Newsletter

Editorial

N 51 September 2011

Trifir & Partners Law Firm

Moving on after fty issues (more than 4 years of existence!) and at the onset of a new cycle of work, our monthly newsletter arrives right on time to wish you all a prosperous new season. Our rm and its divers branches is unswervingly committed to its mission to provide timely and superior support and assistance. The latest decisions of lawmakers regarding labour law (included in the summer legislation package adopted) were dealt with in our previous issue. An intense debate followed in the wake of the adoption of art. 8 and the issued to be submitted to second level collective agreement. On that score, our rm played no small part, as it numbered among the defence team that counselled Fiat in the highly-publicized legal action brought by the steel workers union (FIOM) in relation with the other no less eventful developments at the factory of Pomigliano D'Arco. The Focus of our Employment Law section examines the sentence handed down by the Tribunal of Turin in July 2011 (which grabbed the attention of all media), which, in the aftermath of the results of a referendum (over 63% of the voters in favour of the agreement out of a total of voters reaching 93% of the workforce), held that the rst level and second level collective agreements were fully valid and had full efcacy to all intents and purposes at Pomigliano D'Arco, after the transfer of the personnel from the former to the new company that now runs the business. The decision is pretty much a landmark and opens up new perspectives for industrial relations.

Employment Law Focus 2 Firm Cases 4 Civil Law, Commercial, Insurance Focus 6 Information brief 7 Contacts 8

The Firm cases section starts, as usual, with the Ruling of the Month, which regards a dismissal case submitted to the Court of Appeal of Rome and regarding the moment in time of the recourse and the qualication of the subjects to do so. Two other sentences follow and deal with interim relief, an avenue which is oftentimes resorted to so as to sidestep lengthy ordinary procedures. It is worth bearing in mind that interim relief petitions must meet certain requisites which do not qualify it as an alternative to a regular sentence. Our Civil Law section opens up with a recent sentence of the Tribunal of Milan on derivative schemes transacted by "qualied operatives". Our Information Brief scrutinizes a decision of the Agency for Fair Competition, published on 4 August and regards the violation of standards protecting commerce between EU member states. The decision has a signicant international outreach. Stefano Beretta and the editorial staff: Stefano Trir, Marina Tona, Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari,Tommaso Targa and Diego Meucci

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Employment Law
Counsel: Giacinto Favalli

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THE FIAT CASE AT POMIGLIANO DARCO

On September 14, 2011, the tribunal of Turin led the in extenso motivations of the landmark decision handed down on 16 July 2011 in the legal action brought by the steel workers union (FIOM) against some companies of the Fiat Group, whose team of counsels included attorneys of our rm. At issue was the transfer of the personnel of the production facilities at Pomigliano D'Arco from the former company (Fiat Group Automobiles Ltd) to a Newco (Fabbrica Italia Pomigliano Ltd). The reading of the motivations of the sentence, which thoroughly examine the case in hand, evinces the full validity and efcacy of the rst level and second level collective agreements as applicable at Pomigliano D'Arco in thorough replacement of the metallurgy industry collective bargain agreement, also in the event - ruled out in any case - of the applicability of art. 2112, civil code regarding transfer of undertakings. It is worth remembering that the collective agreement above mentioned was not signed by FIOM and that it contains a number of highly innovative provisions, such as new measures aimed at cracking down on fraudulent absenteeism and clauses of responsibility undertaken by the signatory unions in case of non-compliance with the issues agreed upon in the collective accord. Upon such backdrop, the Tribunal of Turin pointed out that Where there exists a split between unions, (the Judge, author's note) may not do otherwise than register the fact, concurrently restraining himself to the verication that the new contractual set up reects social parts that are genuinely representative and not organization that are merely for convenience. The Tribunal also conferred signicant importance, for the scope of valuing the legitimacy of the corporate operation, to the outcome of the referendum held between the workers of Pomigliano D'Arco, and where the number of effective voters in relation to the number of registered voters reached about 93%, with 63% voting in favour of the agreement. The position of the Tribunal is to no small extent instrumental in the attempts to overcome the current system of industrial relations and paves the way to a greater awareness of the problems generated by an industrial society increasingly more global and competitive that calls for such greater contractual exibility as can meet as best it can the peculiar exigencies of the single enterprises. Yet, one remains puzzled by a part of the sentence where - though, as we have seen, the legitimacy of the corporate operation is held as fully legitimate as well as the new accords now in force at the factory of Pomigliano D'Arco - it qualies as abuse of the right to negotiate the anti-union practice of the company "insofar as it triggers, as consequential effect, the exclusion of FIOM-CGIL (Italy's main trade union to which steel workers union is afliated, translators note) from the production site of Pomigliano D'Arco (Naples) consequently ordering the Fabbrica Italia Pomigliano Ltd to recognize in favour of FIOM-CGIL the legal system contained in title III of the Statute of Workers.
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Such conclusion clashes with the rst part of the sentence and does not seem to rest on solid legal ground because, on the one hand, in the case at issue, one can not see any abuse of a right but, rather, the mere exercise of one's rights; while on the other hand, because the sentence is in stark contrast with art. 19 of the Statute of Workers which, as is well known, only grants union representativeness at company level to such unions as have signed collective bargain agreements applicable to the company, which for not leaves out FIOM.

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LINK
14/09/2011-Trib. Torino n. 2583

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FIRM CASES
Ruling of the Month

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DISMISSAL FOR JUST CAUSE - INVESTIGATION BY SECURITY AGENCY LAWFUL - PENDING PENAL CASE NO IMPEDIMENT TO RULING ON DISMISSAL OF EMPLOYEE (Court of Appeal of Rome, 12 July 2011)

An employer directed a security agency to place under surveillance some employees at a point of sale where a substantial discrepancy had been registered between the goods coming out of the warehouse and the goods effectively billed and paid by clients. The investigation conducted by the surveillance agency showed that some clients, two cashiers and the employee assigned to nal control of the goods had struck a deal to remove at periodical times substantial quantities of goods from their employer. In particular, the cashiers would not bill - or billed only in part - the goods placed in the trolley of the clients. The latter, upon coming out of the warehouse passed by the employee in charge of nal control who would not verify the correspondence of the billing and the goods stacked in the trolleys of the clients. The employees were dismissed fair way. The dispute at issue regards the the recourse against the dismissal in front of the Tribunal of Rome, brought by the employee in charge of nal control. At the conclusion of the proceedings, the Tribunal of Rome, in view of the justied cause of the dismissal, rejected the petition of the employee. The sentence was impugned in front of the Court of Appeal of Rome, claiming, in addition, that the ndings of the investigation conducted by the surveillance agency could not be used as evidence since the employer had not informed the employees of the names of the surveillance people appointed, in violation of art. 3 Act #300/70. The Court of Appeal threw out the recourse, reiterating the principle whereby the provisions under art. 2 and 3 Act #300/70 do not exclude the power of the employer, pursuant to art. 2086 and 2104, civil code, to control the discharge of work performance, also without informing the employees of the names of the people appointed to surveillance, where such control is aimed at ascertaining the perpetration of unlawful acts by employees in the exercise of their tasks. The Court of Appeal, moreover, in rejecting other claims of the appellant, afrmed that 1) in case of a dismissal directed upon commission of an unlawful and repeated act, tardiness or not of the decision is valued as starting from the moment the unlawful act ceases, insofar as it is only from that moment that the employer is capable of assessing the facts in their entirety; 2) the pending of a criminal proceeding regarding the same facts which led to the disciplinary sanction for wrongdoing does not prevent the company from terminating the employment contract and does not oblige it to wait for the passing of a nal penal sentence on the self-same acts for which the employee was dismissed.
(Counsel: Marina Olgiati)

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Other Rulings
IMPUGNING DISMISSAL AND STATUTE OF LIMITATION ON CREDITS (Court of Appeal of Rome, sentence #3372/2011)

