OASIS

                        ORGANIZATION OF ADVOCATES SPECIALISING IN INTERNATIONAL SERVICES

ITALY 2010/2011

italian developments 2010/2011

 Elena Bassan, Rucellai & Raffaelli

 1.  Protection of “Made in Italy” – Products’ labelling

Italian law no. 55 of April 8, 2010 (titled “rules concerning the commercialization of textiles, leather goods and footwear”, the so called “Legge Reguzzoni – Versace”),  introduced in the Italian system rules aimed at protecting certain categories of high quality “Made in Italy” products (textiles, leather goods and footwear), by way of providing the consumers with adequate and transparent information as regards the relevant manufacturing process. In particular, the aforementioned Law provides a set of mandatory rules about labelling of finished products, by virtue of which a textile, leather and footwear product can bear the label “Made in Italy” only if a great part of the relevant manufacturing process took place in Italy and, in particular, if at least two of the relevant manufacturing stages (which are specifically listed in the Law for each sector or relevance) were carried out in Italy. The other manufacturing stages, even though not carried out in Italy, must anyway be clearly traceable.

Another law (titled “rules concerning labelling and quality of food products”) was recently enacted (no. 4 of February 3, 2011) with the purposes of providing consumers with transparent, complete and correct information on food products, as well as of protecting consumers’ health and safety. Such Law provides that all food products must show a label stating (1) the product place of origin and (2) the genetically modified ingredients utilized in the manufacturing process, if any.

2.  Corporate liability for crimes committed by top management and employees: reform project

Legislative Decree no. 231/2001 - which introduced in the Italian legal system a form of corporate liability for crimes committed by the corporate management (or other employees subject to such management or to relevant surveillance) in the interest, or for the benefit of  the company - is currently undergoing a major reform project.

The aforementioned Legislative Decree no. 231/2001 provides that a company may be held liable for corporate crimes unless it proves that a “Model of organization, management and control” (i.e. a “Modello di organizzazione, gestione e controllo”) suitable for preventing the perpetration of corporate crimes has been adopted and effectively implemented by same company. In case of commission of a crime, it will be the judge in charge of the criminal case to evaluate and sentence on the suitability of Model adopted by the company for criminal prevention and on its compliance with Legislative Decree no. 231/2001.

The goal of the reform project, which is presently under discussion of the Italian Government, is to introduce a mechanism of certification of the compliance of the Model to the requirements set forth by the Legislative Decree no. 231/2001 through an independent and competent third party, who would have the task to ascertain and certify the compliance – or not – of the Model to the requirements set forth by the law. This mechanism would represent an important safeguard for companies, which presently do not have a reasonable confidence on the suitability of their Model to prevent the commission of crimes and/or on the need to adjust its contents for such purposes.

Another important issue dealt with by the aforementioned reform project is the extension of the catalogue of the relevant corporate crimes, which will soon also include environmental crimes.

 3. Anti - laundering measures: regulation of traceability of financial flows

Law no. 136 dated August 23, 2010, provides rules about traceability of financial flows in relation to contract agreements executed with a public entity. The purpose of this Law is to increase the control on the financial flows in public contracts, as this kind of contracts often represent the mean by which criminal organizations launder the money obtained through illegal transactions. Law no. 136/2010 provides the contractor’s obligations: (i) not to make or receive any payment in cash, (ii) to utilise, for all payments and financial movements connected with a contract agreement executed with a public entity, one or more definite bank or postal account(s) (even though not necessarily dedicated solely for the purposes of the contract agreement), (iii) to communicate the details of said account(s) to the public entity, and (iv) to guarantee traceability of all financial flows however connected to the agreement. The violation of the aforementioned rules concerning traceability of the financial flows is considered as a material breach of contract and determines the early termination of the contract agreement, as well as the infliction of administrative sanctions.

 4. Italian Class Action: update

As already mentioned in last year’s report, the law on Italian class action finally entered into force on January 1, 2010.

In order to verify and control the actual employment of class action in Italy, in 2011 a dedicated web-site (www.registroclassaction.it) has been created. This website lists the information about all class actions which are currently pending or are going to be filed in Italy, together with the instructions for joining them.

Four civil and eleven criminal class actions are presently pending in Italy, whilst the imminent filing of thirty-two more actions has been announced on the website.

 5. Alternative dispute resolution instruments for civil and commercial matters: update

On October 18, 2010, Ministerial Decree no. 180 has been approved, establishing the Register of Alternative Dispute Resolution Bodies (Registro degli Organismi di Mediazione) care of the Italian Ministry of Justice. This Register will list all the public and private bodies and organizations entitled to exercise alternative dispute resolution (i.e. mediation) activity.

In order to be eligible for listing in the aforementioned, an organization must: (i) possess an adequate financial and organizational capacity and an insurance coverage for the damages possibly deriving from mediation activity, amounting to minimum 500,000.00 Euros; (ii) have a corporate purpose compatible with the alternative dispute resolution activity, and offer due guarantees of independence, impartiality and confidentiality in carrying out the ADR services; (iii) possess a minimum of five available mediators, who must be adequately qualified and duly trained to act in the name and on behalf of its organization.

As already mentioned in our 2010 report, mediation is basically an optional instrument, structured as a pre-trial phase aimed at helping the parties to reach an agreement on the matter at dispute. However, in some fields of civil litigation (including real estate; lease agreements; damages consequent to medical liability or libel; insurance, banking and finance agreements etc.) the use of this pre-trial instrument is now compulsory, which means that, prior to and in order to start a civil litigation concerning this kind of disputes, the parties are obliged to carry out the mediation procedure.

The aforementioned provisions have been censured from the lawyers’ bars and associations, which consider them a further hindrance to their professional activity, as well as an obstacle against direct access to justice.

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