Вы находитесь на странице: 1из 8

NEWSLETTER T&P N°33 YEAR III

FEBRUARY 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
This issue has such a wealth of contents it almost has the feel of a quarterly
journal from academe, to print and read at leisure (if you inadvertently cancelled
the email you can still get the newsletter on www.trifiro.it or on http://
twitter.com/TrifiroPartners).
Our Employment Law “Focus” this month is on the equal treatment of
men and women as set forth in Legislative Decree 5/2010 and which
came into force February 20. The topic was already overviewed on blog
JOBtalk of JOB24 and is here dealt in greater details.
The new provisions may not resolve once and for all the nagging issue of equal
treatment between men and women, but they are bound to have an impact at
the workplace as they cover a large ground and also provide for court
remedies upon action brought either by the injured party herself or by trade
unions or associations "representative of the right of the injured party" (such as
who?), as well as by the Counsellor on equal treatment of territorial jurisdiction.
Furthermore, the impact of the change extends beyond the bounds of civil law.
Indeed, gender discrimination also carries penal sanctions that range from fines
to up to six months imprisonment.
Our “Ruling of the Month” examines the issue of fix-term employment
contracts in light of a recent decision by the Court of Cassation on a case
where our firm acted as counsel, while our “Firm Cases” feature reports on
cases related to determination of self-employed contract and contract as
dependent employee, job downgrading and, lastly, welfare entitlements, an
area where our firm has a proven track record.
Our section on Civil, Commercial and Insurance Law features the
CONTENTS: breaking news of the approval of the legislative decree on controversy
conciliation for civil and commercial disputes, yet to be published on the
Official Gazette. The same issue is examined in depth in our “Information
✦ EDITORIAL
Brief”.
✦ EMPLOYMENT LAW Our Focus section then surveys a number of recent provisions regarding
financial consultants and specifying the regulations applicable to the
✦ FOCUS 2 activity of financial consultant as well as the requisites to exercise
such activity.
✦ FIRM CASES 3 Let's not take up any more time from your reading!
We'll be back next month.
✦ CIVIL LAW, COMMERCIAL,
INSURANCE Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
✦ FOCUS 5 Tommaso Targa and Diego Meucci

✦ INFORMATION BRIEF 7 This is an abridged and edited version in English of Trifirò & Partners
newsletter. If you wish a full-length English translation, please contact
✦ CONTACTS 8 Stefano Trifirò: stefano.trifiro@trifiro.it or newsletter@trifiro.it

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N°33 YEAR III PAG. 2

Employment Law
Focus
By Luca D’Arco

NEW LEGISLATION ON EQUAL OPPORTUNITY

Legislative decree #5, 25/01/2010, makes effective EC directive #2006/54 on equal treatment of men and
women at the workplace.

The main innovation is the introduction of a broad definition of direct discrimination, interpreted as: "any such
disposition, criterion, practice, conduct, as well as order to carry out actions or conducts as produce a
prejudicial effect by discriminating female employees or male employees on the ground of gender and,
in any event, by less favourable treatment given another female employee or male employee placed in
an analogous situation", and to discriminate in general by means of "any treatment less favourable on the
ground of pregnancy, maternity or paternity, also adoptive, or on the ground of entitlements and
exercise of rights attached thereto", or any treatment less favourable supported by a female employee or by a
male employee for having refused unsolicited conducts, carried out in connection with the sex of the person or with
sexual connotations, expressed in physical, verbal or non verbal manners, and having the scope or effect of violating
the dignity of a female or male employee and of creating an intimidating, hostile, degrading, humiliating or offensice
climate.

✦ Equaltreatment regulations ban any form of gender discrimination with regards to access to jobs, in
such aspects as screening and recruitment criteria and standards, as well as training and avenues of promotion.

