rule, applicable at rate of 12.50% on accountof tax eventually due, or 27% as final tax only when recipient is not resident or is legalentity not subject to IRES tax. Foreign recipient is under special circumstances entitledto partial refund of taxes on dividends paid in his country. Withholding on interest inrespect of bonds is, as a rule, applicable at rate of 12.50%, or 27% for bonds having

maturity of less than 18 months. Pursuant to Legislative Decree No. 239 of Apr. 1, 1996(as am’d) payments of interest in respect of bonds issued by banks, listed companies andcertain entities specifically indicated therein, are subject to “imposta sostitutiva” appli-cable at rate of 12.50% unless payments are made: (1) to Italian legal entity (with certainexceptions); or (2) Italian resident collective investment funds, Italian resident pensionfunds referred to in Legislative Decree No. 124 of Apr. 21, 1993 and certain Italianresident real estate investment funds as provided for by Law Decree No. 351 of Sept.25, 2001 converted into law by Law No. 410 of Nov. 23, 2001 (“Law Decree No. 351”);or (3) to nonresident legal entities and nonresident individuals (provided, inter alia, thatthey are resident in countries, which recognize Italian financial administration’s right toadequate exchange of information in order to verify compliance with relevant prereq-uisites, and that certain procedures set forth by law are followed). Such provision hasbeen amended by Law Decree No. 351 and by Law Decree No. 269 of Sept. 30, 2003converted into Law, with amendments, by Law No. 326 of Nov. 24, 2003, pursuant towhich nonresident Noteholders are no longer required not to be resident in tax havencountries in order to benefit of exemption from imposta sostitutiva.

Tax on Capital Gains.—Major reform of fiscal regime of capital gains and otherincome from capital, has been enacted through Legislative Decree No. 461 of Nov. 21,1997 as amended by Legislative Decree No. 201 of June 16, 1998.

Aim of such reform is to distinguish various forms of income deriving from capitaland to levy appropriate taxes thereon on basis of three different procedures whichtaxpayer could choose.

As general rule, capital gains received on sale of qualified participation are subject toordinary taxes on income while capital gains deriving from sale of non-qualified par-ticipation are subject to “imposta sostitutiva” at rate of 12.5%.

Gains received from sale of non-qualified participations by nonresidents are exemptfrom taxation, provided that recipient is resident in country with which Italy has enteredinto double taxation treaty containing provision allowing adequate exchange of infor-mation with Italy.

Starting from Jan. 1, 2006, three different procedures can be followed in respect oftaxation of capital gains received from sale only certain of non-qualified participations:(1) persons having appointed financial intermediaries for management of assets includingcash not relating to their enterprise may opt, giving written notice thereof to managingentity, for application by intermediaries of “imposta sostitutiva” (which shall be appliedin lieu of any income tax) on accrued results (“Risparmio Gestito” regime); (2) personshaving deposited securities, quotas or certificates in custody or under management ofcertain financial intermediaries may opt giving written notice thereof to financial inter-mediary, for application of “imposta sostitutiva” on each of capital gains from time totime accrued (“Risparmio Amministrato” regime); (3) failing one of above options, taxreturn shall be filed by taxpayer identifying capital gains and capital losses obtainedduring each fiscal year (which may be set-off between each other) and “imposta sosti-tutiva” shall be paid concurrently with filing of such tax return (“Tax Declaration”regime).

Tax Declaration regime is mandatory with regard to taxation of capital gains receivedfrom sale of other non-qualified participations (such as securities of companies whoseshares are not admitted to trading in regulated markets).

Italy has implemented EU directive No. 2003/48/EC regarding taxation of savingsincome through Legislative Decree No. 84 of Apr. 18, 2005 (“Decree No. 84”). UnderDecree No. 84, subject to number of important conditions being met, in case of interestpaid starting from July 1, 2005 (including case of interest accrued on Notes at time oftheir disposal) to individuals which qualify as beneficial owners of interest payment andare resident for tax purposes in another Member State, Italian paying agents (i.e., banks,società di intermediazione mobiliare [SIMs], fiduciary companies, società di gestione delrisparmio [SGRs] resident for tax purposes in Italy, permanent establishments in Italy ofnonresident persons and any other economic operator resident for tax purposes in Italypaying interest for professional or commercial reasons) shall report to Italian tax au-thorities details of relevant payments and personal information on individual beneficialowner. Such information is transmitted by Italian tax authorities to competent foreign taxauthorities of State of residence of beneficial owner. In certain circumstances samereporting requirements must be complied in respect of interest paid to entity establishedin another Member State, other than legal persons (with exception of certain Finnish andSwedish entities), entities whose profits are taxed under general arrangements for busi-ness taxation and, in certain circumstances, UCITS recognised in accordance with Di-rective 85/611/EC as amended.

INHERITANCE TAX:

Inheritance tax has been repealed by Law No. 383.

LOCAL GOVERNMENT TAXES:

Pursuant to art. 119 of Constitution of the Republic of Italy as am’d by Law No. 3of Oct. 18, 2001 (“Constitutional Law No. 3”), Regions, Municipalities, Provinces andMetropolitan Cities enjoy financial autonomy and have powers to apply their own taxesin compliance with Italian Constitution and according to principles of coordination ofState Finance and tax system and benefit from portion of State taxes referable to theirterritory. Legislative Decree No. 446 of Dec. 15, 1997, as amended and supplemented,introduced substantial amendments to taxation system by decentralizing taxation fromState to Regions and by providing them with sufficient financial autonomy. Such reformalso introduced Regional Impost on Production Activities (IRAP) and reorganized otherlocal government taxes.