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The Court of Appeal of Rome, upholding the decision of the lower court of the Tribunal, found as non receivable, as an action to impugn a dismissal fair way directed in August 2005, a simple letter delivered inside the sixty days and signed by two attorneys, but not signed personally by the dismissed employee. The two attorneys had declared in the letter that they had been mandated by the former employee, although no proof existed that the mandate had been given prior to the impugning of the dismissal or, in any event, that said mandate had been given inside the sixty days provided by the statute of limitation. According to the Court, judge-made law in such circumstances sets out that it is necessary that the subject who impugns the employment contract termination, on behalf and in the name of the employee, be in possession of a written proxy or - failing that - that the document impugning the dismissal be notied to the dismissed employee in writing and specifying that the employer be notied within the period prescribed at law (in the case at issue, the certication of the impugning document had occurred after the sixty days from the date of the dismissal). According to the Court of Appeal, the objection whereby the release of the proxy was implicit in the contents of the letter impugning the dismissal signed by the sole attorneys is irrelevant, insofar as relating the details of the case - it presupposed the release of the mandate. The same sentence also held that the clock of the 5 year statute of limitation for the employee's credits does not stop ticking simply upon the delivering of a letter sent by the employee to the company appointed to that effect and to verify the congruence of the sums requested and pending payment of the outstanding. Such letter did not qualify as credit claim for residue competence not remunerated and was therefore not valid to block the statute of limitation. (Counsels: Vittorio Provera and Andrea Beretta) INTERIM RELIEF 1) Tribunal of Milan, 16 August 2011 An employee brought action against his employer, claiming that he had been downgraded and asked the Tribunal to direct the company to provide for his immediate reinstatement in his previous remit. The company counter-claimed, contending that the original claim did nowhere specify what irreparable injury the claimant could possibly suffer in the interval necessary for regular proceedings to follow the course leading up to a court decision, or what aspects of his professional skills could be lost beyond recovery during that same period of time. The Tribunal pointed out that, with regards to the requisites qualifying for interim relief, and to avoid that such precautionary measure be viewed as a surrogate to the regular employment dispute resolution avenue, in itself a fast-track procedure, it was necessary to thoroughly ascertain the presence of the essential requisites which trigger interim relief, all the more so since only where real injury was an issue could it be proven the perception of a necessity at law for immediate redress. In particular, in case of downgrading, the onus is on the claimant to prove in practical and specic terms the risk of injury to his legal situation by mentioning what irreparable and irreversible damages to his professional skills and/or health may ow from a non-immediate reinstatement in his former remit. The Judge, in absence of such detailed and specic proofs submitted by the claimant, turned dow the petition for interim relief. (Counsel: Giorgio Molteni)

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Civil, Commercial, Insurance Law

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DERIVATES TRANSACTED BY QUALIFIED OPERATIVES

(Tribunal of Milan, 19 April 2011, #5443)

By Francesco Autelitano
An investment bank underwrites with a client a framework contract to transact operations in derivative nancial instruments. The client is a joint-stock company which also buys abroad products related to its own activity and paid in dollars. the legal representative of said company states (by signing the apposite form supplied by the bank in pursuance of art. 31 of Consob - the stock exchange watchdog agency - regulations) that he possesses specic competence in derivative nancial instruments. On the same that the framework contract is signed two specic derivative operations on currencies are also agreed upon, which regulate buy and sell options based on parameters factoring the rate of exchange between the dollar and the euro. As a consequence of such operations, the client, owing to a minimal coverage of the exchange risk, turns out to have taken on the risk of an incalculable loss. After barely two months from the above mentioned operations, and as the risk of a substantial loss looms large to the client (mark to market proved negative by 147,000), the bank suggests another operation whereby, although adequate to increase the likelihood of a favourable ow for the client, reduces the quantum of such ow and, in addition, does not alter the risk of a potentially incalculable loss for the client himself. As the time of expiry of the derivates underwritten comes to a close, with potential losses for the client on the rise, other operations are set up to move down to future times the losses, with assumptions of risks moving ever higher in concurrence with ever larger losses, and on a backdrop of a coverage by now substantially derisory. On the basis of such circumstances, the Tribunal of Milan examined, inter alia, the question of the obligations of conduct attached to the nancial intermediary with respect to a qualied operative, a relation to which, under the provisions of art. 31 of the Consob regulation n 11522/1998, not all the ordinary rules of conduct provided by the regulations of these activities owing from secondary sources are applicable. The sentence laid down that the rules governing qualied operatives do not exclude the latter from any form of protection, though it added to such preamble the rule whereby the nancial intermediary is under obligation, also towards such a category of subjects, to take care of the interests of the client with professional diligence.

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INFORMATION BRIEF
By Vittorio Provera

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V I O L AT I O N O F F R E E M A R K E T COMPETITION BETWEEN MEMBER STATES

Following a case of price xing between four international corporations bidding for a tender and who had held meetings prior to the bid to share out the medical equipment to be subjected to the tender, the Authority for Fair Competition released on 4 August a decision that aims to crack down on such practices. As a result of this violation of the principle of fair competition and of market rules, the Authority applied art. 15, 1 Act #287/90, which provides for a pecuniary administrative sanction that may amount, as the case may be, to 10% of the revenues of the last scal year registered by each of the companies held responsible. The seriousness of the offence ows also from the fact that, in so doing, the companies hampered the advantages of efciency that would have derived from a streamlined and centralized procurement process. The sanctions inicted proved substantial as, compared to a tender that amounted to about 8.885.000,00, in addition to VAT, the nes ranged from a minimum of 141.000,00 to a maximum of 3.953.000,00.

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