N 3

September 2016

Preface
We are proud and excited to open this newsletter and share with our
readers the wonderful news that, under the Labour Awards 2016 within
the Legal Community, Trifir & Partners was awarded the prize of Firm
of the Year for Litigation" on the grounds that it is one of the firms most
appraised in the industry, offering quality advice with speed, precision
and efficiency. The firm is the top legal firm in Italy in high level disputes,
according to the market.

Our thanks go to all our clients for their confidence in us and their loyalty over many decades.
We can report a recent example of our tenacity in defending the rights of our clients, with a an application
to the European Court of Human Rights for the examination of a case following a decision handed down by
the Supreme Court of Cassation. This took the case under Italian law to a European level.

A. Regulatory investigation: privacy and remote control

tools in the workplace
By decision dated 13 July 2016 (Doc. web no. 5408460) the
Guarantor for the protection of personal data, examining a case
of processing data on the use of email and the internet by
employees of a university, provided a definition of "working
tools" in accordance with art. 4, second paragraph, of the
Workers' Statute.
Article. 4 Stat. Lav. introduced by Legislative Decree. n.
151/2015 stipulates that the framework referred to in the first
paragraph (ie, the need for a union agreement or authorisation
of the Territorial Directorate of Labour in the case of the use of
audiovisual equipment or other tools if there is a possibility of
the remote control of workers) does not apply to "working tools" (including means of recording access and
attendance).
In the note dated 18 June 2015, the Ministry of Labour said that new art. 4 Stat. Lav. does not "liberalise"
checks by the employer but simply clarifies what "cannot be considered" remote control tools, those tools

that are assigned to the worker to allow work performance. (Once these would have been called "work
tools). These include PCs, tablets and mobile phones.
The Ministry then stated that, where such items are changed (for example, with the addition of special
localisation software or filtering) to control the worker, such changes could be made only with the agreement
of unions or with the authorisation of the Territorial Directorate of Labour.
In the case examined by the Ombudsman it showed that, based on the specific system configuration, data
on the use of electronic mail and the internet was recorded in a system and kept for five years. Furthermore,
the system made it possible to trace the identity of the user's location, via system administrator intervention.
For these reasons, the Ombudsman considered that this method of treatment of the data is likely to allow a
control of the activity and the use of network services performed by identifiable individuals, resulting in
violation of the principle of lawfulness, of Articles. 11, paragraph 1, lett. a) and 114 of the Privacy Code and
Art. 4 Stat. Lav., as a result of changes made by art. 23 of Legislative Decree. N. 151/2015.
In particular, the Guarantor pointed out that the concept of "working tools" in art. 4 Stat. Lav., second
paragraph, can only consist of services or software that have a strictly functional application to work
performance, even under the security profile. From this point of view and as an example,"tools" can be
applied to the e-mail service offered to employees (through the attribution of a personal account) and the
other services of the company network, including connection to Internet sites. They constitute an integral
part of the functionality of the items, systems and measures allowing the physiological and safe operation
while ensuring a high level of security of the corporate network (for example: logging systems for the correct
operation of the service e-mail, with preservation of only external data, contained in the so-called "envelope"
of the message for a short duration never exceeding seven days. Anti-virus filtering systems that detect
security anomalies in workstations or servers. Provision of network services providing automatic inhibition
systems. Consultation on irrelevant content network rather than institutional recording of access attempts.)
The intervention of the Supervisor is clearly not decisive, however it is necessary for an assessment to be
made case by case since the "narrow functionality" of a software and / or application with respect to the
working performance (also in terms security) cannot do without verification of the specific activity
undertaken by the worker and / or the industry in which he/she operates.

B. The judgment of the month

With the recent ruling no. 17325 dated 25 August 2016, the Supreme
Court held that under the "Rite Fornero," the non-notification of an
action in opposition to the law determines the admissibility of that
action.
The provision in question is Article. 1, paragraph 52 of Law no.
92/2012, according to which "the appeal, together with the hearing
decree, must be notified, through certified mail to the opponent at
least thirty days before the date set for its hearing.
In particular, the Supreme Court pointed out that the so-called Rite Fornero has been designed with specific
timelines and a preferential lane treatment, with the declared purpose of being in the general interest that

