OASIS

                        ORGANIZATION OF ADVOCATES SPECIALISING IN INTERNATIONAL SERVICES

italian developments 2009/2010

 Elena Bassan, Rucellai & Raffaelli

 1. Criminal legislation: introduction of the crime of stalking in the Italian system

One of the innovations concerning Italian criminal law - which was of great interest also in view the potential social impact of the matter - consists in the introduction in the Criminal Code of art. 612-bis, which provides a comprehensive regulation of the crime of stalking.

The conduct repressed by art. 612-bis of the Italian Criminal Code consists in repeatedly harassing or threatening a person, so as to induce the victim in a severe and persistent state of fear and anxiety regarding the safety of himself/herself and/or of his/her family members’ and/or to induce the victim to change his/her own way of life.

The crime can normally be prosecuted only upon the complaint of the alleged victim (excepted certain hypothesis, e.g. when the victim is underage, or pregnant, or disabled) but, before and notwithstanding any formal action undertaken by the latter, the head official of local police administration (“questore”) may admonish the alleged defendant, also adopting measures interdicting the latter from using weapons and ammunitions. In the event that, notwithstanding the admonition, the defendant reiterates his/her conduct, the crime becomes subject to public prosecution and the sanctions of the crime include imprisonment – from six months up to four years – and the interdiction from visiting places frequented by the victim.

2. Rules aimed at reorganizing and increasing the efficiency of Public Offices

- In general

Legislative Decree no. 150, dated October 27 2009 (which implements the principles set forth by Law no. 15, dated March 4 2009) constitutes the first step of the reorganization process which shall entail the whole Italian Public Administration in view of the maximization of efficiency and quality of the services rendered by public servants.

In order to accomplish these purposes, this reorganization process operates at two different levels: (1) the improvement of the performance of each public servant, which is constantly subject to control and evaluation, not only in order to progressively eliminate inefficiency but also to reward the most efficient employees, and (2) the accessibility and transparency of the information concerning the level of individual performance of public employees, which is deemed essential for their permanent monitoring.

A special Committee for the evaluation, transparency and integrity of Public Offices has been established for the aforesaid purposes. Controls and disciplinary measures against detrimental behaviors - such as false certifications and lack of attendance to the office – are intensified and may lead to the dismissal of the public employee for disciplinary reasons.

- Health care system

The reorganization process involving Italian Public Administration includes in particular two key areas, such as health care and justice.

With reference to the health care system, these aims of reorganization and simplification have been implemented also by introducing the patient’s possibility to request an on-line, free of charge medical report, simply by way of gaining access to the Internet web-site of any private/public health care body which carried out a diagnostic test, or by way of receiving same report directly in the patient’s e-mail box.

The topic of computerization of patients’ information was also dealt with by the Italian Authority for data protection (“Autorità Garante per la protezione dei dati personali”) which in July 2009 issued two papers (no. 25 and 26, dated July 16 2009) containing the Authority’s Guidelines as regards Electronic Health Care File (“FSE”) and health care dossiers.

- On-line Criminal and Civil trial

Another area concerned by the rules of reorganization of Public Administration is the judiciary system, where the so-called “on-line trial” was implemented by Decree no. 193 dated December 29 2009 and by Prime Minister’s Decree dated May 6 2009 (the latter also includes the rules concerning the Certified E-Mail Box).

In order to reduce the length and to simplify the procedural iter of criminal and civil trials in Italy, it is now provided that many procedural steps (such as the submission of trial papers to Courts’ offices, the communication of Judge’s rulings, the service of trial documents and, in general, all communications made by Courts’ Clerks) may be carried out also using on-line (Internet) services. The system is based upon the use by legal professionals (attorneys at law) of the so-called “PEC” (Certified E-Mail Box) and of a smart-card connected to the professional’s personal computer.

 The Certified E-Mail Box may be granted not only to legal professionals, but also to other categories of professionals (accountants, architects etc.) and to any citizen who requests it and whose e-mail address is published in lists generally accessible to the public, so that he/she may receive by e-mail the service of Courts’ papers addressed to same.

- Alternative dispute resolution instruments for civil and commercial matters

Legislative Decree no. 28 of March 4 2010 has introduced in the Italian system an alternative dispute resolution instrument, the purpose of which is to reduce the huge load of work of the Civil Courts. In some fields of civil litigation (including real estate, lease agreements, damages caused by car accidents, medical liability, libel suits) it is now compulsory – prior to start any Court’s proceeding – to carry out a pre-trial phase aimed at assisting the parties to reach an agreement on the matter at dispute. This pre-trial phase is carried out before a specialized body, duly authorized to assist the parties, and must be concluded within four months.

The attorney-at-law is obliged to inform - in writing - his client of the availability of this alternative dispute resolution instrument; the non-performance of this obligation may cause the voidance of the proxy issued in favor of same attorney.

