International trade and commercial transactions in Italy: overview

A Q&A guide to the regulation of international trade and commercial transactions in Italy.

The Q&A covers key matters relating to sale of goods contracts, including rules on formation, price and payment, delivery, passing of title and risk, variation and assignment, enforcement and remedies, exclusion of liability, choice of law and jurisdiction, and arbitration. It also provides an overview of the rules governing storage of goods, imports, trade remedies, exports and international trade restrictions.

To compare answers across multiple jurisdictions, visit the international trade and commercial transactions Country Q&A tool.

This Q&A is part of the International Trade and Commercial Transactions Global Guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/internationaltrade-guide.

Contents

Recent trends

1. What are the recent trends affecting the regulation of international trade in your jurisdiction? Is your jurisdiction a member of the World Trade Organization (WTO)?

Italy has been a WTO member since 1 January 1995 and a member of the General Agreement on Tariffs and Trade (GATT) since 30 May 1950. It is also a founding member of the EU. All EU member states are WTO members, as is the EU in its own right.

Recent trends

Italy is the world's eighth largest economy with a GDP of EUR1.6 trillion in 2014. The Italian economy is beginning to move into a solid recovery after its longest recession in recent memory (Italy's economy has contracted by over 9% since 2007).

As a result of the structural reforms brought by the Italian Government over the last two years, Italy emerged from recession in the first quarter of 2015, resulting in a GDP increase of:

  • 0.7% in 2015.

  • 1.2% in 2016.

Additionally, the unemployment rate fell under 12% in August 2015, registering the best result since 2013.

Italy's economic development varies greatly across regions. Industrial activity is concentrated in the northern part of the country, which is one of the most industrialised and prosperous areas in Europe. Industrial activities account for over 50% of Italy's national income, offering good infrastructure and a highly trained workforce. Italy's economy is dominated by small and (mostly family-owned) medium-sized enterprises.

From 1 May to 31 October 2015, Italy hosted Milan Expo 2015: Feeding the Planet, Energy for Life, a world fair examining the challenges (and solutions) of feeding nine billion people by 2050. It was a well-attended programme.

Trade agreements

Italy is an EU member state. The EU has negotiated and entered various agreements with third states. In addition, Italy itself is a party to several bilateral trade agreements with other states.

Reform

There are no impending developments or proposals for reform of national legislation affecting international trade and commercial transactions.

 

Contracts for the sale of goods

General

2. What is the legal system in your jurisdiction based on (for example, civil law (codified), common law or sharia law)?

The Italian legal system is based on codified laws (civil law) and also subject to EU legislation.

Formation

3. What domestic legislation and international rules apply to a sale of goods contract in your jurisdiction? Are standard international contractual terms commonly used?

Domestic legislation

Most of the commercial relations are regulated by the Italian Civil Code (CC), including contracts for the sale of goods (Articles 1470 to 1547, CC).

Additionally, sales of goods are subject to specific laws, the most important of which are:

  • Law No. 218 of 1995 on the reform of the Italian system of private international law, and the applicable law on contracts.

  • Law No. 206 of 2005 on the sale of goods between businesses and consumers, aimed at ensuring a high-level protection of consumers.

  • Law No. 70 of 2003 on certain legal aspects of information society services, in particular electronic commerce, in the internal market.

International rules

Italy is a party to the following international conventions and is subject to the following European legislation relating to the sale of goods:

  • United Nations Convention on Contracts for the International Sale of Goods 1980.

  • Convention on the law applicable to contractual obligations 1980 (Rome Convention). This establishes uniform rules on the applicable law to contractual obligations. Under the Italian system of private international law, the Rome Convention is applicable to contractual obligations that are not subject to the Rome I provisions (see below).

  • Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I). This sets out the rules on the applicable laws to contractual obligations within the EU.

