Newsletter

Editorial

N 61 August 2012

Trifir & Partners Law Firm

This issue of our newsletter is in duty bound, rst and foremost, to wish all of you a protable back to work! True to its commitments, our Firm remained open this year too during the month of August, though with a smaller staff, in the event of emergencies that did not fail to crop up yet again. Emergencies were about judicial proceedings pursuant to art. 28 of the Statute of Workers and dismissals subject to the new procedure introduced by Act #92/2012. In the early days of August, Act #134 of 7 August 2012 converted into law the Legislative Decree #83 of 22 June 2012 on the "Urgent measures for the growth of the country" (known as decree on Development), comprising a number of novelties regarding employment law. In particular, a number of changes, which are examined in the Focus article that opens up this newsletter, have amended the recent Act #92/2012 (known as Fornero Act). The section on Civil and Insurance Law continues to examine the main novelties introduced by the Decree on Development and, in particular, the provisions set forth to ensure greater transparency and openness to the data in the possession of public administration. The Information Brief this month examines the part the Decree on Development that is dedicated to the new type of incorporation dened as "simplied limited liability company". Enjoy your reading and, once again, have an energizing return to work! Marina Tona and the editorial staff: Francesco Autelitano, Stefano Beretta, Antonio Cazzella, Teresa Cofano, Luca DArco, Diego Meucci, Claudio Ponari, Vittorio Provera, Tommaso Targa, Stefano Trir and Giovanna Vaglio Bianco

Employment Law Focus 2 Civil Law, Commercial, Insurance Focus 4 Information brief 6 Contacts 8

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By Marina Tona

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Modifications to Act #92/2012 on the reform of the labour market

Act #134, of 7 August 2012 was published on 11 August (in the ordinary supplement n 171 of the Official Gazette n 187), thereby converting into law legislative decree #83 of 22 June 2012, headed "Urgent measures for the growth of the country". The new law introduces significant modifications to Act #92/2012 on the Reform of the labour market. In particular, the modifications as at art. 46 bis of Act #134/2012, concern the following points:
Fix-term

contracts: once again the provisions of Labour Decree #368/2001, regarding the lapse of time between one fix-term employment contract and another is being modified.

That period of time is usually of 60 or 90 days, depending on whether the working relationship lasted for a period inferior or superior to 6 months. The periods are now cut down to 20 or 30 days in cases i)where hiring on fix-term contract occurs within the ambit of a specific organizational process: launch of a new activity; launch of a n innovative product or service; implementation of a significant technological change; an additional phase to a significant R&D project; renewal or extension of a substantial tender contract; ii) hiring on fix-term for seasonal jobs; and, iii) hiring applicable to "any other such case as provided for by collective agreements underwritten at any level of the unions comparatively more representative at national level".
Supply

of labour: as from the coming into force of the Act converting the decree on development, supply of labour for no fix-term periods is permitted in all branches of industry where the supplier employs workers hired on apprenticeship contracts. two of the three assumed points set forth by Act #92/2012 (the duration and overall remuneration of the collaborator) are being changed. The standards of 8 months and 80% of the billing by the same person, also by way of another person, originally assessed on one year, are now calculated on 2 consecutive years. occasional work: for the year 2013, persons drawing benefits integrative of salary or support benefits may exercise ancillary work in all branches of industry, inclusive of local agencies, for a maximum remuneration of 3000 for the year. Contributions due on such ancillary work shall not be added up by Social Security to the contribution estimated on integrative or support benefits.

VAT:

Ancillary

Indemnity for idle workers: current conditions are confirmed until 31 December 2014. Monitoring

the social net: by 31 October 2014, a survey on economic and employment prospects shall be conducted to verify the correspondence to such prospects of the interim measures and provisions and to submit possible such initiatives to that effect as are compatible with the situation of the public treasury. of people to pension funds independent from Social Security: the Act converting the decree on Development modies the schedulings for raising the rates of contributions to funds other than Social Security.
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Contribution

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Redundancy

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For the year 2013, the rate of contribution remains at 27%, but shall continue to rise on a sliding scale to reach 33% as from 2018. For people contributing to other forms of pension, the rate shall rise to 20% from 2013 (xed at 19% in the Fornero reform) to reach 24% as from 2016. benets for idled workers (CIGS) for companies under special administration: entitlements to redundancy benets apply only to companies where there exists prospects to continue or to restart the activity and to save, also partially, levels of employment that shall be assessed on the basis of objective standards set down by a decree of the Ministry of Labour. Abrogation of the system by 1 January 2016 is conrmed. on struggling companies: the Ministry of Labour shall collect all the contracts and collective accords of management of redundancies and resort to the social net. An apposite decree shall specify the ways and modes of the collecting. action: art. 4, 1 of Act #68/1999 is modied yet again. Companies may not include, for the purpose of computing the number of differently abled people, also workers hired on x-term contracts of no more or less than 6 months.

