Beruflich Dokumente
Kultur Dokumente
HIGHLIGHTS
Highlights T&P 2017
CONTENTS
1 2 3
Editorial Labour Law Privacy
4 5 6
Copyright Labour Law Trade Union
Case-Law Caw-Law
Pag. 11 Isgrò vs Waters: a Pag. 12 News and cases Pag. 16 News and cases of
landmark decision of interest by interest by Tommaso
by Salvatore Trifirò Tommaso Targa Targa
and Francesco and Federico
Autelitano Manfredi
7 8 9
Civil and Business Insurance, Leases, Press Release
Case-Law Liabilities
Pag. 17 News and cases of Pag. 19 Court of Cassation Pag. 20 Articles Highlights
interest by Vittorio Case-Law by in Diritto24
Provera and Giovanna Bonaventura Minutolo
Vaglio Bianco and Francesco
Torniamenti
10 11
Events e Awards Studio T&P
The first objective of any firm is to excel in staff recruitment operations may sometimes
its field and beat its competitors. appear unfair if they do not adhere to good
business practices.
Competition has become fierce in every
business sector and human capital is now Staff loyalty thus becomes a prime objective,
the most important of the “assets” set up by in pursuit of which not only rewarding
a firm in order to conduct its business. salary policies but also valid staff retention
strategies are helpful, and the assistance
It follows that staff retention is a provided by a lawyer in that regard is
fundamental objective for all businesses. fundamental.
Indeed, a business is made up of people¸
the people that find customers and keep Lastly, firms will have to choose the kind
them. Human capital is business’s driving of contracts, organizational structure and
force and it has to be said that in the the type of employment arrangements
competitive climate created among firms, most suited to their business, in view of
1
This article is in the proceedings of the “UN ANNO DI DIRITTO DEL LAVORO [A YEAR OF LABOUR LAW]: highlights
2017” conference held on 12 December 2017, organized by the AIDP Lombardy Group: http://www.aidp.it.
5
the proliferation of laws, decrees and
departmental memoranda that are liable to
create problems if not dealt with properly.
6
Labour Law
LABOUR LAW
NEW LEGISLATIVE DEVELOPMENTS 2
Luca D'Arco Developments in Labour
Law, Pensions Law and
Trade Union L aw.
Constitution of the
Relationship, Management of
the Relationship, Termination
of the Relationship, Special
Relationships, Corporate
Restructuring, Transfer of
Businesses, Trade Union Law
and Industrial Relations, Agent,
Promoter and Brokerage
Relationships, Due Diligence.
Just like in 2016, only a few changes were made in certain specific
areas of labour law in 2017, after the upheaval brought about in 2015. Developments in Civil
L aw.
The first to be recalled is Decree Law no. 25/2017, which amended
the system of joint and several liability in contracts by cancelling the Commercial Law, Company
“right to preventive enforcement” previously granted to the customer. Law, Insurance Law, Industrial
It also abolished the so-called “Vouchers”. Law, Financial Law, Regulatory
Law, Sports Law
However, the most important legislation passed in 2017 is Law no. 81
of 22 May 2017 which, on the one hand, introduced “smart working”
and, on the other, what has been called the Jobs Act for self-employed
workers.
7
3 PRIVACY
PREPARING FOR THE ENACTMENT OF THE
EU REGULATION
Damiana Lesce, Valeria De Lucia and Paola Lonigro
EU Regulation 2016/679 (known as the GDPR) December 2016, the designation of a DPO is
will enter into force very shortly. “recommended” also in the case of “private
In recent months we have tried to provide organizations carrying out public tasks or
readers of our Newsletter with a “guide in exercising public authority”;
instalments” on what needs to be done to be
ready by the fateful date of 25 May 2018. b) the core activities of the controller or the
In these Highlights we have decided to focus processor consist of processing operations
on two of the most debated matters among which require regular and systematic
those regulated by the GDPR: the designation monitoring of data subjects on a large scale.
of a Data Protection Officer and the new rules “Large-scale” processing operations include
on the compensation of damages when data is those which aim to process a considerable
processed unlawfully. amount of personal data at regional, national
or supranational level;
→ THE DESIGNATION OF A DATA
PROTECTION OFFICER c) the core activities of the controller or the
processor consist of processing on a large scale
One of the biggest changes made by the of special categories of data and personal data
Regulation is the introduction of the Data relating to criminal convictions and offences.
Protection Officer. Under the Regulation (Art. In order to determine whether a processing
37), the designation of a DPO is mandatory operation is to be considered carried out
where: “on a large scale”, in its guidelines dated 13
December 2016 the “Article 29” Working Party
a) the processing is carried out by a public recommends that the following factors, in
authority or body. In the guidelines dated 13 particular, are to be considered:
8
Privacy
- the number of data subjects concerned – DPOs should have an in-depth knowledge
either as a specific number of as a proportion of the legislation and general rules on data
of the relevant population; protection and also of the administrative rules
- the volume of data and/or the range of and procedures to be followed in the specific
different data items being processed; relevant sector.
- the duration, or permanence, of the data
processing activity; It will be advisable when selecting a DPO to
- the geographical extent of the processing favour candidates who can prove to possess
activity. the skills needed to deal with the complexities
of the task required of them. Candidates are
The Italian Data Protection Authority has also not obliged to possess formal qualifications
intervened on the matter of the designation of attesting to their skills.
a DPO (cf. Newsletter no. 432 of 15 September
2017 - Doc. Web 6826945), stating that
9
Privacy
- Controllers are liable for damage caused by There is thus a reversal of the burden of proof
unlawful processing. They shall be liable not that implies a presumption of guilt.
only in cases of infringement of the Regulation,
but also in the event of failure to comply with Under paragraph 5 of Article 82, “Where a
other provisions contained in the rules on the controller or processor has, in accordance with
implementation of the Regulation, its delegated paragraph 4, paid full compensation for the
and implementing acts and other provisions of damage suffered, that controller or processor
individual Member States. shall be entitled to claim back from the other
controllers or processors involved in the same
- Processors are liable for breaches of their processing that part of the compensation
obligations and for failing to follow the corresponding to their part of responsibility for
controller’s instructions. Processors have a the damage, in accordance with the conditions
duty of a general scope; they are also required set out in paragraph 2.”
to inform the controller of any not properly
regulated conduct. They could thus also be That provision thus regulates the financial
liable for “failing to duly inform”. consequences of the damage within the
relationships established between controllers
The Regulation specifies the conditions for the and processors, meaning that their liability is
controller’s and the processor’s exemption from not joint and several, but pro-rata.
liability. They have to prove that: The concrete issue is the “criteria for calculating”
the degree/extent of the liability of the various
(1) they are not in any way responsible for parties responsible.
the event giving rise to the damage; A guideline for resolving that issue will
undoubtedly be the ascertainment of the
(2) they have taken all suitable measures to fulfilment by each of the parties involved of the
prevent the damage. duties expressly placed on them by law.
10
4 COPYRIGHT
ISGRÒ VS WATERS: A LANDMARK DECISION
In the case pitting the famous artist Emilio The Court of Cassation has repeatedly stated
Isgrò against Roger Waters charged with that “ the work of invention is protected
counterfeiting the notorious erasures of the provided it is recognized as an act of creation,
artist an accord has been reached. with the consequence that creativity can not
The case was largely covered by the social be excluded only because the work consist in
media and the press La Repubblica wrote simple ideas and notions”.
“ Roger copied in good faith”. La Sicilia
( newpaper) wrote “ Isgrò forgives Roger This ruling in itself protects the work of the
Waters”. artist. Also, it is clear that the album cover is a
case of plagiarism by means of counterfeiting.
Il Messaggero titled “Peace is made between The existence of differences alongside
Roger Waters and the artist Emilio Isgrò”. similarities does not preclude plagiarism.
The artist, counseled by Salvatore Trifirò and The Court of Milan on Intellectual Property
Francesco Autelitano, had sued Waters for decided to stop commercialization of the album
copyrights infringements for the cover of his and fixed at 100 euro every violation.
album “Is this the life we really want”, using To close the dispute at international level the
the trade mark erasures of the artist particularly Court recognized that Roger Waters was in
the cycle of works titled “ Cancellature del good faith and the latter recognized Isgrò as
1964”. the father of Cancellatura and as a great Italian
artist.
The cover of the album used the same technique
of canceling words on pages. The cover almost The case is a landmark decision that
slavishly copied the cancellation technique sets a precedent in Intellectual Property
save for the text of the album. infringements.
11
Labour Law Case-Law
5 LABOUR LAW
CASE-LAW
NEWS AND CASES OF INTEREST
1. The financial reasons that can justify 3. Article 7 of the Workers’ Statute grants
dismissal also include those aimed at increasing workers the right to be assisted in disciplinary
a firm’s profitability, regardless of whether proceedings by a union representative; and not
or not a business is in crisis or has reported by a lawyer.
losses. (Court of Cassation, Employment Div.,
(Court of Cassation, Employment Div., decision no. 9305 of 11 April 2017)
decision no. 25201 of 7 December 2016)
12
Labour Law Case-Law
13
Labour Law Case-Law
14
Labour Law Case-Law
15. In cases of dismissal for objective 16. Case-law conflict on the invalidity of
just cause, the employer carries the burden the probation covenant in the Jobs Act.
of proving that it is impossible to redeploy According to the Court of Milan, on 3
the worker concerned, who is not under November 2016, and the Court of Turin, on 16
any obligation to adduce the jobs that could September 2016, the invalidity of the probation
potentially be assigned to them. covenant implies the worker’s reinstatement in
(Court of Cassation, Employment Div., their job.
decision no. 13379 of 26 May 2017) However, according to the Court of Milan,
in judgment no. 730 of 8 April 2017, and
the Court of Florence, on 13 June 2017, the
invalidity of the probation covenant implies
just financial compensation.
15
Trade Union Case-Law
6 TRADE UNION
CASE-LAW
NEWS AND CASES OF INTEREST
Tommaso Targa
16
Civil and Business Case-Law
1. The powers of a de facto company director 3. It is admissible that, even after the
are analogous to, if not even greater than, those termination of a contract, the party adversely
of duly appointed directors. The former can affected by its breach may still claim that
thus participate with the latter in damaging the the other party has failed to perform it in
company by taking or failing to take certain compliance with the obligations it was required
management decisions. to fulfil, also when there are no grounds for
(Court of Cassation, Civil Div., decision no. obtaining compensation.
17441 of 31 August 2016) (Milan Court of Appeal, decision no. 3375 of 18
July 2017)
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Insurance, Leases, Liabilities
8 INSURANCE, LEASES,
LIABILITIES
COURT OF CASSATION CASE-LAW
1. An act may cause the interruption of 3. The documents enclosed with a party’s
the limitation period if, in addition to clearly statement are to be considered delivered under
stating the obligor’s details, it also contains the the same cover. It is thus the addressee who
details of the claim, the injunction to pay or the carries the burden of proving that the letter
written demand for fulfilment expressing the sent by registered mail was not received or that
creditor’s unequivocal intent to enforce its right its enclosures are missing.
through a formal notice of default. That last (Court of Cassation, decision no. 20685 of 1
requirement is not tied to specific formalities. September 2017)
(Court of Cassation, decision no. 16465
of 4 July 2017)
4. The customization of damages awarded
on a lump-sum basis requires the court to
2. The insurer under a civil liability bring to light and value the specific factual
insurance policy shall indemnify the injured circumstances closely connected with the
third party even when the event occurs within unrepeatable uniqueness of the person’s
the fifteenth day following the expiry of the experience that merit translating into higher
term stated on the insurance certificate. compensation.
(Court of Cassation, decision no. 17207 (Court of Cassation, decision no. 21939 of 21
of 12 July 2017) September 2017)
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Press Release
9 PRESS RELEASE
ARTICLES HIGHLIGHTS IN DIRITTO24
■ Self-employment and “agile working” by ■ The breach of an agreement with the unions that contains a “staff take-up”
Barbara Fumai and Salvatore Trifirò (on Il clause does not per se constitute anti-union activity, which always necessarily
Trentino of 19 June 2017) requires that union rights are effectively harmed
■ “Shirt change” and fall from office: the rules established for trade union
representatives (RSU) are also applicable to the workers' safety representatives ■ May Bacchus and Venus lead to lose one’s job? Comments on a recent Pavia
(RLS) Court’s ruling.
in collaboration with
Andrea Beretta
■ The “smart worker” has deactivated the
→View the profile electronic monitoring device of their presence/
absence from the place of work: a good reason Marina Olgiati
for dismissal
■ An employee offers for sale “refurbished”
→View the profile
smartphones without any information in that
respect: their dismissal is well grounded
Antonio Cazzella
■ A worker loses his job and fiancée. When an employer is allowed to check his
employees’ mail and use it for disciplinary purposes ■ An employment proposal has not always a
→View the profile binding effect
PRESS RELEASE
ARTICLES HIGHLIGHTS IN DIRITTO24
■ New rules governing joint and several liability in contracts. The person in
charge is relieved from liability - Means of protection afforded to the principal
■ Right of access (under the Privacy code) and disciplinary proceedings: which Tommaso Targa
information an employer is bound to give its workers
■ The principles guiding the selection of fungibile
■ Pre-hiring investigations and privacy: what an employer can ask a candidate →View the profile workers to be dismissed for objective reasons
■ PRIVACY AND EMPLOYMENT RELATIONSHIP: how a former employee’s ■ Dismissals inside a residential care home (RSA)
e-mail account should be processed do not per se constitute anti-union activity, even
if the underlying objective reasons are allegedly
not present
Francesco Torniamenti
→View the profile
■ New temporary employment rules and INPS Stefano Trifirò
operating instructions
■ The new General Data Protection Regulation
■ New tax rules enacted by Law decree n. →View the profile
(GDPR) requirements: “New roles in the
50/2017 with reference to labour law company”
■ Workplace harassment
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Events and Publications
• AIDP - 2years after the Jobs Act/Milan, 5 April 2017 • The Plurijus yearly meeting 2017 - Luxembourg,
• 18-20 May 2017
• New horizons in the second level collective bargaining / • Milan Bar Association - Current topics on labour law /
Florence, 25 May 2017 Milan, 30 May 2017
• AIDP - The relationship with a company director: highlights • AGI National meeting 2017 / Turin 14, 15 and 16 September
of labour and company law / Milan, 14 June 2017 2017
• Labour Awards 2017 - Trifirò & Partners, "Lawfirm of the • Event: critical issues in labour law / Trento, 28
Year" - Relationships with trade unions / 21 September 2017 September 2017
• Paradigma Meeting: “Individual and collective dismissals” / • Le Fonti Awards 2017 - Lawfirm of the Year - Labour Law
Rome, 6 October 2017, Milan, 10 November 2017
AWARDS
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Partners and Associates
11 STUDIO T&P
PARTNERS AND ASSOCIATES
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Partners and Associates
24
Offices and Contacts
MILAN ROME
TURIN TRENTO
PARMA
Online Contacts
Twitter: @TrifiroPartners
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Highlights edited by
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