Standard contractual terms

The Italian system recognises some standardised terms that can serve as guidelines for commercial transactions, to be incorporated into the terms of the contracts, such as the:

  • International Chamber of Commerce (ICC) International Commercial Terms (Incoterms) 2010. Incoterms are official ICC rules that provide a set of international rules for the interpretation of the most commonly used terms in foreign trade.

  • UNIDROIT Principles of International Commercial Contracts.

The use of other international standards is less frequent. Some of these include the:

  • Uniform Customs and Practice for Documentary Credits.

  • Uniform Rules for Demand Guarantees.

 
4. What are the authority/capacity rules for entering contracts, for different commercial entities?

Physical persons

The general rule for entering into a contract under Italian law requires to have full legal capacity and the capacity to act, which is acquired usually on the attainment of the full legal age (18 years) (Article 2, Civil Code (CC)).

Partnerships

Under Italian Law, there are general partnerships (società in nome collettivo) and limited partnerships (società in accomandita semplice). Every partner managing the partnership's affairs is vested with authority to bind the partnership to the extent that their powers permit, unless otherwise indicated in the bye-laws (Articles 2298 and 2318, CC).

Companies

There are limited companies (società per azioni), limited liability companies (società a responsabilità limitata) and limited partnerships by shares (società in accomandita semplice per azioni).

In limited liability companies, any director can act on the company's behalf and bind it legally (Articles 2384, 2455 and 2475-bis, CC). This authority covers all acts relating to the company's purpose. Any limitations on this power (even if resulting from the bye-laws or any decision of the board of directors) are ineffective against third parties acting in good faith.

The authority for entering contracts can be also assigned to other persons through a specific form of power of attorney, known as procura (which must be assigned in the same form as that required for the contract to be concluded by the agent) (Articles 1387, CC).

An agent can only bind the principal if the agent has acted in the name of the principal and was duly authorised. If the agent is not duly authorised, the contract can be ratified by the principal (Article 1399, CC). If the agent has entered a contract that conflicts with the principal's interest, that contract is voidable (Articles 1394 to 1395, CC).

In bankruptcy proceedings, the official receiver appointed by the court is vested with the authority for entering into contracts, in the name of and on behalf of the bankrupted enterprise.

 
5. What are the essential requirements to create a legally enforceable contract?

Substantive requirements

To create a legally enforceable contract, the following key elements must be satisfied (Article 1325, Civil Code (CC)):

  • Agreement between the parties (Article 1326, CC). The offer must identify the subject matter of the contract (that is, the parties must be identifiable, and the goods, their quantity and the relevant price must be determined or at least determinable). The acceptance must match the offer (if the acceptance deviates from the offer, it amounts to a rejection of the initial offer and constitutes a counter-offer).

  • Cause. The contract must be based on a lawful cause; otherwise the contract can be declared null and void (Article 1343, CC). Generally, the cause is defined as the objective function to be performed by the contract according to the intention of the parties.

  • Object. The contract must have a possible, lawful, determined or determinable object (Article 1346, CC).

Formal requirements

Freedom of form applies in principle. However, for some specific contracts, the law may require a written form either:

  • For the purposes of giving evidence (ad probationem) (for example, for a settlement agreement).

  • As a validity requirement (ad substantiam) (for example, in the case of a contract for the purchase of real estate).

Parties can introduce formal requirements into their contractual relationship. In the case of a breach of the agreed requirements, the contract can be declared null.

There is no general language requirement for the validity of a contract, unless otherwise agreed by the parties.

Price and payment

6. If price provisions are not agreed by the parties, does local law impose requirements in relation to price (for example, the time, method and place of payment)?

The price is an essential element of a contract for the sales of goods and it must be determined or at least determinable, otherwise the contract will be considered invalid. All written contracts usually specify the price as well as its method, currency, time and place of payment. However, the price can be determined through an act of evaluation, a deed of assessment or on the occurrence of future events.

If the price is not established in the contract, the Italian Civil Code (CC) provides that (Article 1474, CC):

  • In a contract for the sale of goods, if the price has not been determined and there is no clear mechanism on how to determine the price, and the price has not been established by a public authority, it is assumed that the parties intended to refer to the price normally imposed by the seller.