Database

Afrmative

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CIVIL, COMMERCIAL, INSURANCE LAW

NEW PROVISIONS IN THE DECREE ON DEVELOPMENT NOW CONVERTED INTO ACT #134 AS FROM AUGUST 7, 2012 PROVIDE MORE TRANSPARENCY IN PUBLIC ADMINISTRATION
By Giovanna Vaglio Bianco
We proceed this month too with our survey of the changes introduced by law decree #83 of 22 June 2012, converted into Act #134 as from August 7, 2012. We shall examine here, in particular, the provisions regarding public administration, which are inspired by the principles of open data and aim at greater transparency and openness of the data in the possession of public administration. With a view to favouring greater transparency in the appropriations of public funds, art. 18 of law decree #83/ 2012, converted, with modifications, by Act #134 of August 7, 2012 and titled "Open administration", provides that the decisions carried out by state agencies and designed to grant or allocate economic advantages to third parties - public or private - shall be subject to disclosure on the Internet. The data shall be publicized on the site of the official site of the state agency allocating such advantages and shall duly mention: a) the name of the beneficiary, b) the amount of money and the title under which such economic advantages are being allocated, c) the office and the name of the public servant responsible for the administrative decision, d) the procedure followed to select the beneficiary, e) the link to the project selected, the curriculum vitae of the subject selected and the contract complete with performance, supplies or services. The publication of the data is expected to be in open online format, so as to enable citizens to access a clear follow-up of the decisions carried out by the agency and shall require an accurate organization of internal procedures and of the sharing of data between the structures of the agency, so as to allow for a regular updating of the data illustrating the concessions or allocations of economic advantages agreed upon. It is important to know that as from 1 January 2013 the publication of such data shall stand as the legal requisite for the efficacy of the decision justifying the concessions and allocations to enterprises, professionals and consultants. As a result, failure to publish such data shall stand as a legal impediment to the allocation of the funds agreed upon.
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Failure to publish such data may be disclosed by the executive and control boards of the agency under its own direct responsibility, and by the beneciary of the concessions or by whoever may have an interest to do so. The provision here examined reects the implementation of the principles of legality, due process and impartiality entrenched in art. 97 of the Constitution and was prompted by the exigency to deliver on the principle whereby data generated by public institutions in the performance of their missions belong to society at large and, consequently, must be made available and usable. It is to be hoped that the adoption of such standard, and the subsequent dissemination in open format of such information as regards the use of public money, shall encourage greater transparency and better access to information by citizens, thus improving the quality of the services delivered to the people.

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INFORMATION BRIEF
By Vittorio Provera

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THE SIMPLIFIED LIMITED LIABILITY COMPANY AND THE CHANGES INTRODUCED BY THE DECREE ON DEVELOPMENT
To stem the current economic and financial crisis and kick-start business in our country, the government has recently introduced a new form of streamlined company incorporation: the simplified private limited liability. Law decree #1 of 24 January 2012 (known as "Grow Italy!") converted, with modifications, into Act #27 of 24 March 2012, has, indeed, introduced art. 2463-bis civil code, headed "simplified limited liability company". This type of company formation was designed for young men with limited capital to allow the formation of an enterprise without putting property under liability. The new measure, in point of fact, places Italy in line with countries like the United Kingdom, France and Germany, where structures with limited share capital have existed for some time now. Compared with the classic limited liability company formation, one of the main changes that characterizes the new law is the fact that the new formation is reserved solely to natural persons who are under thirty five years of age on the date of the incorporation. In addition, the company may be incorporated also with a single euro as share capital, as the price to acquire the perfect property independence which, as in all share capital corporations, shall protect the personal property of the respective partners from personal liability, that is obligations entered into and debt incurred by the company. On the other hand, it shall not be possible to raise share capital above 10.000 without changing the corporation into a standard limited liability company. The creation of the company is effected by its registration in the Registrar of Companies and is exempted from stamp duty and secretarial, and no notarial fees are due. As for the legal system that regulates the functioning, lawmakers fall back on such provisions applicable to standard limited liability companies as are compatible. Admittedly, the new Act strikes as a modern decision and is a step forward to facilitate and accelerate economic development, yet it is not immune to criticism.
The first point regards the restriction of the new formation only to persons under 35 years of age. Indeed, such

restriction might lie open to a question of constitutionality.

The

second point regards the provision of a standard memorandum of association (yet to be issued) that excludes the possibility to introduce ad hoc clauses. The absence of a provision for tailor made clauses that allow for a better fit to the exigencies of the partners could, indeed, crimp the functionality of such new type of formation and, therefore, act as a deterrent.

The last point regards the minimal share capital required.

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If the creation of an enterprise with a mere euro is arguably a major step, it is no less true that no bank shall fund a company with such a derisory share capital. To allow the formation of a corporation with a single euro as share capital makes it cheaper to acquire liability limitation, but it does not make the needs of the company for assets less compelling. Indeed, funds to nance the activities of the company shall have to be supplied by the partners as risk capital or by banks as debt capital. In absence of capital brought in by the partners, the latter will have to provide collaterals to obtain funds from banks. However, the new law surveyed above is also affected by a new decision of the government aimed at substantially increasing the bounds of operativeness of the new type of company formation. Law decree #83/2012 (known as "decree on development") has, in point of fact, introduced some modications and simplications to art. 2463-bis, civil code. In the rst place, art. 44 of Law decree #83/2012 cancels the restriction to under thirty ve years of age and extends to all natural persons, without restrictions on age, the possibility to set up a limited liability corporation using the simplied formation. Also, partners under 35 years of age shall have to pay notarial fees and the duty stamp for registration in the Registrar of Companies. Lastly, Law decree #83/2012 provides as general rule not subject to derogation that the earnings generated by the company shall be destined to a reserve not available of the net assets until said reserve, jointly with the share capital, reaches 10.000. In other words, the simplied formation is somehow scheduled and no minimal capital stands until earnings have of their own provided to its precreation.

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N61 August 2012