Upon application by Permare Srl, represented by Enrico Mordiglia and Andrea Mozzati, on 25th February 2015 the Antitrust Authority held that Gruppo Ormeggiatori e Barcaioli del Porto di Piombino Soc. Coop., exclusive licensee of the management and operation of the general economic interest services of mooring and boating in the Port of Piombino, violated the provisions of Article 8, paragraph 2-bis and paragraph 2-ter, of Law no. 287/1990. The above provision sets two obligations for the companies operating services of general economic interest which intend to conduct business in markets other than those covered by reserves: the obligation to do business through a separate company and the obligation to give timely notice of the establishment of the separate company to the Antitrust Authority: according to the investigation carried out by the Authority, Gruppo Ormeggiatori failed to fulfill these obligations.
On 13th May 2015 the Italian Constitutional Court handed down the order no. 80/2015 on the issue of constitutional legitimacy of Article 83bis Law 133/2008, which is deemed to be in contrast with Articles 3 and 41 of our Constitution.
The decision of the Court originated from the exceptions filed with the Courts of Lucca and Trento by the lawyers of the companies purchasing the haulage services and from the subsequent referral orders. The Constitutional Court referred to the judgment of the European Court of Justice of 09.04.2014, in which the latter held that the rules on the minimal costs are in conflict with the EU law as they restrict competition and are not appropriate to ensure the achievement of its objective (strengthening and protection of road safety). The Court noted that the judgment of the Court of Justice applies as jus superveniens to pending proceedings and therefore returned the case to the judges of merits with directions to apply the judgment for the decision of the cases. Given the abolition of the minimal costs imposed by the Stability Law 2015, it must be observed that this order acquires value only for pending proceedings, that is for those cases relating to the recovery of the minimal costs when they were still in force.
On 28th April 2015, the Council and European Parliament approved the Regulation on monitoring, reporting and verification (MRV) of CO2 emissions from maritime transport. The MRV Regulation will apply to ships above 5000 tons which arrive to or leave from a port under the jurisdiction of a Member State, as well as within ports under the jurisdiction of a Member State. From 31st August 2017, companies will have to submit to qualified verifiers a “monitoring plan” indicating the method chosen to monitor and report the CO2 emissions released by their ships. The formal entry into force date of the MRV Regulation (which amends the previous Directive 2009/16/CE) is 1st July 2015 and the operations will effectively start on 1st January 2018.
On 15th May 2015 at Palazzo Turati, Milan, Filippo Bruno of Studio Legale Mordiglia gave a presentation in the framework of the Conference organized by AIJA (International Association of Young Lawyers): “AIJA @EXPO – What’s in my bowl? From producer to consumer, quality food for all”. Filippo attended as speaker in session VIII giving a presentation on “New Regulations and tax issues affecting the circulation of food”.
For more information the Conference program can be found attached.
With the judgment no. 4686 of 09.03.2015 the Supreme Court of Cassation, examined the relationship between the Brussels Convention of 1952 on the subject of civil jurisdiction in relation to collisions and the Regulation no. 44/2001, stating the prevalence of the Convention as “special rule”, as provided by Article 71 of the Regulation, also noting that the rules of the Convention are not in conflict with the fundamental principles of the Regulation.
In the same judgment, the Supreme Court of Cassation also stated that the discipline of the direct action against the insurer of civil liability concerns the legal protection of the injured and not the insurance contract.
On 18th March 2015, Studio Legale Mordiglia invited Enrico Mazier, former founder partner of Studio Mordiglia, to give a lecture on the following topic: “Problems related to the supply of detective fuel to a chartered-time vessel”.
The arbitration clause in charterparties
Prof. Marco Lopez de Gonzalo published an article entitled “The arbitration clause in charterparties” on the Italian Journal of Arbitration (no. 3/2014). The article addresses various aspects of arbitration, with particular reference to the issues related to the formal requirements for the validity of arbitration clauses under Italian case law.
” Shipping & International Trade Law”
The second edition of the book “Shipping & International Trade Law” (2014, Thomson Reuters) has been published. The book is a brief comparative survey of various issues of shipping and trade law, structured in answers to questions with a pragmatic approach. Paolo Manica and Michele Mordiglia, partners of the firm, wrote the chapter on Italy.
In a claim for shortage of bulk dry cargoes, by a judgment dated 30th December 2014 the Court of Ravenna agreed with the defendant, represented by Studio Legale Mordiglia, that if the bill of lading is claused “weight unknown”, the burden to prove the shortage and the carrier’s liability is on the claimant. The Court found that such a burden cannot be discharged by unilateral reports of weighing on trucks and dismissed the claim.
Two orders of the Court of Parma, dated 26th November and 15thDecember 2014, upheld the applications of the sender, represented by Studio Legale Mordiglia, to stay the provisional enforceability of court payment orders granted in favor of hauliers based on the “minimum costs” rules (art. 83 bis of Law no. 133/2008).
The orders acknowledge the declaration of illegitimacy of such rules made by the European Court of Justice and state that such declaration applies to the entire period of validity of the “minimum costs” legislation, regardless of the fact that the “minimum costs” are determined by the Observatory of Road Carriage or by the Ministry of Infrastructure and Transport.
By a judgment dated 11th December 2014 (in Case C-576/13) the European Court of Justice declared the illegitimacy of the Spanish legislation regarding ports (the so called “Ley de Puertos”) on the ground that it conflicts with the European principles on freedom of establishment, insofar as such legislation requires terminal operators to enroll or to become a stakeholder of a public company for the port work and to use the port workers of that company, with permission to hire workers on the market only in case of lack or inability of the workers supplied by the company.