it be received rapidly in a situation of great social and economic impact. It is an individual's basic rights that
the more stringent the burden on the parties, the greater the respect the time allocated to them. Unjustified
delaying tactics is evidence of the inadmissibility.
Consistent with the constitutional and supranational rules, the Supreme Court found that the principle of
reasonable duration of the trial be elevated to a constitutional status with the drafting of Article. 111 of the
Constitution. By Constitutional Law. 2/1999, the parameter to adopt an interpretation of the procedural rules
allows an acceleration of time for the decision, avoiding duration being an unnecessary burden of judgment.
This is consistent with the objective pursued also at the supranational level by ' art. 6 of the ECHR insurance
about reaching a decision within a reasonable time.
With recent ruling no. 14390 of 14 July 2016, the Supreme Court ruled on a more specific question: in order
to maintain an effective appeal to the court against the firing, its also possible to apply to submit an urgent
appeal pursuant to art. 700 Code of Civil Procedure, or if it is necessary to bring the action under the new
special procedure.
The Supreme Court concluded that the substantial difference between the two procedures (Rito Fornero and
urgent appeal art. 700 Code of Civil Procedure) suggests that the legislature intended to refer only to the
application of the special procedure art. 1, paragraphs 48 et seq. Of Law No. 92/2012.

C. Our Judgment
1.- Project work in call centres: In cases contesting the genuine nature of the collaborations, the burden of
proof lies on the DTL (Court of Macerata work July 18, 2016)
The case stems from an
inspection
by
the
Territorial Directorate of
Labour of Macerata at a
call centre.
Following this inspection,
DTL issued, in respect of a
company which carries
out marketing activities
of products and services
through call centres, an ordinance with penalties, disputing the nature of the working relationship between
the telephone operators and the company.
Our firm challenged this order before the Employment Tribunal which, in allowing the appeal, ordered its
cancellation.
The decision resulted because the Territorial Directorate of Labour did not absolve the burden of proof, to
be carried out in a rigorous manner, when concerning the subordinated claim nature of labour relations with
employees. In particular, it was noted that the statements made by the inspectors workers were not in
agreement, nor sufficient for a finding that the relationship could have had all the characteristics to be
qualified as an employment relationship.

2.- Conditions of validity for non-competition agreements. (Court of Treviso, Ordinance 11/14 April 2016)
It is permissible for a non-competition agreement
with an employee (which restricts the latter from
carrying out, on behalf of a competitor, "any
activities in a broad sense in competition" with the
employer) to be integrated, in terms of
interpretation, with the agreement that precludes
the worker misusing information about the
employer. The extension of this obligation does not
imply that the judge cannot redefine the limits on
an equitable basis. The consideration of the
agreement must be determined or determinable.
That is, when the worker is able to have an accurate
representation of the consideration offered, the size must be quantifiable at the time of signing the
agreement.
In the present case, the Court, by way of an accelerated procedure, agreed with the argument of our firm,
considered legitimate, a non-competition agreement entered into for a fixed term (valid for 3 years from the
date of agreement). The agreement provided for an annual fee, divided into half-yearly installments, to be
paid in the three years of validity of the agreement. In fact, even though there is a delayed payment, the
overall consideration is equal to the annual fee multiplied by three years, and is therefore easily quantifiable
ex ante.
The Court has, therefore, granted the injunction request in an urgent manner, noting that the danger of
irreparable injury is in re ipsa. Highlighting, on the one hand, the number of clients that have already gone
astray and its importance. The expected increase in clients consistently neglected in the case, resulted in
failure of the contractually agreed penalty to cover the damage actually suffered by the company.
3.- The constitutional principle of fair trial requires the specificity of the grounds of appeal (Court of Appeal
of Naples, Labour Division, judgment no. 3028 of 9 May 2016)
A worker appealed before the Court of
Appeal on a judgment which rejected the
question of the formulated recognition of
occupational diseases.
In defending the employing company, the
firm pleaded that the appeal of the worker
was unacceptable, having sided with the
appellant who failed to clearly identify the
rulings related to the plea and the complaints specifically related to the ruling. This limited the arguments
already made by not providing a trace of "critical" steps in the reasoning of the judgment rendered by the
Court.
In acceptance of the said preliminary objection, the Court of Appeal of Naples noted that "the appeal to
overcome the eligibility screening in art. 434 Code of Civil Procedure must specifically indicate the parts of
the measure that it wants to challenge (volitional profile). This is necessary for elements of the decision to
be understood not only by the leaders of the decision but also all of the individual segments that make it up
when you take on an independent existence (or causal) with respect to the decision. It should suggest

changes that should be made, to allow the reconstruction of the fact (profile argumentative); the relationship
of cause and effect between the breach of the law which is denounced and the outcome of the dispute
(causal profile) ... ".
This is also in order to ensure compliance with the principles expressed by art. 111 Constitution, "in closely
related segments of a fair trial within a reasonable time.

D. Focus on
"Super-companies" de facto, foundations and consequences in the case of insolvency.
A company is defined as a "de facto" company when it
is formed on the basis of a verbal or conclusive
behaviour, with evidence suggesting the will of the
parties to establish a social relationship. Obviously
there must be a common intention of the parties
involved, to work together to pursue a profit, by
carrying out economic activities and with the
availability of financial, material or immaterial
resources that constitute a kind of mutual fund.
The company in fact can even be hidden, where there is a person acting as an entrepreneur and other
subjects that do not appear formally, become members (so that they are not revealed outside the company's
existence). In this context, the Supreme Court, with three recent decisions issued in 2016 (judgment no. 1095
of 21 January 2016; judgment no. 10507 of 20 May 2016 and decision no. 12120 of 13 June 2016) addressed
this issue. The so-called de facto super-company was formed by conclusive facts between corporations. The
failure of that company, extended to shareholders (natural or legal persons) with unlimited liability.
Briefly, we refer to the case treated in judgment no. 12120 of 2016 which addresses issues and principles
present in other rulings mentioned above, addressing the full facts which are of substantial importance, as
well as legal significance.
The story is inspired by a judgment of the Court of Florence which - after declaring the bankruptcy of a limited
liability company (Ltd.) - established the existence of a de facto unlawful Ltd company from a relationship
between the company and a natural person, forming an unlimited liability company, was pronounced as a
failure in extension. In the first instance the decision was appealed before the Court of Appeal of Florence,
which had revoked the failure of an irregular companies on the assumption of Article. 147 L.F. It could not
justify the extent of the failure, of a company with limited liability, to a third party liable to be a qualified
external partner. The assessment in question was challenged before the Supreme Court by the Curator of
the failure of Ltd, who has complained about the violation of Articles 147 L.F. and 2361 cc
The Judges of legitimacy, calling ruling n.1095 of 2016 of the same court, noted firstly, that to be considered
eligible for participation, there needed to be conclusive evidence of a capital companys connection to
another company, called "de facto," giving rise to a so-called super-company".
In this respect, however, the Court also emphasized that taking part in the work of the involved corporations
can also occur through the simple act of the management body (Board of Directors). So in the absence of a
shareholders' resolution and the subsequent indication in the notes to the financial statements under Art.

2361 paragraph 2 of the commercial code, in fact, the evidence of such participation is essentially an act that
can bind the directors and Company against third parties, even in the absence of a resolution by the
shareholders (especially if you do not implement a substantial social change object). Thus it protects the
status of third parties who come into contact with the Company by enabling them to rely on those
representing the company (ie the directors). The limitations to their powers are not binding on third parties
pursuant to Art. 2384 of the Commercial Code, even if those restrictions are made public, unless it is proved
that such persons have acted knowingly to the detriment of society.

The above is consistent with the objectives pursued by the legislature in the reform of corporate law, with
the intended purpose to encourage the raising of capital and credit risk, encouraging the protection of the
market, social action stability and certainty of trade. Therefore, the risk of violations committed by the
directors, through the possible performance of acts exceeding the powers conferred on them is transferred
to the company, guaranteeing third parties protection in that their actions represent the management body.
Obviously they remain without prejudice to the liability of the aforementioned directors against the
company, shareholders and third parties, if they have acted in violation of the duties imposed by law, through
the remedies made by the action of social responsibility, dismissal, the complaint to the Tribunal.
It is possible, the eligibility of an insolvent company (hidden or otherwise irregular) consisting of joint-stock
companies may obtain the failure in extension of that de facto company, due to its business activities,
pursuant to art. 147 L.F.
As above, according to the Court, considering Article 147 paragraph 5 L.F. cannot apply in any event to cases
where the subject, is an individual entrepreneur. On the contrary, there would be a breach of the principle
of equality enshrined by 'art. 3 Const., there being no reasons that would justify a different regulatory
treatment in the event that the shareholder already declared bankrupt (as established above) and collective
or individual entrepreneur.
The ruling is comprehensive, ensuring a consistent and uniform protection to third parties. Of course it is
hoped that the application remains the same in the opposite direction, with intuitable negative
consequences to economic and legal relations.

Edited by lawyers Stefano Trifir, Damiana Lesce and Valeria De Lucia]