Pursuant to Legislative Decree No. 446 of Dec. 15, 1997, provinces and municipalitieshave power to rule their own revenues, including tax revenues, save for determinationof taxable events, of taxpayers and of maximum rate of each tax, to be determinedexclusively by State laws.

Fiscal federalism was implemented through enactment of Law No. 56 of Feb. 18, 2000as amended which introduced new local taxes in compensation of reduction of transfersfrom State entitling, inter alia, regions to percentage of V.A.T.

ITALY LAW DIGEST TAXATION



MOTOR VEHICLE TAXES:Deeds of sale or deeds of statement in respect of motor vehicles are subject to local

taxes payable upon recording relevant deed in Public Register of Motor Vehicles.Property tax is due on cars depending on power of engine and irrespective of circu-

lation of vehicle. Such tax is currently payable at annual rate of €2.58 per each Kilowattor €1.90 per each hp (save for certain regions where annual rate is different).

Different rates and modalities apply to other vehicles and additional taxation is pro-vided for diesel engines not complying with environmental legislation.

PROPERTY TAXES:Income Tax.—All real property is subject to income tax unless exempt by law.Value of land used for farming purposes is, for purposes of inclusion of relevant

income in annual tax returns, determined on basis of assessment attributed in real estaterecords to each property revalued on basis of parameters approved from time to time byMinistry of Economy and Finance. Income derived from buildings is, for purposes ofinclusion of relevant income in annual tax returns, determined on basis of assessmentattributed in real estate records to each property revalued on basis of parameters approvedfrom time to time by Ministry of Economy and Finance or, if leased, on basis of rentreceived by landlord. Income deriving from buildings exclusively destined to exercise ofcult to extent that they are not leased and real estate for which refurbishment licenseshave been obtained for period of refurbishment works and to extent that real estateproperty is not used during such period is not taxable.

Tax on Real Property Imposed by Municipalities (ICI).—This tax affects immov-able property located in State, including property which is instrumental to exercise ofenterprise or which is object of business activity of enterprise. ICI is due by owner, orholder of usufruct, use or habitation right, even if nonresident. It is fixed and imposedby Municipalities where real property is located and is levied on basis of value of realproperty as resulting from cadastral registers. Rates vary from 0.4% to 0.7%. Amountspayable for ICI are not deductible from taxpayer’s income for purposes of determiningtaxable base for IRE and IRES.

Tax on Purchases.—Registration tax together with real estate registration taxes or,alternatively, V.A.T. is payable at time of purchase of real estate dependent upon fact thatseller is private individual or company. Registration tax payable by purchaser on transferof (i) building or land not having farming destination is equal to 8% and (ii) land withfarming destination 15%. Reduced registration taxes are applicable in event of purchaseof first and sole property to be used for living purposes. For V.A.T. see topic Value AddedTax.

STAMP DUTIES AND REGISTRATION TAXES:Stamp duties are imposed pursuant to D.P.R. No. 642 of Oct. 26, 1972 (as am’d) and

are due on all documents, deeds and instruments listed in tariff annexed thereto. Stampduties are payable, at rate specified in said tariff, upon execution or in case of use of anysuch document, deed or instrument, depending on type of document.

Save for specific cases where stamp duties can be paid virtually or by means of electricstamping machines, normally stamp duties are payable either drafting document onstamped paper having specific margins and given number of lines or affixing stamps onordinary paper on which document, deed or instrument is drafted (in any case complyingwith prescribed number of lines). Bills of exchange and promissory notes are drafted onspecial stamped paper and special stamps must be used thereon.

Normally stamp taxes are payable on document at fixed amount but in some cases aredue, at fixed rate, in proportion of value indicated in document, deed or instrument (e.g.,bills of exchange and promissory notes).

It is general principle of applicable stamp legislation that any document relating totransactions subject to V.A.T. shall be, in any case, exempt from stamp duties.

Contribution is payable una tantum on judicial acts (contributo unificato) at rateproportional with value of case from minimum of €30 up to maximum of €1,110.

Registration taxes apply to all deeds and contracts made in Italy having civil, com-mercial and judicial nature, to verbal agreements of lease of real estate located in Stateand of transfers or lease of business located in State, to incorporations or transfers offoreign companies in State and capital increases thereof, as well as to deeds made abroad,concerning transfer of immovable property, real estate or other rights and leases of realestate located in State. This tax may be proportional or in fixed amount according tonature of act involved. If act refers to goods or services already subject to V.A.T., thistax will be applied in fixed amount.

Proportional rates, which are based on “value” (which in many instances is subject toassessment by tax authorities) of contract, vary from minimum of 0.50% to maximumof 15% according to type of contract.

STAMP TAX:See topic Stamp Duties and Registration Taxes.

