azzurro PANTONE 542 C

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2016
TRIFIR & PARTNERS AVVOCATI

HIGHLIGHTS
Highlights T&P 2016
azzurro PANTONE 542 C
rosso PANTONE 1797 C

3
 CONTENTS

1 2 3
Editorial Labour Law Trade Union Court Rulings

Pag. 5 Editorial by Salvatore Pag. 7 New is new in the legislation Pag. 16 News and cases of
Whatlegislation
Trifir interest
Pag. 11 Personal data
protection in the
digital workplace

4 5 6
Labour Law Civil and Commercial Insurance Law
Court Rulings Court Rulings Court Rulings

Pag. 18 News and cases Pag. 20 News and cases Pag. 23 By Bonaventura
of interest of interest Minutolo

Pag. 26 Sentences of the Court

of Cassation

7 azzurro PANTONE 542 C

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Studio

Pag. 28 Partners and

Associates

Pag. 32 Offices and contacts

44
1 2016 EDITORIAL
SALVATORE TRIFIR
2016 represented a period of change from
a legislative point of view.
After the 2015 introduction of the Jobs Act,
which overturned the equilibriums establi-
shed by the Workers Statute, this year , both
jurisprudence and administrative circulars
first featured, increased protections, pri-
vacy and remote controls, new rules on job
duties and responsibilities, self-employed
workers and unemployment benefits, whi-
le at the same time, the mobility allowance
came to an end. . From 2017, workers who
lose their jobs, even as part of a collective
layoff, will only be entitled to NASPI, cal-
culated on the basis of criteria that apply
equally to all types of involuntary unem-
ployment.
The common thread running through the
entire Jobs Act revolution seems to be a
compromise between the wish to reduce
every type of labour relationship as far as
possible to one of employment, and an
opposing push to weaken employee pro-
tections: either those enjoyed by workers
whose relationship remains unchanged,
or those foreseen in the event of a termi-
nation. In this context, self-employment is
viewed quite unfavourably by the legislator,
as though this were the cause of all ills both
for workers and the company.
And yet Art. 1 of the Constitution, which
states that Italy is a democratic republic,
founded on work, makes specific reference
to this type of work: not only employment,
but also entrepreneurial, professional and
freelance work. The equal dignity of all for-
ms of labour is therefore a principle upheld
by the constitution.
55
 Despite this, labour law from the Biagi Act
to the Jobs Act has assumed that all freelan-
ce contracts are fraudulent and something
to be monitored, regardless of how they
work in practice.
Employment is incentivized both throu-
gh tax relief and a weakening of workers
protections in the event of dismissal. And,
rather than promoting quasi self-employ-
ment, it prefers to set out a number of spe-
cial relationships ranging from evergreen
fixed-term contracts, to various forms of
apprenticeship, and finally the currently
very frequent use of vouchers, which only
increase job insecurity.
The result is a contradictory system. For-
cing less rigid working relationships - whi-
ch the parties themselves would prefer
to be more dynamic and free - into the
straightjacket of employment, only ser-
ves to solidify a companys organizational
structure.
Once the law has reduced all types of rela-
tionship within the firm to one of employ-
ment, it then makes it precarious, reducing
reinstatements to a minimum in the event
66
of dismissal, limiting the amount of the be-
nefit where reinstatement is denied and li-
beralizing the fixed-term contract. A system
based on employees choice would rather be
preferable. Employment implies rigidity, re-
duces the individuals independence, and is
normally less paid, but it should in return
guarantee job stability.
Self-employment, instead, gives workers the
freedom to perform their work and manage
their time in the organization as they wish.
Rather than demonized, it should be encou-
raged as a way to involve individuals in the
business risk, motivate them to work more
productively and allow them to aspire to a
higher salary than those of an employee.
These earnings could then be reinvested
in starting up a new business, thus crea-
ting a virtuous circle which could drive the
long-awaited economic recovery.
Salvatore Trifir
 LABOUR LAW

2 LABOUR LAW
WHAT IS NEW IN THE LEGISLATION

Developments in Labour Law,

D'Arco
Luca DArco
Pensions Law and Trade Union
Law.

Constitution of the Rela-

tionship, Management of the
Relationship, Termination of the
Relationship, Special Relation-
ships, Corporate Restructuring,
Transfer of Businesses, Trade
Union Law and Industrial
Relations, Agent, Promoter and
Brokerage Relationships, Due
Diligence.
Following a busy year of regulatory change in 2015 (including the
enactment of the many delegated decrees contained in the Jobs
Act.), 2016 was characterized by few legislative measures, mainly Developments in Civil
enacting Law no. 208/2015 (the 2016 Stability Act), but including nu- Law
merous clarifications by the Ministry of Labour or by the institutions
on the new law subject matters. Commercial Law, Company
Law, Insurance Law, Industrial
Law, Financial Law, Regulatory
We should begin by noting first of all Leg. Dec. no 8 of 15 January
Law, Sports Law.
2016, which decriminalizes any violations punishable only by a fine,
as well as some of the most serious cases carrying a prison sentence,
which are now subject to administrative sanction alone.

The Ministry of Labour, in Circular no. 6 of 5 February 2016, furni-

shed rules for the application of the said legislation (both cases were
covered in detail in the February 2016 newsletter).

Following the aforementioned (partial) decriminalization, INPS also

issued its Circular no. 121 of 5 July 2016 - August 2016 newsletter -
setting out its own clarification regarding the failure to pay pension
contributions. This specified, among other things, that the 10,000
euro threshold (above which a failure to pay is punishable with a cri-
minal sentence of up to three years imprisonment as well as a fine of
up to 1,032 euros) is calculated for the period 1 January - 31 Decem-
ber of each year.

77
LABOUR LAW

In Circular 28E of 15 June 2016 - July 2016

This includes any omitted payments even whe-
re different welfare agencies are involved.
In its reply to ruling request no. 1/2016 of 20
January 2016 - February 2016 newsletter - the
Ministry of Labour made clear that, in the event
of a separation between companies belonging
to the same group, the interests of the separa-
ting company may coincide with the common
interest of the group, just as is expressly forese-
en for a network agreement.
newsletter the Revenue Agency, in conjun-
ction with the Ministry of Labour and Social
Policy, set out the procedures and requirements
to benefit from a 10 per cent levy in place of
income tax and regional and municipal taxes
(introduced by article 1, paragraphs 182-190 of
Law no. 208/2015 - the so called 2016 Stability
Act), on:
- performance bonuses and the proceeds from
profit sharing
- non-taxable goods and services (benefits),
corporate welfare: employees services and be-
nefits in kind or paid in the form of reimbursed
expenses for broadly defined social purposes
excluded from the employees income;

In Circular no. 3 of 1 February 2016 also de-

scribed in detail in the February 2016 newslet-
ter the Ministry of Labour furnished early in-
structions for inspectors and clarified the new
rules permitting employer-coordinated freelan-
ce contracts, in addition to the cases specified
in article 2, paragraph 2 of Legislative Decree
no. 81/2015, provided that the work performed
is not exclusively personal, or organized by the
client in terms of times and place of work.