✦ Any form of direct or indirect discrimination in terms of retribution where qualifications are equal but status
or classification are different are banned, likewise any direct or indirect discrimination with regards to pension
benefits.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N°33 YEAR III PAG. 3

Firm Cases
RULING OF THE MONTH
FIX-TERM CONTRACTS – COURT PRACTICE GETS ITS AIM RIGHT
(Court of Cassation, sentence #1577, 26 January 2010)

The Court of Cassation stepped into the fray over the sensitive issue of fix-term contracts with its recent
decision #1577/2010 by providing an interpretation of art. 1 of Legislative Decree 368/01 that rectifies to no
small degree the notorious ruling #214/2009 handed by the Constitutional Court. The Court, in addition to
proclaiming the constitutionality of art. 1 of Legislative Decree 368/01, had also provided an interpretation
that proved highly controversial insofar as it stated that "the onus of specifications provided for by this last
provision makes it incumbent that every time fix-term employment contract is entered into for the purpose of
a replacement the name of the worker replaced should be transcribed as well as the cause for the
replacement". Such onus, to be discharged already upon entering fix-term contract, appeared to be
unreasonable and also to not flow from a literal interpretation of the new law, neither from the principles that
inspired the new regulations on fix-term employment contracts and nor from EEC directive #1999/70 of
which said law is the incorporation. Indeed, judges on the merits who first found themselves confronted with
such practical subject matters took a clear stance against such interpretation and held as legitimate fix-term
contracts bearing all such elements as were instrumental to practical verification of the need for
replacement, without making it incumbent to mention the name of the worker replaced.
The Court of Cassation has now handed down a clear and detailed decision that reaffirms the power/duty of
a "judicial control…according to criteria of congruence and reasonableness". On the ground of those
very principles, the Court of Cassation pointed out that the legislation in force is characterised by a "system
hinging on general clauses" that need, however, to specify, already in the letter of hire, the motives
(organizational, productive or substitutive) that justify the fixing of a term to the employment contract. Yet,
the onus of specification must be in connection with "situations not standard but objective", so that, in
presence of a complex picture, the name of the worker replaced need not be reported and it is sufficient to
mention such elements (for instance, place of work, tasks, status, etc.) as are instrumental, in single cases,
to judicial control, also by relation of congruence between the number of workers absent in a certain
position and the number of workers hired on fix-term contracts to replace them.
(Counsel: Anna Maria Corna)

OTHER RULINGS
SELF-EMPLOYED CONTRACT AND DEPENDENT CONTRACT – WILL OF THE PARTIES
CRUCIAL
(Tribunal of Milan, 15 December 2009)
For the purpose of qualifying the status of a work relationship as self-employed or as dependent, the judge must
first examine the will of the parties as expressed at time of entering into the contract; all the more so where the will
of the parties has been confirmed also by an on-going relationship, by means of a series of unequivocal
comportments (in the case at hand, the relationship lasted 8 years during which period the collaborator periodically
sent invoices bearing as subject "professional performance" and never disputed the free lance nature of the
relationship). Other elements that preclude definition of the status of the relationship as dependent are: a)
progressive reduction of work hours initiated by the free lance collaborator who gradually scaled back his availability;
b) the exercise of an activity of his own in competition and/or for third party; c) the acknowledged option for the
collaborator to refuse to assist clients of the company with no other consequence than the loss of gain.
(Counsel: Tommaso Targa)

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N°33 YEAR III PAG. 4

SELF-EMPLOYED AND NATURE OF WORK RELATIONSHIP


(Tribunal of Milan, 4 February 2010)
The Tribunal of Milan issued a groundbreaking decision that affirms the dependent status of an employment contract
that lasted for over 7 years between a leading international firm specialised in legal and tax consultancy and a self-
employed registered at the association of chartered accountants. The parties had entered into a self-employed
contract but – in the view of the tribunal – although some degree of hierarchical structure of a work relationship may
be admissible in a professional firm and does not imply that the status of the employee is that of a dependent, yet
such employment qualifies as such where the self-employed is totally subject to the rigid directives of others and
where his professional capacity is merely at the disposition, as in the case under examination. The Tribunal, in
particular, found the present case characterised by: absence of personal responsibility towards clients; obligation of
exclusivity; observance of overall work hours; threat of sanctions for failure to to comply with reports on activity
exercised during work hours; obligation to submit request for leave of absence; use of instruments provided by the
firm; obligation to justify leaves of absence; fixed retributio; clientèle acquired by the firm and mandatorily assigned
to the self-employed.
(Counsel: Giampaolo Tagliagambe)