TAX INCENTIVES:New incentives are adopted, on continuous basis, in accordance with social needs and

political trends. In general, special provisions are contained in various laws providing fortax exemptions or reductions or other incentives for nonprofit entities, for companieshiring new personnel, for disabled people and for building industry. In addition, otherlaws provide adequate tax incentives for specific transactions like, for instance, transferof businesses or securitization of receivables.

TREATIES AND AGREEMENTS:Avoidance of Double Taxation on Income and Property.—Such treaties, bilateral by

their very nature, are structured on basis of 1963 OECD draft model, as revised in 1977,and tend, therefore, to be similar in broad terms albeit different in detail. Treaties foravoidance of double taxation are currently in force between Italy and: Albania, Algeria,Argentina, Australia, Austria, Bangladesh, Belgium, Byelorussia (former treaty withUSSR to be applied), Brazil, Bulgaria, Canada, China (People’s Republic of), Croatia(former treaty with Yugoslavia to be applied), Cyprus, Czech Republic, Denmark, Egypt,

Ecuador, Estonia, Finland, France, Germany, Greece, Hungary, India, Indonesia, Ireland,Israel, Ivory Coast, Japan, Kazakhstan, Kuwait, Lithuania, Luxembourg, Macedonia,Malaysia, Malta, Mauritius, Mexico, Moldova (former treaty with USSR to be applied),Morocco, Netherlands, New Zealand, Norway, Pakistan, Philippines, Poland, Portugal,Romania, Russia (former treaty with USSR to be applied), Russian Federation, Sin-gapore, Slovakia (Republic of), Slovenia (former treaty with Yugoslavia to be applied),South Africa, South Korea, Spain, Sri Lanka, Sweden, Switzerland, Tanzania, Thailand,Trinidad and Tobago, Tunisia, Turkey, Ukraine (former treaty with USSR to be applied),U.A.E., U.K., U.S.A., Uzbekistan (former treaty with USSR to be applied), Venezuela,Vietnam, Zambia. Some States previously included in above list have been eliminatedby D.M. Dec. 14, 2000.

Italy is also signatory of European Convention on double taxation signed in Brusselson July 23, 1990.

Treaties between U.S. and Italy cover income (Law No. 763 of Dec. 11, 1985) andinheritance (Law No. 943 of July 19, 1956) taxes. By Treaty, individual, corporation orother entity of one of contracting States shall not be subject to taxation by othercontracting State in respect of its industrial and commercial profits unless it is engagedin trade or business in such other State through permanent establishment situated therein.Inter alia Treaty broadly provides, subject to certain qualifications, that royalties, accruedfrom sources within one contracting State to resident or corporation or other entity ofother contracting State are exempt from taxation in former State. Income from realproperty is taxable in State where such property is situated. Compensation for personalservices including salaries (other than governmental salaries) and professional fees are,subject to certain qualifications, taxable in State where such services are rendered.

Avoidance of Double Taxation on Inheritance Tax.—Bilateral treaties are currentlyin force between Italy and: Denmark, France, Greece, Israel, Sweden, U.K. and U.S.A.

VALUE ADDED TAX:

This tax has replaced turnover tax (I.G.E.) as of Jan. 1, 1973. Tax is levied on proceedsreceived by business firms, corporations and professional persons for goods sold orservices rendered within Italy and for goods imported from abroad. Entrepreneur orprofessional person is allowed to deduct added value tax charged to him by his suppliersfrom V.A.T., levied on amounts he receives from his clients; therefore, burden of this taxwill ultimately rest upon final buyer or client. Ordinary rate of V.A.T. is 20% reducedto 10% or 4% for most food, agricultural products, houses in certain circumstances andother essential items. V.A.T. is not applicable to transactions of financial nature, loansmade by banks, change of foreign currency, sales of shares and securities, sales ofbusiness, leases of immovable property, city transports, hospital services, schooling whenrecognized by State etc.

TRANSPORTATIONAIR LAW:

Ownership, registration and operation of aircraft is regulated by Second Part of theCode of Navigation (see topic Shipping) which, subject to certain amendments, has beenin force since 1942. Aircraft is classified as ‘‘registered movables’’, i.e. as personalproperty that, like vessels and motor vehicles, is subject to certain publicity and regis-tration requirements.

Ownership of aircraft is evidenced by certificate of matriculation issued by Ministerof Transport. Title to and other property rights in aircraft must be recorded for publicnotice purposes in register maintained by Ministry of Transport and known as RegistroAeronautico Nazionale (National Aircraft Register). Hence, any transaction capable ofconstituting, extinguishing or transferring title to, or any other property or security rightsin, Italian aircraft can be asserted against third parties only if properly recorded inNational Aircraft Register.

Save as stated under subhead Financing/Leasing infra, aircraft can be registered inNational Aircraft Register only if it is owned by Italian State, or Italian public entity, orby Italian nationals or by company incorporated and having its main office in Italy. Forregistration in name of company, two conditions are to be met: (1) that no less thantwo-thirds of share capital of company is held by Italian nationals; and (2) that two-thirdsof directors (including managing director) and general manager are Italian nationals.

Italy is party to most international conventions on uniform air law among which are:Warsaw convention of 1929 on carriage by air (and related Hague Protocol of 1955);Chicago convention of 1944 on international air navigation; Geneva convention of 1948on recognition of rights in aircraft; Rome convention of 1952 on surface damages byaircraft to third parties; Tokyo convention of 1963 on infringements and other actscommitted on board aircraft. General principles on execution of air traffic agreementswith third countries were enacted by Decree of Ministry of Transport of July 7, 2000.