  • In relation to goods that have a stock market or market value, the price can be deduced from the price lists or the market where delivery takes place, or from the closest market value.

  • The price can be determined by an appointed third party failing the above options.

The buyer must pay the price according to the terms and conditions established in the contract (Article 1498, CC). In the absence of a contractual provision to this effect, payment must be made on delivery of goods, in the place where the transaction was executed. If the price cannot be paid on delivery, the payment must be made at the seller's domicile.

Delivery

7. If delivery provisions are not agreed by the parties, does local law impose requirements in relation to delivery (for example, the time, method and place of delivery)?

Generally, the time, place and method of delivery must be determined in accordance with the terms of the contract. The goods must be delivered in the state they were at the time of sale and, subject to the parties' agreement, they must be delivered together with any accessories and fixtures.

Additionally, regarding the sale of movables, the delivery of the goods must be made in the place where they were at the time of sale, if the parties were aware of it, or at the place where the seller had his domicile or registered office. This applies not only for the sale of specific goods, but also for the sale of stock for which the seller is committed within the limits of available stocks.

Unless otherwise agreed, if the goods sold must be transported from a place to another, the seller is released from its obligation of delivery when remitting the goods to the carrier or freight forwarder.

Passing of title and risk

8. If not agreed by the parties, when does title to the goods pass to the buyer?

As a rule, title to the goods passes on conclusion of the agreement between the parties, expressed in the forms prescribed by the law, and regardless of the payment or delivery of the goods (Article 1376, Civil Code (CC)).

Property in generic goods passes to the transferee only after they have been identified according to the contract. Where the goods are transported to the buyer by an independent carrier, identification usually takes place on delivery to the carrier (Article 1378, CC). Similar rules are applied for the transfer of property of future goods (Article 1472, CC).

 
9. Are retention of title clauses enforceable in your jurisdiction? If so, what are the requirements to create a legally enforceable retention of title clause?

Retention of title clauses are generally allowed under Italian law.

In order to be enforceable vis-à-vis third party creditors and on receivership of the purchaser, retention of title must be documented (in writing) bearing a date certain at law (data certa), which is obtained, for example, by way of notarisation (Article 1524, Italian Civil Code (CC)). In the case of machines, retention of title must be registered at the office court's clerk in the jurisdiction where the machines are located, in order to be enforceable vis-à-vis third party sub-purchasers. For registered movable goods (cars, ships, airplanes), retention of title must be registered on the relevant register.

In addition, Article 11, paragraph 3, of Legislative Decree 231/2002 (which has implemented into Italian law Directive 2000/35 on challenging late payment in commercial transactions (Late Payment Directive)) provides that the retention of title previously agreed in writing by the seller and the purchaser is effective against third party creditors of the purchaser if:

  • The retention of title is confirmed in the individual sale invoices relating to successive supplies of goods.

  • These invoices bear a date certain at law (data certa) prior to any enforcement by third parties.

  • These invoices have been regularly recorded in the accounting entries.

The relationship between the Late Payment Directive and Article 1524 CC is highly disputed. The prevailing view is that the mechanism provided in the Late Payment Directive replaces the mechanism prescribed by Article 1524 CC. There is no relevant case law on this issue.

 
10. If not agreed by the parties, when does risk in relation to the goods pass to the buyer?

Risk of loss and damage passes together with the passing of title (see Question 8). Where generic goods are sold, risk passes when the goods have been identified according to the contract and handed over (Article 1465, Civil Code (CC)).

For international sales of goods, where the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale (Article 67, UN Convention on Contracts for the International Sale of Goods).

Finally, the parties can also rely on the rules provided by Incoterms to define the passing of risk, since these are commonly used as a guide when dealing with international contracts.

Variation and assignment

11. What are the main ways and formalities to transfer contractual rights?

The assignment of a contract (Articles 1406 to 1410, Civil Code (CC)) involves replacing a party by a third party, with the consent of the other party.