EMPLOYEE SUBJECT TO INSTRUCTIONS FROM OTHER EMPLOYEE WITH LOWER SENIORITY –


ABSENT CAUSE FOR DOWNGRADING
(Tribunal of Como, 10 November 2009, #363)
The judge laid down that, as under art. 2103, civil code, unilateral change in job contents practically translates into
assigning the employee tasks inferior in nature to those compatible with his qualification status – as defined by the
collective agreement applicable – and as the professional position of the employee as such fits inside an
organization of labour where he is subject to instructions from others; the fact that an employee is assigned to
clerical tasks – compatible with his own status – within the ambit of which he may receive instructions from other
employees with lower seniority does not qualify as downgrading.
(Counsels: Vittorio Provera and Andrea Beretta)

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N°33 YEAR III PAG. 5

Civil, Commercial and


Insurance Law
Focus
CONCILIATION PROCEDURE FOR CIVIL AND COMMERCIAL DISPUTES
SOON TO COME INTO FORCE
By Marina Olgiati
On 19 February 2010, the Council of Ministers approved the Legislative Decree pertaining to art. 60 of
Delegated Law #69, 18 June 2009, regarding conciliatory procedure for civil and commercial disputes,
examined in greater details in our “Information Brief” section.
Conciliation moves into higher gear. The scope is to facilitate alternative, more efficient, simpler and more
expeditious avenues to resolving disputes than the standard judicial remedies, and to ensure access to justice for all
by rolling back Tribunals workloads.
The decree incorporates EC directive 2008/52 of the European Parliament and of the European Council of 21 May
2008 and makes it compulsory to resort to conciliation procedure for a number of matters, such as
condominium disputes, healthcare malpractice, insurance, financial and bank policies, as well as, controversies
and disputes on matters of flat rate rentals.
Special conciliation bodies shall be appointed for the purpose and shall be composed of persons who shall have
undergone a specific program and who shall be registered at the association of instructors for mediation.
Such conciliation bodies may be created also as instruments appointed by the Councils of the Bar Associations of
the respective tribunals of jurisdiction, and appointed by other Councils of other professions for matters reserved to
their competence, including Chambers of Commerce.

The Decree to make such procedure effective is soon to be published on the Official Gazette and we shall go
back on the issue in our forthcoming newsletter

FINANCIAL CONSULTANTS
By Francesco Autelitano
The activity of consultancy on investment – understood as personal counselling to a client on specific
investment schemes – may be exercised by banks or by other persons authorised to carry out such
investment services pursuant to the Omnibus Act on Financial Intermediation (TUF).
However, recent changes by lawmakers have extended the confines of entities authorised to carry out such
activity to include legal persons (art. 18-bis TUF) and joint-stock companies (art. 18-ter TUF) that meet
specific standards. In particular, art. 18-bis (modified by Legislative Decree #101, 17 July 2009) lays down that such
services may be carried out by persons other than intermediaries, provided that they are legal persons in possession
of such requisite property, professional, probity and independency standards as are set forth by the Ministry of the
Economy and that such activity be exercised without possession of sums of money or of financial instruments of the
clients (art. 18-bis TUF).

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N°33 YEAR III PAG. 6

Also, as from 1 October 2009, restriction to such activity no longer applies to limited companies and companies
with limited liability that meet the standards set forth by ministerial regulations (art. 2, §1, Act #69, 18 June 2009).