Any agreement submitted to National Aircraft Register in connection with initialrecording or transfer of title to or any other property or security right in aircraft must,if written in foreign language, be accompanied by sworn Italian translation.

Airworthiness/Operations.—By Legislative Decree No. 250 of July 25, 1997 asamended (“Legislative Decree No. 250”) Ente Nazionale per l’Aviazione Civile (NationalAgency for Civil Aviation) was established. Such agency is to perform all functions andduties formerly carried out by Registro Aeronautico Italiano (Italian Aircraft Register)and Ente Nazionale per la Gente dell’Aria, which have therefore both been superceded.Accordingly Ente Nazionale per l’Aviazione Civile, which is subject to Ministry ofTransport control and supervision, is charged with, inter alia, verifying fitness of aircraftto fly and to be used for particular type of service. National Agency for Civil Aviationissues Certificate of Airworthiness, which is to be kept with aircraft at all times, andcarries out periodic checks of aircraft. Certificate of Airworthiness is to be issued alsoif aircraft is to be exported.

Legislative Decree No. 250 also given to Direzione Generale dell’Aviazione Civile(General Department for Civil Aviation) new denomination of Dipartimentodell’Aviazione Civile (Civil Aviation Department) who is to take over all functions offormer while waiting for EU Directive No. 94/56/CE to be implemented. Accordinglyabove department is also charged with performance of investigations in connection with

TAXATION MARTINDALE-HUBBELL LAW DIGEST - 2007



AIR LAW . . . continuedair accidents. Legislative Decree No. 66 of Feb. 25, 1999 established Agenzia Nazionaleper la Sicurezza del Volo (National Agency for Safety on Flight) charged, among otherfunctions, with inquiries on accidents for civil aircraft.

Operation of regular airlines on preestablished routes is subject to license granted byDecree of the President of the Republic. As a rule, license may be accorded only topersons or companies possessing prerequisites to own aircraft registrable in NationalAircraft Register.

All crew members must obtain licence for performance of their individual services andmust be chosen from personnel registered in lists kept by above-mentioned NationalAgency for Civil Aviation. However, D.P.R. No. 560, dated Dec. 30, 1992 as am’d andsupplemented (implementing EC Directive No. 91/670) provides for mutual recognitionof professional licences granted within EU territory. Accordingly, European citizens whohave been granted licence in their home countries may apply to Italian Ministry ofTransport for its confirmation.

Mortgages/Liens.—Mortgages on aircraft are established by agreement and must berecorded in National Aircraft Register. To obtain such recording agreement must be inform of either notarial instrument (‘‘atto pubblico’’) or notarised private writing. Notationof mortgage must be made on aircraft’s matriculation certificate.

Mortgage can be taken as security for any financial obligation of owner of aircraft orof any third party, secured by owner.

In addition to preventing mortgage from being asserted against third parties, failure torecord in National Aircraft Register affects very validity of security as between mortgagorand mortgagee.

Unless mortgagee’s rights are satisfied or mortgagor provides alternative security asdirected by court of competent jurisdiction, aircraft against which mortgage has beenrecorded cannot be cancelled from National Aircraft Register.

Financing/Leasing.—(a) Subject to nationality requirements referred to under headingOwnership/Registration, purchase of aircraft by Italian residents may be secured bymortgage on aircraft.

There are no significant foreign exchange restrictions in Italian system, so that noprevious consent is required with respect to external borrowings or deferred sales ar-rangements.

(b) As mentioned, it is still basic rule, under Art. 756 of Code of Navigation asamended lastly by Legislative Decree No. 96 of May 9, 2005, that registration of aircraftin National Aircraft Register can only be made in name of owner of all or major partsof aircraft and that owner must be either Italian or EU national or juristic person meetingcertain nationality requirements.

However, pursuant to Art. 756, licensed airlines may be authorised to register aircraftin their names in National Aircraft Register when they have exclusive and effectiveavailability of aircraft, even though not being their owner.

In this case both National Aircraft Register and matriculation certificate must, inaddition to usual information, contain reference to legal basis (other than ownership) onwhich registration has been effected. Thus, since lessee operating licensed airline has fullavailability of leased aircraft, latter can be registered in National Aircraft Register. Iflessee is not licensed regular airline operator he can, upon appropriate application, obtainfrom Ministry of Transport authorisation to use aircraft under lease agreement notexceeding term of three years and providing for lessee’s right to purchase aircraft atexpiration of lease. When lessor is company having its main office outside Italy autho-risation is granted for maximum term of 12 months, and may be renewed once for equalperiod.

AUTOMOBILES:See topic Motor Vehicles.

MOTOR VEHICLES:There exists a presumption of guilt upon the drivers of motor vehicles as a result of

which they are liable for all damages caused by the operation thereof, unless they canprove having done everything possible to avoid causing the damage. Where more thanone vehicle is involved in accident, presumption of liability is shared equally among thedrivers thereof. The owner of a motor vehicle is liable jointly and severally with thedriver unless he can prove that the vehicle was being operated against his will. (C. C.2054).

Compulsory third-party liability insurance is governed by Law No. 990 of Dec. 24,1969 as amended, which (a) institutes obligation of insurance for third-party liabilityupon all owners or users of licenced vehicles, (b) in case of accident grants damagedparty direct action against insurer.

Highway Code.—New highway code has been adopted by Legislative Decree No. 285of Apr. 30, 1992 (as am’d) implemented by D.P.R. No. 495 of Dec. 16, 1992. Newprovisions on registration of vehicles have been adopted by Decrees of Ministry ofTransport of Feb. 10, 2000 and Feb. 14, 2000.

SHIPPING:

This matter is governed by Code of Navigation, enacted by Royal Decree No. 327,dated Mar. 30, 1942 as amended. Specific matters are governed by specific statutes,among which, fisheries, special credit to shipping enterprises, and certain aspects of crewemployment contracts and connected topics. Law Decree No. 457 of Dec. 30, 1997,converted—with amendments—into Law No. 30 of Feb. 27, 1998 as am’d (“D.L. No.457”) instituted ‘‘Registro Internazionale’’ (International Register) whereby ships exclu-sively destined to international trade are to be registered, pursuant to specific authori-zation to be given by Minister of Transport and Navigation.

Ships may fly Italian flag, provided that: (a) they belong, at least for two-thirds, toItalian or EU nationals, juristic persons or other entities; (b) they are newly built, orregistered in non-EU register, and belong to non-EU nationals, juristic persons or entitieswhich are in direct charge or operation of ship by means of permanent organization basedwithin Italian territory and run by Italian or EU national, or juristic person, that is to beheld liable for operation of ship. (Art. 143 C.N., as am’d by D.L. No. 457).

Italian ships must be recorded in special registers, kept by appropriate administrativeauthorities. (art. 146, C. N.). Whenever nationality requirements no longer exist, shipmust change its flag (art. 156-162, C. N.) and be stricken off register (art. 163, C. N.).Further provisions are given as to seaworthiness of ship (art. 164-168, C. N.) anddocuments of navigation (art. 169-178, C. N.). Master of a ship may act as registrar ofbirths, marriages and deaths taking place on board (art. 203, C. N.), subject to particularconditions and regulations. Art. 318 C.N., as amended by D.L. No. 457, provides thatcrew of Italian ships is to be composed of Italian or EU citizens in its entirety.

Title to property of a ship may be acquired by construction (art. 232, C. N.) or contract;more co-proprietors may organize a peculiar kind of unlimited partnership (società diarmamento fra i comproprietari) (art. 278-286, C. N.). Specific provisions are laid downin Code for contracts of lease of a ship (art. 376-383, C. N.), affreightment (art. 384-395,C. N.) carriage of persons (art. 396-418, C. N.) and carriage of goods (art. 419-468, C.N.), which must be all in writing. Bills of lading (art. 460, C. N.) are issued either forcarriages in a general ship, or under charter-party.

Code further governs general average (art. 469-481, C. N.) collision (art. 482-488, C.N.), and salvage (art. 489-513, C. N.); law of marine insurance is rather different fromgeneral provisions on insurance of Civil Code (art. 514-547, C. N.). Ships may bemortgaged (art. 565-577, C. N.), upon filing of deed of mortgages in register where shipis recorded (art. 569, C. N.); liens are granted for specific credits upon ship, freight (art.552-560, C. N.), and cargo (art. 561-564, C. N.).

Pleasure boats are subject to compulsory insurance similar to that provided for vehicles(see topic Motor Vehicles). Law No. 50, dated Feb. 11th, 1971 (as am’d), has introduceda simplified administrative regime concerning construction, registration and operation ofleisure boats. Air navigation is governed by second part of Code. (art. 687-1037, C. N.).(See topic Air Law.)

Italy is party to most international conventions on uniform shipping law, including,inter alia: Brussels conventions of 1910 on salvage and collision; Protocols signed inBrussels on Feb. 23, 1968 and on Dec. 21, 1979 to Brussels Convention on bills of ladingof Aug. 25, 1924; Brussels convention of 1926 on maritime liens and mortgages; Brusselsconvention of 1952 relating to arrest of sea-going ships; London convention of 1954against pollution of hydrocarbons at sea; Geneva convention of 1958 on high seas;London convention of Apr. 9, 1965 on facilities for the international maritime traffic;Brussels convention of 1969 on civil liability for oil pollution damage (including 1976London Protocol); Brussels convention of 1971 on the establishment of an internationalfund for compensation for oil pollution damage; L.D.C. Dumping Convention of 1972on the prevention of the sea pollution caused by dumping; London Convention of 1973for the prevention of pollution from ships, (including 1978 Protocol); London conventionof 1974 on safeguard of human life at sea (including 1978 Protocol); London conventionof 1978 on drilling, qualification and guarding standards for seamen; Montego Bayconvention of 1982 on the law of the sea; London convention of 1989 on salvage.

TREATIES AND CONVENTIONSTREATIES:

Republic of Italy is party to (i) Treaty establishing the European Economic Community(EC), Rome, Mar. 25, 1957, (ii) Treaty establishing the European Coal and Steel Com-munity, Paris, Apr. 18, 1951 (as amended by Luxembourg Treaty of Oct. 27, 1956), (iii)Treaty establishing the European Atomic Energy Community (EURATOM), Rome, Mar.25, 1957, (iv) European [unique] act, Luxembourg, Feb. 17, 1986, (v) Treaty on theEuropean Union, Maastricht, Feb. 7, 1992, (vi) Agreement and Protocol of adhesion tothe Agreement of Schengen of June 14, 1985, Paris, Nov. 27, 1990.