With Ministerial Decree of 13 April 2016

May 2016 newsletter - the Ministry of Labour
enacted the rules set forth in the 2016 Stabili-
ty Act on so-called Facilitated Part Time, al-
lowing private sector employees on open-ended
employment contracts and near retirement, to
transform the relationship into a part-time one
to avoid the negative impact of such a decision
on their pension.

88

- benefits and services relating to schooling and
education, recreation, welfare, healthcare or
worship as well as childrens play centres, sum-
mer camps and scholarships;
- benefits and care allowances for elderly or de-
pendent relatives;
- payments in the form of vouchers and lun-
cheon vouchers;
- goods and services (benefits) provided in lieu
of bonuses.
Leg. Dec. no. 136 of 17 July 2016 - described in
detail in the August and November 2016 new-
sletters enacted EU directive no. 2014/67/EU
on the international transfer of workers among
member states of the European Union.
LABOUR LAW
This law sets out in a single text the require-
ments for the transfer and working conditions
of workers, including those transferred under
supply contracts or subcontracting agreements.
Leg. Dec. no. 185 of 24/9/2016 - October 2016
newsletter introduced supplementary and
corrective rules to legislative decrees nos. 81,
148, 149, 150 and 151 of 2015 (enacting the
Jobs Act).
Important additions concerned apprentice-
ships and ancillary work, and two amendmen-
ts were made to the procedure for obtaining
temporary or special unemployment benefit
(CIGO and CIGS).
The corrective decree, whilst also altering the
rules with regard to online resignations, enlar-
ging the category of application, failed to re-
solve certain problems that have arisen in the
meantime concerning the operating and legal
profile (in particular concerning the
case of employees who resign without comple-
ting the online procedure).
The Ministry of Labour, in an attempt to meet
requests for clarification and details to clear up
interpretations of the online resignation proce-
dure and consensual departures, which came
into force on 12 March 2016, published a series
of FAQs on its site which are periodically upda-
ted and discussed in detail in the August 2016
newsletter.
99
LABOUR LAW

The corrective decree to the Jobs Act also re- In Circular no. 1/2016 of 17 October 2016 -
quires the traceability of vouchers, introducing October 2016 newsletter - the National Labour
new disclosure obligations for those who use Inspectorate furnished rules for compliance
them to pay ancillary work. with the new legislative obligations.

10
 LABOUR LAW

PERSONAL DATA PROTECTION IN THE DIGITAL

WORKPLACE

Damiana Lesce
Damiana Lesce and
e Valeria DeDe
Valeria Lucia
Lucia

Data is the new oil. Once gathered and proces- This was the background to the 2015 Jobs Acts
sed, in the age of the digital economy and per- amendments to Article 4 of the Workers Sta-
sonalized marketing profiling, data represents tute regarding remote control. 2016 also saw
the fundamental fuel of 21st century business. new developments on this issue.
Meanwhile, these days we are all used to sha-
ring, uploading and saving our data using in- APP FOR VIRTUAL CLOCKING IN/OUT
creasingly advanced online tools, and in so
doing partially waiving our right to privacy in On 8 September 2016 the Privacy Commissio-
return for goods or services, greater efficiency ner replied to a request from a supply agency
at work, and simpler and faster contacts with for a preliminary evaluation of the use of an
friends, relatives, customers and colleagues. application - with geolocation functionality -
installed on employees smartphones to record
The heightened focus on the question of pri- time and attendance by means of the worker
vacy by the Italian government and the EU logging in and clicking on enter and exit.
and its implications for the employment rela-
tionship is driven by the recognition that it is
impossible to prevent citizens, workers and bu-
siness people from exploiting the potential of
modern technology, at the same time accepting
the importance of protecting such a fundamen-
tal right as the protection of personal data (re-
cognised as such by the European Union Char-
ter on Human Rights).

11
11
LABOUR LAW
This raises the delicate question of being able
to locate workers, and whats more with a tool
like a smartphone in the workers pocket which
could be used to track people outside the wor-
kplace and working hours. The Commissioner
accepted that the employer needs to be able to
tell whether the worker is clocking in or out at
the workplace or somewhere else, thereby ma-
nipulating the system.
It therefore decided to authorize use of the app,
with certain precautions: the agency could only
gather geolocation data at the workplace and
only the clocking in/out date and time, and,
in line with the principles of transparency and
fairness, set up the system to show an icon
The distinction is extremely significant, given
that following the legislative amendment of
2015, Art. 4 of the Workers Statute excludes the
need for a trade union agreement or ministerial
authorization for tools used by employees to
perform their work including time and atten-
dance tools and allows the employer to use the
data gathered with such tools for any purpo-
se connected to the employment relationship
providing the worker is properly informed
about how the tools are used and that controls
are in place, and in compliance with the provi-
sions of the Privacy Code.
12
on the device screen indicating that geolocation
is on, to prevent the accidental capture of data
extraneous to the authorized purposes.
SOFTWARE: WHAT ARE (AND ARE
NOT) WORK TOOLS
The Commissioner also issued another recent
ruling on 13 July 2016, setting out the difference
between lawful software and software which
goes beyond the definition of work tool under
the terms of Article 4 of the Workers Statute.
Returning to the Commissioners decision, the
data processing under preliminary assessment
proved to use software systems which were
not perceptible by the user (background),
and could be used for the constant and indi-
scriminate monitoring, filtering, control
and tracking of the users Internet access and
e-mail use.
The Commissioner ruled that Such software
cannot be classified as tools used by employees
to perform their work (under the terms of Article
4, paragraph 2, Law no. 300/1970) and that
such data processing is in breach of the prin-

ciples of necessity, pertinence and restraint set
forth in the Privacy Code which rule out mas-
sive, prolonged, constant and indiscriminate
controls, such as, in this case, the systematic
recording of MAC Addresses and network con-
nection data.
Instead, software and applications that are stri-
ctly functional to the performance of the work,
including security tools, are classified as work
tools. For instance, the definition may include
e-mail (a personal account given to the em-
ployee) and other corporate network services
such as the Internet connection and security
systems such as logging, antivirus protection
and web filtering (provided they are installed
and used in accordance with the Commissio-
ners guidelines).
PRIVACY SHIELD: TRANSFER OF DATA
TO THE USA
Invalidation of the Safe Harbour in 2015 threw
many multinational companies into a panic.
The United States was no longer regarded as a
country providing an adequate degree of perso-
nal data protection.
As a result, the transfer of data was forbidden
except in certain cases (e.g. with the use of
Binding Corporate Rules). However, with ef-
fect from November 2016, the transfer of data
from Europe to the USA once again becomes
lawful.
LABOUR LAW
With the ruling of 27 October 2016, published
in the Official Journal of 22 November 2016,
the Privacy Commissioner, in compliance with
European Commission decision no. 2016/1250
of 12 July 2016 (which ruled that the Privacy
Shield Agreement gives an adequate level of
protection for data transferred from the Euro-
pean Union to U.S.-based organizations certi-
fied under the said agreement) authorized the
transfer of personal data from Italy to organi-
zations based in the United States and listed as
signatories to the Privacy Shield.
Businesses operating in the USA that sign up
to this international agreement with the Uni-
ted States Trade Department may transfer data
from EU countries without having to obtain
authorization from Member States, providing
they adhere to the rules contained in the agre-
ement.
The U.S. Trade Department will subject the si-
gnatories to the Privacy Shield to periodic in-
vestigations to make sure they follow the new
rules and, in the event of non-compliance may
be fined and struck off the list of signatories.
13
13
LABOUR LAW
The shield also introduces transparency gua-
rantees in relation to data access by the U.S. go-
vernment. The United States prohibits indiscri-
minate mass surveillance of any personal data
transferred under the Shield.
Another highly important development is the
introduction of tools to protect the individual
whose right to personal data privacy is violated
within the Privacy Shield framework.
COMPLIANCE WITH NEW EU GDPR
REQUIRED BY 2018.
Along with the Italian government, the Euro-
pean Union has also decided to revisit the issue
of privacy, adopting the new EU General Data
Protection Regulation.
The text - published in the Official Journal of
the European Union on 4 May 2016 - will take
direct effect in all EU countries from 25 May
2018, when all national legislation on data pro-
tection and standards must be perfectly harmo-
nized.
Public administrations and businesses will have
to comply with a series of requirements by this
deadline to avoid potentially draconian san-
ctions:
14
up to 20 million euros or 4% of annual reve-
nues.
PRIVACY BY DESIGN:
Whenever an authority or business intends to
introduce a new form of data processing whi-
ch might present high risks to the rights of
the interested parties, it must carry out a pre-
liminary assessment of the impact to minimize
these risks and ensure that the systems design
incorporates features to guarantee an adequate
degree of protection.
DATA PROTECTION OFFICER:
The GDPR introduces the figure of Data Pro-
tection Officer (DPO) in businesses and autho-
rities charged with ensuring that they manage
personal data correctly.
The DPO must, among other things, a) inform
and advise the Data Controller or Data Proces-
sor, as well as any employees performing data
processing, about the obligations entailed by
the GDPR or any other EU or Member State
data protection standards; b) oversee observan-
ce of the GDPR and ensure that the personnel
involved in the data processing and related con-
trol activities are properly trained and aware of
their obligations; c) provide, when requested,
an opinion on the data protection impact asses-
sment and monitor performance; d) cooperate
with the privacy authority and liaise between it
and their own organization.
DATA BREACH:
The data controller must notify the national
data protection regulator of any data breach.
 LABOUR LAW

Should the breach represent a threat to perso-
nal rights and freedoms, the controller must
also inform all interested parties (i.e., all those
whose personal data is at risk) and explain how
they intend to limit the potential adverse con-
sequences.
RIGHT TO BE FORGOTTEN:
With the introduction of the right to be for-
gotten, any interested party may obtain the
deletion of their personal data, including onli-
ne data, by the controller in the circumstances
described in the GDPR: where the data is only
held on the basis of consent; where the data is
no longer needed for the purposes for which it
was originally collected; if the data was gathe-
red unlawfully; or if the
interested party has a legitimate objection to its
processing.
This is accompanied by the obligation upon the
data controller responsible for publishing the
data to notify all those involved in processing it
of the request for deletion, as far as technically
possible.
RIGHT TO PORTABILITY:
The GDPR also introduces the right to the
portability of ones personal data allowing the
subject to transfer it from one data controller
to another.

PRIVACY AND LABOUR IN 2017 A CHECKLIST FOR

BUSINESS

Update internal rules on the use of work tools to comply with the amended
Workers Statute Article 4.

Risks of non-compliance: data gathered may be potentially unusable for

disciplinary purposes or to contest the legitimacy of the sanctions delivered
following controls on work tools, of possible fines by the privacy commissioner
or possible lawsuits for compensation.

May 2018 is not far away: to make sure you are ready for the EU GDPR, you need to
start adapting your organizational structure to the new privacy by design and privacy
by default standards and appoint a Data Protection Officer as well as legal and IT
advisors.

Risks of non-compliance: fines up to 20 million euros or 4% of global annual

revenues.

15
15
Giurisprudenza Sindacale
Giurisprudenza
TRADE Sindacale
UNION COURT RULINGS

3
3 TRADE UNION
COURT RULINGS
NEWS AND CASES OF INTEREST

Tommaso Targa
Tommaso Targa

to replace an absent colleague, thereby brea-

ching an obligation required by the company
trade union agreement.

1. A walkout for purely personal or family

reasons cannot be deemed a strike
(Cassation, Labour Section, 3 December 2015
no. 24653).

3. The payment of a fifth of salary to a

trade union named by the employee is lawful
and fitting
(Cassation, Labour Section, 26 January 2016
no. 1353)
An employer cannot refuse to deduct and
pay over a contribution to a trade union de-
signated by the employee, except in demon-
strably exceptional and burdensome cases.
Unwarranted refusal by the employer consti-
2. Partial abstention from duties not tutes anti-trade union conduct.
considered to be an exercise of the right to
strike is unlawful and punishable
(Cassation, Labour Section, 26 January 2016
no. 1350)
In a lawsuit taken by this studio, the Court
of Cassation ruled as lawful a sanction impo-
sed on an employee who, declaring that he was
joining a supposed strike, had simply refused

16
16

4. Failing to give due notice of the loca-
tion of a trade union meeting represents an-
ti-trade union conduct
(Cassation, Labour Section, 26 February
2016 no. 3837)
An employer who communicates the loca-
tion of a trade union meeting with only two
days notice is committing anti-trade union
conduct. According to the Supreme Court
such conduct, while lawful in the abstract, is in
practice intended to compromise trade union
activity.
5. In interpreting a collective agreement,
a judge may introduce an additional asses-
sment of equality, to prevent gender discri-
mination.
(Cassation, Labour Section, 10 March 2016
no. 4689)
6. Commuting injury recognised during
trade union activities.
(Cassation, Labour Section, 7 July 2016 no.
13882)
A road accident suffered by an employee
who is a member of the company RSU and the
trade union management, travelling on paid
leave to a trade union meeting, is considered a
commuting injury.
TRADE UNION COURT RULINGS
According to the Supreme Court, such activi-
ties may not deemed unconnected with work.
7. The criteria of choice and specific pro-
cedures for collective layoffs must be indica-
ted precisely
(Cassation, Labour Section, 5 August 2016
no. 16546)
Any trade union agreement authorizing
collective layoffs must set out precisely not
only the criteria of choice behind the agree-
ment, but describe exactly how they are to be
achieved in practice so that an objective and
specific ranking of the workers maybe drawn
up to ensure that the employer cannot exercise
undue discretion.
8. To deny leave to attend a trade union
meeting outside the work premises because
the location is not indicated in the request as
per the company agreement, is not anti-tra-
de union conduct.
(Cassation, Labour Section, 10 October 2016
no. 20319)
17
17
17
17
17
LABOUR LAW COURT RULINGS

4
4
LABOUR LAW COURT
RULINGS
NEWS AND CASES OF INTEREST

Tommaso Targa

Tommaso Targa
of the behaviour from the point of view of the
subjective requirement of intent or negligence,
or external factors of general conscience and
the principles which, even tacitly, govern our
law.

1. Straining or mobbing?
(Cassation, Labour Section, 19 February
2016 no. 3291)
Where an employer is found to have beha-
ved unfairly or detrimentally towards an em-
ployee, in a unique and isolated case or even in
several sporadic cases, this is considered strai-
ning, a weaker form of mobbing.

3. Artificial insemination and discrimi-

natory dismissal
(Cassation, Labour Section, 5 April 2016 no.
6575)
A worker who is dismissed because she
expresses the intention to be absent from work
to travel abroad to undergo artificial insemi-
nation is invalid because it represents gender
discrimination.
2. An employee cannot be punished for
missing a Sunday shift to go to Mass
(Cassation, Labour Section, 22 February
2016 no. 3416)
Punishment of an employee who gives ad-
vance notice of their absence on a Sunday to go
to Mass fails to take into the seriousness

18
18
18

4. Commuting injury even if travelling to
work on a bicycle
(Cassation, Labour Section, 13 April 2016 no.
7313)
If an employee has an accident when travel-
ling to work by bicycle, it is deemed a commu-
ting injury, since cycling is to be encouraged
for its positive environmental impacts.
5. Extension of notice pacts valid
(Cassation, Labour Section, 15 September
2016 no. 18122)
An extension of notice clause with an em-
ployer is permissible to guarantee the retention
of a particularly qualified employee and defend
against the advances of the competitors, limi-
ting the employees termination option with a
longer period of notice. However, for the pact
to be valid, it must involve a significant recom-
pense in terms of pay and/or career benefits.
LABOUR LAW COURT RULINGS
6. A drug addict who quits rehab can be
fired
(Cassation, Labour Section, 18 July 2016 no.
14621)
A drug-addicted employee who quits a tre-
atment centre forfeits their job protection, and
this is grounds for dismissal as a breach of
trust with the employer.
7. New Workers Statute Article 4 on GPS
and remote control
(Cassation, Labour Section, 5 October 2016
no. 19922)
A GPS system installed on the employees
vehicle represents a mechanism of remote
control of the worker, and as such is unlawful
because it does not serve a legitimate purpose.
19
Civil Law and Commercial Jurisprudence

Civil Law
CIVIL ANDand CommercialCOURT
COMMERCIAL Jurisprudence
RULINGS

5 CIVIL AND COMMERCIAL

5
JURISPRUDENCE
CIVIL AND COMMERCIAL
COMMERCIAL
NEWS AND CASES OF INTEREST
JURISPRUDENCE
COURT RULINGS
NEWS
NEWS
Vittorio Provera AND
andAND CASES
CASES
Giovanna OF INTEREST
Vaglio Bianco

2. Directors' compensation and limitation

Vittorio
By Provera
Vittorio andand
Provera Giovanna Vaglio
Giovanna Bianco
Vaglio Bianco
period.
(Court of Rome, 17 October 2016, no. 19324)
2.
2. Directors'
The noting compensation
Directors a debt in and
ofcompensation limitation
and
the limita-
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period.
tion period of a public company represents
statements
Court
an (Court ofofRome,
Rome,17
act warranting October
17theOctober 2016,
2016,no.
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19324)
of the
limitation
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noting of a debt
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1. Liability of directors without proxies period,
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(Court of Cassation, 31 August 2016, no. description
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the harmfulonly ifconsequences
they are awareofofthecircumstances
conduct of interrupttothe
enough limitation
interrupt theperiod of the period
limitation creditors
of
The
requiring directors
proxies only their therefore
intervention
if they respond
were aware collectively
orofif any
they fail to
circum- entitlement.
the creditor's entitlement.
for the
obtain harmful
the consequences
necessary of
information. the
stances requiring their intervention or if they conduct of
proxies only if they are aware of
failed to obtain the necessary informationcircumstances
requiring their intervention or if they fail to
obtain the necessary information.

3. Commercial property rental and rent

increases
(Court of Cassation, 23 August 2016, no.
3.3. Commercial
13011)Commercial property rental and rent
increases
(Court of Cassation, 23 August 2016, no.
13011)
20 On the rental of properties for non-residential

20
 Civil Law and Commercial Jurisprudence
Civil Law and Commercial Jurisprudence
CIVIL AND COMMERCIAL COURT RULINGS

On the rental of properties for non- relationships must be deemed to be transferred,

residential
On theuse, any pact
rental of aimed not atfor
properties updating
non- under the terms
relationships must of
be article
deemed2558to be Civil Code,
transferred,
use,rent
the anyinpact aimed not
accordance at bringing
with article 32 the
of rent no.
Law up tionships
to the must
buyer of be
the deemed
business tounit,
be transferred,
unless the
residential use, any pact aimed not at updating under the terms of article 2558 Civil Code,
to date in accordance with article 32 of Law under the
parties haveterms
agreedof article 2558 Civil Code, to
392 of 1978,
the rent but at a genuinely
in accordance rent
with article 32increase,
of Law no.is to the buyer of theotherwise
business and
unit,again unless
unless the
no.
null392
and of 1978,
voidbut but
andatthe rather at genuinely
tenant mayrentclaim raising
a refund the
the buyer of
contracts the business unit,
are objectively unless the
recognisable par-
as
392 of 1978, a genuinely increase, is parties have agreed otherwise and again unless
thethe
of rent, is null
excess and void
payment andsixthe
within tenantofmay
months the ties have agreed
extraneous to theotherwise
business and
unitagain
sold. unless the
null and void and the tenant may claim a refund the contracts are objectively recognisable as
claim a refund
restitution theofproperty.
ofpayment the excess payment within contracts are objectively recognisable as extra-
of the excess within six months of the extraneous to the business unit sold.
six months of vacating the property. neous to the business unit sold.
restitution of the property.

7. Declaration of bankruptcy for a holding

(Court
7. of Cassation,
Declaration 25 July 2016,
of bankruptcy forno. 15346)
a holding
For a personal holding to be deemed an
5.5. Business unit transfer
Business unit transfer and
and succession
succession (Court
7. of Cassation,
Declaration of 25 July 2016, no.
bankruptcy for 15346)
a hol-
independent business subject to bankruptcy
For a personal holding to be deemed an
of
of contracts
5.
contracts
Business unit transfer and succession ding
law, the activities
independent of direction
business subject toand control,
bankruptcy
of (Court of
contracts
(Court of Cassation,
Cassation, SectionSection III, III, 11
11 October
October (Court ofnegotiations,
Cassation, 25 July 2016, no. 15346)
including
law, thea personal
activitiesholding must
of direction be performed
and control,
2016
2016 no.
no. 20417)
20417) For to be deemed an
(Court of Cassation, Section III, 11 October in one's
including own name
negotiations,and characterized
must be by in-
performed an
Where
Where
2016 aasale
no. 20417) sale concerns
concerns not the not whole
the whole
com- dependent business subject to bankruptcy law,
objective
in one's desire
own of to
name pursue profits for
and characterized the group
by an
company,
pany,
Where but
but only
a sale a part
a part of it,
of it, the
concerns the principle
not principle
the whole of
of theits
activities direction and independent
control, inclu-
or members,
objective desire and
to therefore
pursue profits for the groupof
common
common destiny
company, destiny
but a part of
of assets
assets together
of it,together organized
organized
the principle of ding negotiations, must be performed in ones
verification
or its name
members,of theand
requisite use of
therefore the name and
independent of
to conduct
to conductdestiny
common a business
a business still
still applies.
of assets applies.
togetherAsorganized As a
a conse- own and characterized by anbehaviour
objective
so-called
verification externalization,
of the requisiteor proof
use of of
the name and
consequence,
quence,
to conduct aany
any contracts contracts
business stillrelating
relating toapplies. toAsthata
that business desire to pursue profits for such
the group or its
by the apparent
so-called shareholders
externalization, or proof as behaviour
of to deceive
business
consequence, unit
unit - or thoseany - or those
which which by
by theirrelating
contracts their
nature to nature
can be
that members, andregarding
therefore the
independent ofofveri-
third
by the parties
apparent shareholders existence
such as to the
deceive
can be
business objectively
objectively unitidentified, identified,
- or thoseinwhich view by in view
of their of their
their nature
reco- fication of the requisite use of the name and
company.
third parties regarding theor existence
recognisable
gnisable utilityutility
for for
the the
area of area
can be objectively identified, in view of their of
business business
strictly so-called externalization, proof of of the
beha-
strictly
connected connected themto-for
to utility them
must -area
mustofinevitably company.
recognisable theinevitably be dee-
business viour by the apparent shareholders such as to
be
med deemed
to serve to
the serve
purposes the of
strictly connected to them - must inevitably purposes
the of the
organization deceive third parties regarding the existence of
organization
to which
be deemed theytoto which
are serve they
sold, unless are sold, unless
of they
they are personal
the purposes the the company.
are personal
organization assets
assets (see articleto which (see
2558 article
Civil
they 2558
areCode) Civil Code)
or unless
sold, unless they
or
theunless
parties the - parties
pursuant - pursuant
to the
are personal assets (see article 2558 Civil Code) to the
express express
provi-
provision
sion
or unless of parties
of article
the article 2558
2558 Civil Civil to
Code
- pursuant -Code
have - have
agreed
the express
agreed
to exclude
provision to ofexclude
certain
article certain
assets assets
2558or Civil
contracts or contracts
Code from the
- have
from
agreed the
succession, succession,
and have
to exclude and have
therefore
certain assetsalsotherefore also
specified
or contracts
specified
from the
the contractual contractual
the succession, relationships relationships
and havewhich bywhich
therefore their
also
by their
nature nature
are are
objectively objectively
and and
recognisably
specified the contractual relationships which recognisably
instru-
instrumental
mental
by their to thetoarea
nature theobjectively
are area
of of business
business and retained
retained by the
recognisably by
the seller.
seller.
instrumental to the area of business retained by
It followsthat
Itseller.
the follows that the the seller's
sellers contractual
contractual rela-
It follows that the seller's contractual

21
21
21
Civil Law
CIVIL ANDand CommercialCOURT
COMMERCIAL Jurisprudence
RULINGS
Civil Law and Commercial Jurisprudence
Civil Law and Commercial Jurisprudence

onthe
to the extent
arrears,that,
at thebyconditions
law, they are anddueto the
to ex-
the
tent
to that, by law, they are due to the creditor. If,
to the
the extent
creditor. that,
that, by
If, therefore,
extent law,
by the they
they are
law,debtor hasdue
are to
to the
stipulated
due the
therefore,
creditor. the
If, debtor
with has
therefore, stipulated inan interest
an interest
creditor. If, rate
therefore, the debtor
the creditorhas
debtor has stipulated
excess
stipulatedof
rate
an with the creditor in excess of the legal mi-
an interest rate with the creditor in excess of
the interest
legal rate
minimum, with the
the creditor
same in
interest excess
is due to
of
nimum,
the legal the
assignee, same
minimum, interest
the
including is due
same
for tograce
the assignee,
interest
the is due to
period.
the legal minimum, the same interest is due to
including
the
On assignee,for the period
including of
for delay.
the On theperiod.
grace other
the the other
assignee, hand,
includingif noforsuch
the pact
gracehas been
period.
hand,
On if no such pact has been agreed between
On the
agreed other
other hand,
the between if
if no
no such
the original
hand, pact
pact has
parties,
such the been
has legal
been
the
agreedoriginal parties, the legal minimum inte-
agreed between
minimum the
interest
between the original
original parties,
is due. parties, thethe legal
legal
rest is due.interest is due.
minimum
minimum interest is due.
8.
8. Clawbacks
Clawbacks and
and customary
customary terms
terms
8.
8. Clawbacks
(Court and
and customary
of Cassation,
Clawbacks terms
7 December
customary 2016, no.
terms
(Court
(Court of
25162)
25162) of Cassation,
Cassation, 77 December
December 2016, 2016, no.no.
25162)
On
25162) the question of bankruptcy clawbacks
On
and,
and,
Onininthe question
particular,
particular,
the question ononof
ofthebankruptcy
the exemption
exemption
bankruptcy clawbacks
underunder
clawbacks ar-
and,
article
ticle in
67, particular,
67, paragraph
paragraph on
3, the
3,
letter exemption
letter
a)
and, in particular, on the exemption under of thea) under
of
Bankrup- the
article
tcy Law,67,
Bankruptcy
article paragraph
Law,
the Court
67, the
paragraph Court3,
3, of
of Cassation letter a)
Cassation
ruled
letter a)thatof the
ofruled
with
the
Bankruptcy
that
the with
phrase theLaw,
phrase
paymentsthe Court
payments
for of
goods
Bankruptcy Law, the Court of Cassation ruledCassation
for
andgoods ruled
and
services
that
madewith
services
that with the
the phrase
inmade exercise
phrase payments
in the exercise
payments for
of business
of business goods
for within
goods and
within
the
and
services
the
customary
services made
customary
made in
terms
in the
terms exercise
thethe the of
of business
legislator
legislator
exercise doesis not
business within
referring
refer
within
the
to customary
exclusively
the to
customary terms
the directthe
practice legislator
relationship
in the
the customary terms the legislator is referring is referring
between
industry in
exclusively
the parties,
question,
exclusively to
but
to itthe
the direct
direct relationship
highlighting
exclusively therefers
change
relationship inbetween
to the terms,
direct
between 10. Management decisions of directors of
the
not parties,
only
relationship in highlighting
the sense
between of
the the change
deadlines,
parties,
the parties, highlighting the change in terms, butin terms,
also
highlighting in 10.
10.
public Management
Management
10.companies decisions of
decisions
decisions of
incontestable
Management
directors
of directors
directors of
of
not
the only
the
not entirein
change
only the
in paymentsense
in terms,
the of
of deadlines,
sense procedure
not only inwhich
deadlines, but
the also
is not
butsense
also in
of
in of public
public
(Court companies
companies incontestable
incontestable
of Cassation, 8 September 2016, no.
public companies incontestable
the entire
customary
deadlines, payment
practice
but also in procedure
the industry
entire
the entire payment procedure which is not which
in
payment is not
question.
pro- 17761)
(Court of Cassation, 8 September 2016, no.
(Court of Cassation, 8 September 2016, no.
customary
cedure. practice
customary practice in in the
the industry
industry in in question.
question. 17761)
The director of a public company cannot
17761)
The
helddirector
director ofofa apublic
liablecompany poorcannot be
be The director of a public
contractually public company
for
company cannot
business
cannot
held
be contractually liable for poor business de-
be held
held contractually
decisions, since such liable
contractually for
for poor
a judgement
liable business
poorapplies
businessto
cisions, since
decisions, such a judgement applies to and
en-
decisions, since such a judgement applies to
entrepreneurial since such a judgement
discretionary applies
powers to
trepreneurial
entrepreneurial
might discretionary
discretionary powers and might
powers and
entrepreneurial discretionary powers anda
if anything arise in connection to
if anything
might bedismissal
relevant in
forconnectioncause.to In
a deci-
might if
decision anything
if of
anything arise
arise in connection
injust
connection to
thisaa
to
sion of dismissal
decision for justforcause. In this context,
decision of dismissal for just cause. In this
context, of
the dismissal
judgement on just
the cause. In
diligence of
this
the judgement
context, the on the
judgement diligence
on of the director
the director
context, the in carrying out
judgement on thehis/her
the diligence
mandate
diligence of
of
in carrying
the
cannot director
involveout
in their mandate
carrying
business out cannot
his/her
choices (even involve
mandate
in the
the director in carrying out his/her mandate
business of
cannot choices (evencontingencies).
inchoices
the presence in of si-
cannot involve
presence business
significant
involve business choices (even
(even in the the
gnificant
presence contingencies).
of However, the judges
However,
presence of significant
the judge's
significant contingencies).
verdict must
contingencies). assess
9. Transfer of loans and interest rate verdict must assess
However, the the
by diligence shown bybody
the
the diligence
However, the judge's
shown judge's theverdict must
must assess
management
verdict assess
9.
9.
9. Transfer
(Court
Transfer of
of loans
of Cassation,
Transfer of loans and
loans16
and
and interest
February
interest rate
interest2016,
rate no.
rate
management
the
in diligence
the taking
diligence intobody
shown
shown
in
account bytaking
by the
the
into
themanagementaccount
margins ofbody
management
the
risk
body
margins ofwith
in risk given
associated with checking
a given ope-
(Court
(Court of
2978) of Cassation,
Cassation, 16 16 February
February 2016,
2016, no.no. in taking
taking into
associated into aaccount
account the
the margins
operation, margins of risk
of that
risk
2978)
The
2978) transfer of a loan, consisting in the ration,
associated
the checking
directorswith a
havethat
given
put the
in directors
operation,
place due have
checking put
safeguards in
that
2978) associated with a given operation, checking that
placecontrols
the due safeguards and controls and obtai-
The
transfer transfer ofof
of ownership
The transfer
transfer aa loan,
ofa loan, of consisting
a debtin the
consisting
loan, consisting in the
position,
intran-
the the directors
and directors have and put
have put in
in place
obtained placethe due safeguards
dueinformation
safeguards
ned the information
and normally required within
transfer
composed,
transfer of ownership
of
sfer of ownership the right
of a debt
of ownership of
to a debt
payment,
ofposition, position,
but
a debt composed also
position, and controls
normallycontrols and
and obtained
required within
obtained thethe information
theframework
information of
the framework
normally of
required such transactions.
composed,
to
of the rightof
oftothe
theprivileges,
composed, the right
real
payment,
rightandto payment,
personal
tobut but
butof also
as wellguarantees
payment, as the
also such
normally required within
transactions. within the the framework
framework of of
to
andthe privileges,
other
privileges,
to the accessory
real and
privileges, real and
and personal
entitlements,
realpersonalpersonal guarantees
also
guarantees entails
and
guarantees such transactions.
such transactions.
and
the
otherother accessory
transfer
accessoryto the entitlements,
assignee
entitlements, of also
the
also
and other accessory entitlements, also entails entails
right
entails to
the
the transfer
interest
transfer
the on
to the
transfer to
the the
the assignee
arrears,
toassignee at the of
of
assignee the
theto right
conditions
right
of to
and
interest
right to
interest on the arrears, at the conditions
interest on the arrears, at the conditions and and

22
22
22
 Insurance
INSURANCE COURT Law
RULINGS

6 INSURANCE COURT
INSURANCE LAW RULINGS
BYBONAVENTURA
BY BONAVENTURAMINUTOLO
MINUTOLO

1. A bank draft is not sufficient proof had been paid.

of
1.payment of anisinsurance
A bank draft premium.
not sufficient proof of The policyholder
In the event, the should
chequesinstead
did nothave claimed
correspond
payment of an insurance premium. the reimbursement
(either in terms of of sums or
amount paid forof"unjust
date issue)
Court of Lecco, 11 November 2016. enrichment", but this
with the premiums was not the
the policyholder claim
presumed
advanced
had been by the plaintiff.
paid.
Should
Court of an insurance
Lecco, 11 Novembercompany
2016. contest the
validity of policies that a policyholder claims The policyholder should instead have claimed
were
Should signed through company
an insurance an agent, contest
the bank thedrafts
vali- Case followed by Bonaventura
the reimbursement of sums paid Minutolo and
for unjust
made out to the company are not sufficient
dity of policies that a policyholder claims were proof Francesco Torniamenti
enrichment, but this was not the claim advan-
of payment
signed of the
through anpremiums. The policyholder
agent, the bank drafts made ced by the plaintiff at the trial.
must
out to the company are not sufficientproduced
demonstrate that the cheques proof of
were
paymentissued of to
thepay the policies
premiums. Thedeclared to be
policyholder Lawsuit taken by Bonaventura Minutolo and
false
mustby the company.
demonstrate that the cheques produced Francesco Torniamenti
were issued to pay the policies declared to be
On
falsethe
by thebasis of this reasoning, the Court of
company.
Lecco rejected a claim by a policyholder -
alleging
On the basisunlawful appropriation
of this reasoning, theby the
Courtagent
of
of premiums
Lecco rejectedpaid for policies
a claim which do -not
by a policyholder al-
appear to have been officially issued
leging unlawful appropriation by the agent of for
reimbursement
premiums paid for of damages underdo
policies which article 2049
not appe-
of the Civil Code equivalent to the premiums
ar to have been officially issued for reimbur-
paid
sementto stipulate
of damages the said
underpolicies.
article 2049 of the
Civil Code equivalent to the premiums paid to
In the event,
stipulate the policies.
the said cheques did not correspond
(either in terms of amount or date of issue)
with the premiums the policyholder presumed

23
23
Insurance Law
INSURANCE COURT RULINGS

2.
2. AAreceipt
receipt signed
signed by theby thealone
agent agent
is 'printed' signature
presentative of the of the headorofofthe
company, theinsurance
manage-
not sufficient proof of payment company, but not the
ment boards of the company. actual signature of
alone is not sufficient proof ofofpayment
an insu-
a representative of the company, or of the
rance
of an premium.
insurance premium. management
This ruling isboards of the company.
particularly interesting since it
closes a longstanding legal vacuum. Indeed, to
CourtofofAppeal
Court Appeal of Milan,
of Milan, 19 April
19 April 2016 2016. This ruling
resolve is particularly
this issue interesting
(the validity or not tosince it
the in-
closes
surer ofa alongstanding
company receiptlegal bearing
vacuum.a Indeed,
printed
Receipt
Receipt ofof payment,
payment,drawn drawnup up
on aonpre-prin-
a pre- to
signature), we had until recently to refertoback
resolve this issue (the validity or not the
printed
ted form provided by the insurer is not innot
form provided by the insurer is in
itself insurer of aruling
to a single company receipt no.
(Cassation bearing a printed
555/1973).
itself
proofproof of payment
of payment of theof premium
the premium
by theby the
in- signature), we had until recently to refer back
insured. The Milan Court of Appeal ruling
sured. The Milan Court of Appeal ruling thus thus to a single
Lawsuit ruling
taken (Cassation
by by no. 555/1973).
Bonaventura Minutolo and
confirms
confirms the
the first
first degree judgement
instance judgement issued by
of the Francesco Torniamenti
the
CourtCourt of Lecco.
of Lecco. Case followed by Bonaventura Minutolo and
Francesco Torniamenti
In particular, the
In particular, the Court
Court of
of Appeal
Appeal ruled
ruled that
that
the payment of premiums to an insurance
the payment of premiums to an insurance
company cannot be
company cannot bedemonstrated
demonstratedbybyreceipts
receipts
of payment for policies which only carry the

3.
3. The
The commercial
commercial agents
agents duties
duties end and on the other a relationship of special trust
with the promotion of business,ofwhile the in- with
which theon
insurance
the onecompany givenan
hand entail theentrepre-
delicacy
end with the promotion business, of the service.
neurial organization equipped with a certain
surance agents duties do not.
but not those of the insurance agent. This additional
structure, and on activity
the otherfurther sets the
a relationship of
insurance
special trust agent
withapart from the company
the insurance commercial gi-
Court
Court ofofTeramo,
Teramo,21 21 April
April 2016.2016. agent,
ven theclassed
delicacynot as an
of the intermediary in the
service.
exchange of assets,
This additional butfurther
activity rather sets
as atheservice
insu-
The duties
The duties ofof the
the commercial
commercial agentagent end
end with
with provider.
rance agent apart from the commercial agent,
business promotion,
business promotion, whilebut those
not those
of theofinsu-
the Under
classed this definition
not as of the insurance
an intermediary agent,
in the exchange
insurance agent. The latter cannot walk
rance agent do not. The latter cannot walk away away aofjust cause
assets, butofrather
withdrawal by theprovider.
as a service principalUn-is
once the
once the contract
contract isis signed,
signed, but
but must
must continue
continue the
der non-fulfillment
this definition ofonthe theinsurance
part of the agenta
agent,
to follow
to follow the
the insurance
insurance relationship,
relationship, carrying
carrying of
justthe duty
cause to defend the
of withdrawal agencys
by the portfolio,
principal would
out further, and no less important, activities
out further, and no less important, activities through the organized on
be the non-fulfilment violation ofof
the part contractual
the agent
which on the one hand entail an entrepreneurial obligations
of the dutytotothe benefit
defend theofagencys
a competitor, as
portfolio,
organization
of payment for equipped
policieswith a certain
which only structure,
carry the opposed
through the to organized
a simple violation
manufacturing defect
of contractual
printed signature of the head of the insurance obligations to the benefit of a competitor, ra-
company, but not the actual signature of a re- ther than a simple manufacturing defect.

24
 INSURANCE COURT RULINGS
Insurance Law

In the case in point, it emerged that a sizable In the subsequent appeal, the policyholder
number
In of inpolicies
the case point, itinemerged
the agency
that portfolio
a sizable Case followedthat
complained by the
Bonaventura
insurance Minutolo
company and
had
were cancelled
number andin
of policies that
thethere wasportfolio
agency an unexplai-
were Teresa Cofano
not comunicated the sum required to repleni-
ned migration of the agencys customers
cancelled and that there was an unexplained to the sh the insured capital and was therefore obli-
agency of aofcompetitor
migration the agency's company, run to
customers by the ged to claim as damages for breach of contract
agents son.
agency of a competitor company, run by the an amount equal to the sum due for indemni-
agent's son. fication.
Lawsuit taken by Bonaventura Minutolo and
Teresa Cofano

4.4. A request
A request for liquidation
for liquidation of a claimof a
pre- In
Thethe subsequent
Rome appeal, the
Court rejected the appeal
policyholder
stating
complained
that the only request by the insured company
that the insurance (liquida-
claim
cludes precludes the reimbursement
the reimbursement of
of damages for
had
breach of contract. tion not comunicated
of the second claim) the represented
sum required to
a de-
damages for breach of contract. replenish the insured capital and was therefore
mand for fulfilment of the policy, but failed to
obliged
meet thetonecessary
claim asrequisite
damages (theforpolicyholder
breach of
Court
Court ofofAppeal
Appealof of Rome,
Rome, 24 April
24 April 2016 2016. contract
had not an amount equal
replenished to the sum
the insured due The
capital). for
indemnification.
insured party was therefore precluded from
The policyholderwho
The policyholder whotakestakes legal action
legal action exclu- The Romereimbursement
claiming Court rejected the appeal stating
of damages that
for brea-
exclusively to obtain the fulfillment of
sively to obtain the fulfilment of policy obli-policy the
ch of contract by the insurance company. of
only request by the insured (liquidation
obligations (liquidation
gations (liquidation of indemnification)
of indemnification) may the second claim) represented a demand for
may not also claim reimbursement of
not also claim reimbursement of damages for damages fulfillment
Lawsuit takenof thebypolicy, but failed
Bonaventura to meet and
Minutolo the
for breach
breach of contract.
of contract. necessary requisite (the policyholder
commented by Francesco Torniamenti had not
replenished the insured capital). The insured
These are the
These are thefacts.
facts.AnAn insured
insured partyparty
who who
had party was therefore precluded from claiming
had just been indemnified by his
just been indemnified by his insurance com- insurance reimbursement of damages for breach of
company
pany for afor a robbery,
robbery, suffered
suffered a second
a second thefttheft
and contract by the insurance company.
and again asked the insurer to
again asked the insurer to be refunded the be refunded
the damages.
damages. The The insurance
insurance company
company refused
refused in- Case followed by Bonaventura Minutolo and
indemnification because the policyholder,
demnification because the policyholder, fol- commented by Francesco Torniamenti
following
lowing thethefirst
firstclaim,
claim,had
hadfailed
failed to
to replenish
replenish
the insured capital, a necessary condition
the insured capital, a necessary condition for for
indemnification of the second
indemnification of the second claim. The di-claim. The
dispute
spute led ledtotoa atrial
trialbefore
beforethe
the Court
Court ofof Rome
Rome
which resulted in the rejection of the
which resulted in the rejection of the insured insured
party's
partys request.
request.

25
25
Insurance Law
INSURANCE COURT RULINGS

SENTENCES OF
OF THE
THE COURT
COURT OF
OFCASSATION
CASSATION

1.
1. Indemnity
Indemnityfor for reduction
reduction of theofinsu-
the of other
This agents.clear by the exceptions under
is made
rance agentsagent's
insurance portfolio
portfolio paragraphs 6 and 7 of the same article regar-
This
ding isthemade
limitedclear by the exceptions
circulation under
of the corporate
paragraphs
portfolio or6 and of a 7changed
of the same articleallocation,
internal regarding
Court
Court ofofCassation,
Cassation, 16 August
16 August 2016, 2016, no.
no. 5221 the limited circulation of the
within the framework of events which fail to corporate
5221 portfolio
offset the or lossofofa business
changedfor internal allocation,
the principal.
Indemnity for reduction of the agents portfo- within the framework of events which fail to
Indemnity for 8reduction
lio, under article of the agent's
bis of the Insurance Agen- offset the loss
With this of business
judgement for theresolves
the Court principal.
a con-
portfolio,
ts Nationalunder article 8ofbis
Agreement 28ofJuly
the1994,
Insurance
pre- trast between decisions of merit, ruling that,
Agents' National Agreement of 28 July
supposes a downsizing of the portfolio by the 1994, With
even the thisresolution
judgement andthe Court resolves
thereafter extinctiona
presupposes
principal, to abedownsizing
understoodofasthe theportfolio by
resolution contrast
of policiesbetween decisions
in favour of merit,
of the rulingcom-
insurance that,
the
andprincipal,
thereaftertoextinction
be understood as the
of the resolution
policies as a even the resolution and thereafter extinction
pany, involves the transfer of portfolio quotas.
and thereafter extinction of the policies
result of transfer (or fragmentation) in favour as a of policies in favour of the insurance company,
result
of otherof agents.
transfer (or fragmentation) in favour involves the transfer of portfolio quotas.

2.
2. Illegitimacy
Illegitimacy of claims-made
of claims-made clauses the
3.contractual
Third partyrights and obligations
beneficiaries named at the
in life
expense of
insurance the consumer.
clauses
Court of Cassation, United Sections, 6 May
2016, no. 9140 3. Third party beneficiaries named
Court of Cassation, United Sections, 6
in lifeofinsurance
Court Cassation, 19 February 2016, no. 3263
May 2016,
In third partyno. 9140 insurance, the so called
liability
mixed or impure claims-made clause, which In life insurance, the naming as third party
In third party
requires liability
that the harmfulinsurance,
act wasthe so called
committed
Court of Cassation, 19 February 2016,
beneficiary of a person not linked to the poli-
"mixed aorspecific
within impure" andclaims-made clause,
specified time which
period, is no. 3263 by a maintenance obligation or eco-
cyholder
requires that the harmful act was committed
not unfair but may be declared null by lack of nomic dependence, must be presumed, until
withinpursuant
merit, a specifictoand
Leg.specified
Dec. no.time period,
206 of is
2005, if In life insurance,
proven otherwise, the naming
to be as made
a freely third party
deci-
not unfair but may be declared null
it produces a significant imbalance in the con- by lack beneficiary
sion, and represents an indirect donation. the
of a person not linked to
of merit,rights
tractual pursuant to Leg. Dec.
and obligations no.expense
at the 206 of policyholder by a maintenance obligation or
2005,
of the ifconsumer.
it produces a significant imbalance in economic dependence, must be presumed,

26
 Insurance
INSURANCE COURT Law
RULINGS

until proven otherwise, to be a freely made unsound mind, may be annulled regardless of
As such it follows that article 775 of the Ci- be deemed equivalent to a person driving wi-
decision, and represents an indirect donation. any prejudice which the person may have felt.
vil Code applies and if made by a person of thout a license.
unsound mind, may be annulled regardless of
As such it follows that article 775 of the Civil
any prejudice which the person may have felt.
Code applies and if made by a person of

4.
4. Physical
Physicaldisability
disabilityandand exclusion
exclusion from deemed equivalent to a person driving without
insurance cover cover a license.
from insurance

Court
Court ofofCassation,
Cassation, 1 April
1 April 2016
2016 no. 6403
no. 6403
In
In the application of
the application of an
an insurance
insurance exclusion
exclusion
clause
clause for
for injury
injury caused
caused by
by aa driver
driver unfit
unfit to
to
drive, taking the wheel of a vehicle unsuited
drive, taking the wheel of a vehicle unsuited to
atodriver with
a driver prosthetic
with arms
prosthetic cancan
arms in no wayway
in no be

27
27
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