- “Fast-lane” civil procedure

Law no. 69 dated June 18 2009 inserted in the Italian Civil Procedure Code new articles 702-bis and following, which provide a “fast-lane”, simplified procedure (“rito sommario di cognizione”), aimed at speeding up the course of civil proceedings in cases which present simplified features and do not require extensive or complicated investigations and activities by the Courts. The parties may choose to use this “fast-lane” procedure only for trials concerning rights of which they may freely dispose (with the exclusion, e.g., of trials where the attendance of the Public Prosecutor is compulsory, or concerning bankruptcy proceedings, or liability of directors of a company etc.). The judge is free to decide the actual procedure and timetable to follow, always respecting the rights of defence of the parties, and also to switch to the ordinary trial procedure should he/she decide that the simplified “fast lane” procedure is unfit for the correct assessment of the case in question.

3. Tax federalism

Law no. 2 dated May 5 2009 represents the starting point of the global reorganization of Public Administration in Italy aimed at changing radically the management standards of regional (“regioni”) public administration.

The purpose of this law consists in progressively enhancing the self-sufficiency of each local district in the collection and management of its own financial resources, by progressively eliminating smaller local administrations (“province”) and transforming the regional main towns in metropolitan towns, which shall be the regions’ only administrative centers.

Tax Federalism introduces a system aimed at rewarding the regional administrative bodies which offer - if compared with the standard levels of analogous bodies performing equivalent services - a higher quality of services and a lower level of fiscal pressure.

The regional administrative bodies showing the worst performance shall be sanctioned with the prohibition to recruit new personnel and with limitations of expenses connected with discretional activities. Besides, these bodies shall have to work to balance their accounts, e.g. by selling part of their assets and real estate, as well as by increasing regional taxes. Sanctions are also provided, in certain cases, against regional managers who caused the financial deficit of the entity.

4. Italian Class Action: update

After another postponement (on June 30 2009) of the date of entering into force of the relevant rules, on January 1 2010 the law on Italian Class Action (art. 140-bis of Legislative Decree no. 206/2005, so-called Consumer Code) became finally effective.

The new text of the Class Action rules has been amended so as to better detail the relevant discipline both from the substantial and from the procedural aspect and shall be applicable to torts committed starting from August 16 2009.

Law no. 15 dated March 4 2009, in view of the extensive reform concerning Public Administration, also introduced the possibility to use the instrument of class action against Public Administration.

Differently from the “standard” class action - which was introduced in the Italian system in order to protect consumers from damages due to “serial” agreements and unlawful business conducts - the class action against public offices is aimed at rectifying an incorrect behavior of the latter in the management of public interests but not to compensate the possible damage suffered by a citizen. The purpose of this particular kind of class action is in fact to accomplish a sort of external control, carried out by the Courts, of the standard levels of correct management, economy, efficiency and promptness of public services.

5. Transparence in capital management

- Repatriation of capitals irregularly detained abroad

As an accessory to the reorganization of Public Offices and also as part of the measures adopted for dealing with this period of worldwide financial crisis, the Italian Government also enacted rules aimed at encouraging the “repatriation” to Italy of capitals previously unlawfully detained in countries with “relieved” tax regimes.

In particular, Law no. 141 dated October 3 2009 allowed Italian investors - who previously irregularly established property and financial activities abroad, in countries offering relieved tax regimes – the possibility to regularize their position with the Italian Tax Office by allowing the capitals abroad to re-enter into Italy with the simple payment of a specific tax forfeit (5% of the repatriated capital), excluding the application of any additional penalties. This Law applies to capitals exported outside Italy before December 31 2008 and repatriated between September 2009 and December 2010.

Recently published data highlighted that this temporary regime allowed the repatriation of about 90 thousand million Euro previously irregularly detained abroad.

- Anti-laundering measures

Legislative Decree no. 151 of September 25 2009 amended the current legislation (Legislative Decree no. 231/2007) providing anti-laundering measures, aimed at preventing the use of capitals originating from unlawful activities and terrorism in financial activities.

The anti-laundering rules basically oblige certain categories of operators (public notaries, lawyers, accountants, tax consultants, services providers dealing with companies and trusts, financial operators), performing their services with reference to deals exceeding the amount of Euro 15.000, to: (1) correctly identify the client (verifying the relevant identity and the nature and purposes of the professional service required); (2) register and document the information acquired in the implementation of the services required by clients, and (3) report any suspicious activity and deal.

Financial operators are presently obliged to register and document for the period of 10 years also the activities and deals of amount below Euro 15.000.

6. Law on the temporary postponement of hearings

Law no. 51 (titled “rules regarding lawful impediment to attend to hearings before a Court”) entered into force on April 7 2010 and provides that the Italian Prime Minister and the other Ministers shall not be obliged to attend a hearing before a Court, if charged with criminal offences, while in charge of their office in the Government. The office of Minister is in fact considered a “lawful impediment” to attend hearings before a Court according to art. 420-ter of the Italian Code of Criminal Procedure. The law applies to trials in course or to be started within 18 months from the date of enactment of the law. During this period also the statute of limitations applicable to the alleged crime shall be suspended.

This law does not interfere or impact on art. 96 of the Italian Constitution, which already provides that, in order to start criminal proceedings against the Ministers and Prime Minister for alleged crimes carried out in the performance of their office, the authorization of both the branches of the Italian Parliament is required.

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