Competent bodies within above mentioned organizations have been enacting extensivenumber of rules affecting many fields of Italian legislation, since they took office.

Italy is also party to many treaties and conventions, mainly multilateral, selected listof which is reported below. Bilateral conventions are listed as to avoidance of doubletaxation on income and property subject matter.

International law aspects of treaties are regulated by Convention on law of treaties,signed in Vienna, on May 23, 1969, ratified in Italy by Law No. 112 of Feb. 22, 1974.Republic of Italy is not party to Convention on the law of treaties between States andInternational Organization or between International Organizations, signed in Vienna,Aug. 23, 1978.

General Agreements: Convention for Peaceful Settlement of Disputes, The Hague,July 29, 1899; Convention establishing the International Labor Organization (ILO),Versailles, June 28, 1919 (as repeatedly amended in Paris, Nov. 7, 1945, Montreal, Oct.9, 1946 and Geneva, June 25, 1953); Convention establishing the International Institutefor the Unification of Private Law (UNIDROIT), Rome, Mar. 15, 1940; Charter of UnitedNations (U.N.) and statute of the International Court of Justice, San Francisco, June 26,1945; Constitution of the U.N. Educational, Scientific and Cultural Organization—UNESCO, London, Nov. 16, 1945; Agreement creating the International Monetary Fund(IMF), Washington, Dec. 27, 1945; Agreement creating the International Bank for Re-construction and Development (IBRD), Washington, Dec. 27, 1945; Convention onimmunities of U.N., New York, Feb. 13, 1946; Constitution of World Health Organization(WHO), New York, July 22, 1946; Convention creating an International Maritime Or-ganization (IMO), Geneva, Mar. 6, 1948; Convention on prevention and punishment ofthe crime of genocide, New York, Dec. 8, 1948; North Atlantic Treaty, Washington, Apr.4, 1949; Statute of the Council of Europe, London, May 5, 1949; European Conventionfor protection of human rights and fundamental freedoms, Rome, Nov. 4, 1950 (withProtocol, Paris, Mar. 20, 1952); European convention on establishment, Paris, Dec. 13,1955; Statute of the International Atomic Energy Agency, New York, Oct. 26, 1956;European Convention for the Peaceful Settlement of Disputes, Strasbourg, Apr. 29, 1957;Conventions on high seas and territorial seas, Geneva, Apr. 29, 1958; Agreement es-tablishing the Inter-American Development Bank, Washington, Apr. 8, 1959; Articles ofagreement of the International Development Association (IDA), Washington, Jan. 26,1960; Convention concerning the organization for economic co-operation and develop-ment (OECD), Paris, Dec. 14, 1960; Convention on diplomatic relations, Vienna, Apr.

ITALY LAW DIGEST TREATIES AND CONVENTIONS



TREATIES . . . continued18, 1961; European Social Charter, Turin, Oct, 18, 1961; Convention on consular re-lations, Vienna, Apr. 24, 1963; Constitution of the Universal Postal Union (UPU), Vi-enna, July 10, 1964 (as supplemented by protocols Tokyo, Nov. 14, 1969 and Losanna,July 5, 1974); International Agreement concerning economic, social and cultural rights,New York, Dec. 16, 1966; International convention of telecommunications, Malaga, Oct.25, 1973; Convention establishing the European Space Agency, Paris, May 30, 1975;Convention for protection of people against automatic treatment of personal data, Stras-bourg, Jan. 28, 1981; Convention establishing the European Telecommunication SatelliteOrganization (EUTELSAT), Paris, July 15, 1982; U.N. Convention on law of the sea,Montego Bay, Dec. 10, 1982; Convention establishing the Multilateral Investment Guar-antee Agency (MIGA), Granada, Oct. 11, 1985; Unidroit Conventions on internationalfactoring and on international financial leasing, Ottawa, May 28, 1988; Agreementestablishing the European Bank for reconstruction and development (EBRD), Paris, May29, 1990; European Social Charter, Strasbourg, May 3, 1996; Convention of the Euro-pean Council on the protection of the human rights, Oviedo, Apr. 4, 1997; Internationalconvention on repression of terrorist attacks, New York, Dec. 15, 1997; Agreementenacting the International Criminal Court, Rome, July 17, 1998; International conventionon repression of financial support to terrorism, New York, Dec. 9, 1999; Treaty of NiceAmending the Treaty of the European Union, Feb. 26, 2001; treaty to adopt EuropeanConstitution, Rome, Oct. 29, 2004.

Conventions Concerning Bills of Exchange, Promissory Notes and Checks: Con-vention concerning bills of exchange and promissory notes, Geneva, June 7, 1930 (withprotocol A); Convention on stamp duty on bills of exchange and promissory notes,Geneva, June 7, 1930 (with protocol C); Convention relating to checks, Geneva, Mar.19, 1931; Convention on stamp duty on checks, Geneva, Mar. 19, 1931.