The details of the activity of financial consultancy and the requisites to be met to carry out such activity are left
for the CONSOB (Italy's stock exchange watchdog) to be thrashed out.
After consultations and a first draft released by CONSOB and pending the soon-to-be-announced final draft of the
regulations to be issued by the stock exchange watchdog, it is to be noted that the specific contours of the
profession of financial consultant have been extended beyond those of the financial intermediary. His activity covers
substantial ground within the framework of investment services, insofar as other types of services (for instance,
transaction, placement, collection and transmission of orders) are oftentimes associated with the activity of
consultancy, and because the accuracy of the overall performance delivered the client is largely estimated on the
basis of the adequacy of the recommendations provided to the client at time of opting for the financial transaction to
be executed.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
NEWSLETTER T&P N°33 YEAR III PAG. 7

Information Brief
By Vittorio Provera

MEDIATION AND CONCILIATION FOR CIVIL AND COMMERCIAL


DISPUTES

The government has recently approved the legislative decree – soon to be published on the Official
Gazette – designed to facilitate amicable settlement of controversies at civil and commercial law.

Under the new scheme, lawyers shall be held, upon being appointed by their client, to inform them of the
conciliation avenues offered and of the appurtenant fiscal relief and incentives provided under such schemes.
Such information must be submitted to and undersigned by the person counselled. Failure to comply may invalidate
the contract between lawyer and client.

Also, any person intent on taking legal action in cases pertaining to condo-related issues, real rights, division,
hereditary succession, family, rental, bailment, rental of company, damage compensation on medical
malpractice or libel, insurance, banking and financial policy, shall be bound to first take the avenue of
mediation. Failure to first seek conciliatory procedure shall invalidate subsequent legal action, which may be
rejected outright. In such case, the judge fixes a term of 15 days for the parties to submit a request of conciliation.
The conciliation procedure may not last more than 4 months, to run from the date the request for mediation was
submitted. In any event, the procedure does not preclude the possibility to seek interim relief, court injunction,
executive order of eviction and seizure orders.

In addition, it is worth noting that the conciliator and any person called in whatever capacity to participate in the
procedure is in duty bound to preserve the confidentiality of whatever information is to be provided for the
purpose of such conciliation procedure. Such information shall not be used for any legal action that may
subsequently be brought, and nor shall the conciliator have the possibility to testify on the statements and
information that came to his knowledge in the course of the conciliation procedure.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
TRIFIRÒ & PARTNERS LAW FIRM
Trifirò & Partners has its head office in Milan and branch offices in
Rome, Genoa, Turin and Trento. Founded in the sixties by Mr.
Salvatore Trifirò, it now numbers 80 professionals and staff-workers
coordinated by the Partners.
Trifirò & Partners is the foremost firm in Employment Law and it also

Design: Emanuela Zocchi


provides legal assistance in the main areas of Civil Law and, in
particular, in Company, Insurance, Commercial, Finance, Industrial and
Administrative Law.

The Firm advises major Italian and foreign corporations, and has a
network of qualified affiliates firms throughout Italy, Europe, Asia and
the United States. It also ensures on-spot assistance through its lawyers
everywhere in Italy and abroad.
Trifirò & Partners boasts one of the most prestigious legal libraries in
paper and in multi-media. The firm is the point of reference for
professional training, conference participation, the editing of articles for
major newspapers, specialised magazines, publications and books.

DEPARTMENTS:
Employment, Agency, Security and Trade-Union
Trading, Industrial, Bankruptcy
Insurance, Banking, Company, Contract
Administrative
Family, Succession

CORRESPONDING FIRMS:
Belgium, Denmark, France, Germany, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK,
China, United Arab Emirates

Milan
20122, Via S. Barnaba 32
Tel.: + 39 02 55 00 11 Fax.: + 39 02 54 60 391; + 39 02 55 185 052; + 39 02 55 013 295

Rome
00192, Lungotevere Michelangelo 9
Tel.: + 39 06 32 04 744 Fax.: + 39 06 36 000 362; + 39 06 32 12 849

Genoa
16121, Piazza della Vittoria 12
Tel.: + 39 010 58 01 39; + 39 010 56 22 62 Fax.: + 39 010 58 28 71

Turin
10121, Via Raimondo Montecuccoli 9
Tel.: + 39 011 52 10 266 Fax.: + 39 011 51 19 137

Trento
38122, Via Galileo Galilei 24
Tel.: + 39 0461 26 06 37 Fax.: + 39 0461 26 44 41

trifiro.partners@trifiro.it www.trifiro.it http://twitter.com/TrifiroPartners

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT