The final version of Law Decree no. 18 of 17 March 2020 has been approved. It contains further measures taken by the Italian Government relating to the epidemiological emergency caused by COVID-19, which, unlike the measures previously issued, covers many issues of potential interest in the legal sphere (from measures concerning the transport of goods to those concerning employment relationships; contributions to businesses to State guarantee funds; the suspension of payments of withholding tax, social security contributions and compulsory insurance premiums to measures for internationalisation, Universities and research and so on).
Among these we list below the aspects of greatest interest to our profession.
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- Suspension of time limits in civil and criminal proceedings (Article 83)
This article expressly repeals Articles 1 and 2 of Law Decree no. 11 of 8 March 2020, i.e. those rules which, prior to the new decree, regulated the matter of justice with validity until 22 March 2020, and which had created a number of doubts in terms of the interpretation of their exact scope of application.
First phase
From 9 March 2020 to 15 April 2020, hearings in civil and criminal proceedings pending in all courts shall be postponed ex officio to a later date falling after 15 April 2020.
During this period, the time limits for the completion of any act in civil and criminal proceedings are suspended. […] Where the running of the time limit begins during the period of suspension, the commencement of the running of the time limit shall be postponed until the end of that period. Where the time limit is established according to a future event and this falls in whole or in part during the period of suspension, the hearing or the activity from which the time limit runs shall be postponed so as to enable it to be complied with.
During the same period, the time limits for carrying out any activity in mediation proceedings, in assisted negotiation proceedings and in all out-of-court dispute resolution proceedings that are a condition for the prosecution of the claim shall also be suspended.
These provisions do not apply in the cases indicated in paragraph 3 of the same Article 83 (concerning proceedings that are not strictly related to the typical activity of Commercial Law Firms: family, minors, etc…).
Second phase
It is possible that the managers of the judicial offices may adopt, for the period from 16 April to 30 June 2020, measures aimed at containing the effects of the epidemic, such as, for example, the holding of hearings by means of the exchange and electronic filing of written notes with subsequent adoption outside the hearing of the judge’s decision.
- Rules for the conduct of company meetings (Article 106)
The rule provides for the possibility of convening the ordinary shareholders’ meeting within 180 days of the end of the financial year, as an exception to the provisions of Articles 2364, second paragraph, and 2478-bis of the Italian Civil Code and, if necessary, the Articles of Association.
Companies may also provide for the expression of voting by electronic means or by correspondence and the participation in the shareholders’ meeting by means of telecommunications that guarantee the identification of the participants, their participation and the exercise of voting rights.
Furthermore, limited liability companies may, also by way of derogation from the provisions of Article 2479, fourth paragraph, of the Italian Civil Code and the provisions of the Articles of Association, allow voting by means of written consultation or written consent.
The provisions of this article apply to meetings convened by 31 July 2020 or by the date, if later, until the state of emergency is in force on the national territory relating to the health risk associated with the outbreak of the COVID-19 epidemic.
- Provisions on delays or non-fulfilment of contracts (art. 91)
The provision provides, in favour of the provider of a service, the valuation, in order to exclude his/her/its liability, of compliance with the containment measures provided for in the new decree. To this end, it is also necessary to evaluate the application of penalties relating to delays or failure to fulfil obligations, as well as the loss of the right to enforce them.
In this regard, the decree provides that in Article 3 of the Law Decree no. 6 of 23 February 2020, converted with amendments by Law no. 13 of 5 March 2020, after paragraph 6, the insertion of the following provision: “6-bis. Compliance with the containment measures referred to in this decree shall always be assessed for the purposes of excluding, pursuant to and for the purposes of articles 1218 and 1223 of the Italian Civil Code, the debtor’s liability, also with regard to the application of any forfeiture or penalties connected with delayed or omitted performance”.
In addition, in Article 35, paragraph 18, of Legislative Decree no. 50 of 18 April 2016, as amended, after the words: “Payment of the advance” the following are inserted: “permitted also in the case of emergency delivery, pursuant to Article 32, paragraph 8, of this code”.
- Measures for the performance of the postal service (art. 108)
From 17 March to 30 June 2020, postal workers shall deliver items and parcels by prior verification of the presence of the recipient or the person authorised to collect them, without collecting a signature and subsequently placing the item in the mailbox of the home, office or business, on the floor or elsewhere, at the same address indicated at the same time by the recipient or the person authorised to collect them. The postal worker signs the delivery documents, which also certifies the delivery method.
- Reimbursement of holiday/travel contracts and termination of contracts for the purchase of tickets for shows, museums and other places of interest (art. 88)
The provision expressly states that there is a case of impossibility to provide the service in relation to package tours, travel tickets and tickets for shows of any kind.
This last provision, together with the considerations expressed below, allows us to consider overcome any doubt as to whether all the terms for the fulfilment of the contractual relationship should be considered, in a general way, suspended.
The doubt had arisen by reading art. 1, paragraph 3, of Law Decree no. 11 of 8 March 2020, which expressly made the application of art. 10 of Law Decree no. 11 of 2 March 2020 (issued when there was still the first “red zone”, where paragraph 4 provided for the suspension of the time periods for contractual obligations.
In this regard, nevertheless, it can now be noted that:
- the new decree does not expressly provide for the suspension of the time periods for contractual obligations;
- the new decree mentions and expressly specifies the cases in which the contractual events are impacted by COVID-19 to such an extent as to make it impossible to provide services pursuant to art. 1463 of the Italian Civil Code;
- in general, no regulatory measure issued to date has provided for the suspension of the activities of companies or the transport of goods within the territory of Italy.
For these reasons, it is possible to exclude that, apart from the express provisions contained in the new decree, the time periods for contractual obligations are suspended.
In any case, we are waiting for the first comments and/or circular letters, given that the decree is brand new and the situation is constantly evolving.