Conventions Concerning Conflicts of Law and Jurisdiction: International Conven-tion on conflict of laws on marriage, divorce and separation, The Hague, June 12, 1902(and following Protocol, The Hague, Nov. 28, 1923); Convention on conflicts of lawconcerning bills of exchange and promissory notes, Geneva, June 7, 1930 (with protocolB); Convention on conflicts of law concerning checks, Geneva, Mar. 19, 1931; Con-vention on law applicable to alimony obligations to infants, The Hague, Oct. 24, 1956;Convention on jurisdiction and the law applicable to Protection of Minors, The Hague,Oct. 5, 1961; Convention on jurisdiction and the enforcement of judgments in civil andcommercial matters, Brussels, Sept. 27, 1968 (with Protocol of June 3, 1971 and sub-sequent Conventions of June 3, 1971, Oct. 9, 1978, Oct. 25, 1982, Sept. 16, 1988, May26, 1989); Convention on the law applicable to contractual obligations, Rome, June 19,1980; Convention concerning the law applicable to trusts and their recognition, TheHague, July 1, 1985.

Conventions Concerning Family and Wills: Convention for protection of children,The Hague, June 12, 1902 (and following Protocol, The Hague, Nov. 28, 1923); Con-vention concerning the interdiction and similar protection measures, The Hague, July 17,1905 (and following Protocol, The Hague, Nov. 28, 1923); European convention onadoption of minors, Strasbourg, Apr. 24, 1967; European convention on registration ofwills, Basle, May 16, 1972; Convention on formal requirements of international will,Washington, Oct. 26, 1973; UN-Convention on the Rights of the Child, New York, Nov.20, 1989; Convention for the protection of minors and co-operation for internationaladoption’s matters, The Hague, May 29, 1993; EU-Convention on rights of children,Strasbourg, Jan. 25, 1996; Optional protocols to convention on rights of children, NewYork, Sept. 6, 2000.

Conventions Concerning Intellectual and Industrial Property: Convention for theprotection of industrial property, Paris, Mar. 20, 1883 (as amended and supplemented byfollowing conventions Brussels, Dec. 14, 1900; Washington, June 2, 1911; The Hague,Nov. 6, 1925; London, June 2, 1934; Lisbon, Oct. 31, 1958; Stockholm, Sept. 14, 1967);Convention for the protection of literary and artistic works, Bern, Sept. 9, 1886 (asamended by following conventions Berlin, Nov. 13, 1908; Rome, June 2, 1928; Brussels,June 26, 1948; Stockholm, Sept. 14, 1967; Paris, July 24, 1971); Agreement on sup-pression of false or misleading indication of origin on goods, Madrid, Apr. 14, 1891 (asamended by following conventions Washington, June 2, 1911; The Hague, Nov. 6, 1925;London, June 2, 1934; The Hague, Nov. 28, 1960, Stockholm, July 14, 1967); Agreementon international deposit of industrial designs and models, The Hague, Nov. 6, 1925 (asamended by following conventions London, June 2, 1934; The Hague, Nov. 28, 1960,Stockholm, July 14, 1967); Universal copyright convention, Geneva, Sept. 6, 1952;Convention on international registration of trademarks, Nice, June 15, 1957 (as subse-quently revised in Geneva, May 13, 1977); Convention on unification of legislation onpatents, Strasbourg, Nov. 27, 1963; Convention establishing the World Intellectual Prop-erty Organization, (as amended in 1979), Stockholm, July 14, 1967; Patent co-operationTreaty, Washington, June 19, 1970 (as amended in Oct. 2, 1979 and Feb. 3, 1984);Agreement concerning the international patent classification, Strasbourg, Mar. 24, 1971;Universal Convention on copyrights, Paris, July 24, 1971; European convention onEuropean patents, Monaco, Oct. 5, 1973; International treaty on trademarks law, Geneva,Oct. 27, 1994.

Conventions Concerning International Co-operation in Legal Matters.—Procedure: International convention on the seizure of aircrafts, Rome, May 29, 1933;

Statute of the Hague Conference on International Private Law, The Hague, Oct. 31, 1951;International convention relating to the seizure of seagoing ships, Brussels, May 10,

1952; International convention on civil jurisdiction in matters of collision, Brussels, May10, 1952; Convention relating to the civil procedure, The Hague, Mar. 1, 1954; Con-vention on the recovery abroad of maintenance, The Hague, June 20, 1956; Europeanconvention on extradition, Paris, Dec. 13, 1957; European convention on the judicialassistance in criminal matters, Strasbourg, Apr. 20, 1959; Convention Abolishing theRequirement of Legalization for Foreign Public Documents, The Hague, Oct. 5, 1961;Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil orCommercial Matters, The Hague, Nov. 15, 1965; European convention on the abolitionof legalization of documents executed by diplomatic agents or consular officers, London,June 7, 1968; European convention on information on foreign law, London, June 7, 1968(with Protocol of Strasbourg Mar. 15, 1978); Convention on Taking of Evidence Abroadin Civil and Commercial Matters, The Hague, Mar. 18, 1970; International conventionto avoid unlawful seizures of aircrafts, The Hague, Dec. 16, 1970; Convention on theexemption of certain acts from legalization, Athens, Sept. 15, 1977; Convention onserving of documents in administrative matters, Strasbourg, Nov. 24, 1977; Conventionfor the abolishment of legalization of act within EU, Brussels, May 25, 1987; Conventionon mutual administrative assistance for fiscal matters between EU members and OCSEmembers, Strasbourg, Jan. 25, 1988; European convention on collection of alimonyobligations, Rome, Nov. 6, 1990; OCSE Convention concerning conciliation and arbi-tration, Stockholm, Dec. 15, 1992; Convention on the service of judicial and extra-judicial documents within EU in civil or commercial matters, Brussels, May 26, 1997(including 1997 protocol).

Recognition and Enforcement: Protocol relating to arbitral clauses in commercialmatters, Geneva, Sept. 24, 1923; International convention for the enforcement of foreignarbitral awards; Geneva, Sept. 26, 1927; Convention on recognition and enforcement ofjudgments concerning alimony obligations towards children, The Hague, Apr. 15, 1958;United Nations Convention on the Recognition and Enforcement of Foreign ArbitralAwards, New York, June 10, 1958; European convention on international commercialarbitration, Geneva, Apr. 21, 1961 (as amended by Agreement, Paris, Dec. 17, 1962);Convention on the settlement of investment disputes between states and nationals of otherstates, Washington, Mar. 18, 1965; Convention on jurisdiction and the enforcement ofjudgments in civil and commercial matters, Brussels, Sept. 27, 1968 (with Protocol ofJune 3, 1971 and subsequent Conventions of June 3, 1971, Oct. 9, 1978, Oct. 25, 1982,Sept. 16, 1988, May 26, 1989); Convention on recognition of divorces and separations,The Hague, June 1, 1970; Convention concerning recognition and enforcement of ali-mony obligations decisions, The Hague, Oct. 2, 1973; Convention on recognition andenforcement of custody decisions on minors and restitution of custody, Luxembourg,May 29, 1980; Convention concerning the law applicable to trusts and their recognition,The Hague, July 1, 1985.

Conventions Concerning International Sale of Goods: United Nations conventionon contracts for the international sale of goods, Vienna, Apr. 11, 1980.

Tax Treaties.—See category Taxation, topic Treaties and Agreements.

Conventions Concerning Transports and Environment: International agreement onsalvage and collision, Brussels, Sept. 23, 1910; Protocols, signed in Brussels on Feb. 23,1968 and on Dec. 21, 1979, to the Convention on bills of lading, Brussels, Aug. 25, 1924(as amended); Convention on maritime liens and mortgages, Brussels, Apr. 10, 1926;International convention of road traffic, Paris, Apr. 24, 1926; Convention on air transport,Warsaw, Oct. 12, 1929 (as supplemented by the Guadalajara Convention of Sept. 18,1961 and amended by Protocol of Montreal Sept. 25, 1975); Agreement on internationalaircrafts services, Chicago, Dec. 7, 1944; International convention relating to the inter-national civil aviation (ICAO), Chicago, Dec. 7, 1944; Convention relating to the in-ternational recognition of rights on aircrafts, Geneva, June 19, 1948; Convention of roadtraffic, Geneva, Sept. 19, 1949; Protocol relating to the road signs, Geneva, Sept. 19,1949 (supplemented by European Agreements, Geneva, Sept. 16, 1950); Conventionagainst pollution of hydrocarbons at sea, London, May 12, 1954; Convention on inter-national contract of transport of goods by road (CMR), Geneva, May 19, 1956; Europeanagreement on international transport of dangerous goods on road, Geneva, Sept. 30, 1957;Convention on securing aviation (EUROCONTROL), Brussels, Dec. 13, 1960 (withProtocol Brussels, July 6, 1970); London Convention of Apr. 9, 1965 on facilities formarine traffics, as consolidated; Conventions on road traffic and road signs, Vienna, Nov.8, 1968; Convention on civil liability for oil pollution damage, Brussels, Nov. 29, 1969(with Protocol London Nov. 19, 1976); Convention on the establishment of an interna-tional fund for compensation for oil pollution damage, Brussels, Dec. 18, 1971; Con-vention to prevent collision at sea, London, Oct. 20, 1972; Convention on the preventionof the sea pollution caused by dumping, London, Dec. 29, 1972; Customs Conventionon international transport of goods, Geneva, Nov. 14, 1975 (as am’d); Convention oninternational railway transports (COTIF), Bern, May 9, 1980 (as am’d by protocol Bern,Dec. 20, 1990); Convention on the Sea Law, Montego Bay, Dec. 10, 1982; Conventionon international effects deriving from industrial incidents, Helsinki, Mar. 17, 1992;Convention on the protection of the Mediterranean Sea from the pollution, Barcelona,June 9-10, 1995; Agreement on the main navigable ways of international relevance,Geneva, Jan. 19, 1996; Protocol of Kyoto to UN-Convention on climatic variations,Kyoto, Dec. 11, 1997; Protocol on amendment of convention on civil internationalaviation, Montreal, Oct. 1, 1998; Convention to standardize some rules on the interna-tional air transport, Montreal, May 28, 1999; EU-Convention on the landscape, Florence,Oct. 20, 2000.

TREATIES AND CONVENTIONS MARTINDALE-HUBBELL LAW DIGEST - 2007