The assignment of the contract does not require a specific form. However, an assignment in writing can be required depending on:

  • The nature of the rights transferred (such as the transfer of rights in real estate property).

  • The effect of the assignment (such as a donation).

For a transfer of going concern, contractual rights can be transferred without the acceptance of the other contractor, to the extent that they were not entered into on a fiduciary basis.

 
12. What are the main rules relating to waiver of contractual rights?

A waiver can be effected by the parties' agreement and through a unilateral declaration of the party waiving the right. Under exceptional circumstances (to be examined on a case-by-case basis), a waiver can also be implied by conduct, in accordance with the principle of good faith, if exercising a right in a particular case will amount to an abuse of law.

Enforcement and remedies

13. What are the seller's obligations in relation to the description and quality of the goods?

Italian law does not recognise the concepts of express and implied terms as in English common law.

As a general rule (Article 1476, Civil Code (CC)), the seller must guarantee that the goods are free from third party rights (that is eviction (evizione) (Article 1483, CC)) and from defects that can render the goods unsuitable for their intended use, or considerably decrease their value (Article 1490, CC). Under certain conditions, parties can agree to limit or even exclude this guarantee.

For sales of generic goods, the seller must deliver goods of average quality (Article 1178, CC).

For sales to consumers, the Italian Consumer Code (Law No. 206 of 2005) applies and provides a higher protection to the buyer. In relation to the description and quality of the goods, the seller must deliver to the buyer goods that are fully consistent with the parties' sale agreement. This consistency is assumed in certain cases, including where the goods are suitable for their intended use or have their represented qualities.

The Consumer Code also provides for specific rules applicable to product liability. However, this only applies where the seller is also the manufacturer or the importer of the goods. In addition, product liability legislation only covers situations of personal injury or damage to property.

 
14. What are the different types and legal status of contractual terms in your jurisdiction?

Italian law does not generally recognise specific types of contractual terms or a specific legal status to them. Consequently, the remedies available to a party do not strictly depend on the classification of the term as a condition, warranty or intermediate term.

 
15. What are the key rules on privity of contract and third party rights?

An agreement has the force of law between the contracting parties. It has no effect on third parties except when required by the law, where the third party acquires a right against the promisor due to the conclusion of the contract in its favour.

 
16. What are the rules relating to invalidity, misrepresentation and mistake relating to contracts?

Italian law distinguishes two general types of invalidity, namely nullity (nullità) and annulment (annullabilità).

Nullity (Article 1418, Civil Code (CC)) is the most severe form of invalidity, and applies in the following cases:

  • Structural deficiency, that is:

    • lack or initial impossibility of a constituent element; or

    • absence of the necessary legal requirements, resulting in ineffectiveness.

  • Social harmfulness and illegality.

  • Legal fraud.

Nullity can be enforced by any person and the relevant action is not subject to any time restriction.

Annulment (Article 1425, CC) is a general judicial remedy for the protection of a party that has not expressed the required consent. This remedy can be enforced only by the injured party and is subject to a time restriction of five years.

Annulment is applicable where consent has been vitiated, for example where consent has been procured by mistake, violence or wilful deceit.

Mistake is a false representation of the real purpose of the contract or of its conditions. It can cause annulment of the contract when it is material and recognisable by the other party.

Violence can constitute a threat that forces the person to enter into an unwanted contract or to agree to a particular term in the contract that they would not ordinarily agree to. Violence occurs if the victim was threatened with harm to life, honour or property. The threat can be directed at either the party himself or close persons.

Wilful deceit is any form of deception that alters the contractual will of the victim.

 
17. What are the main performance and discharge rules relating to contracts?

When establishing a contractual relationship, the parties have the general duty to act in good faith, from the beginning of the negotiations through to the performance of the contract (Article 133, Civil Code (CC)). In addition, the good faith requirement also applies to the interpretation and execution of the contract (Articles 1366 and 1375, CC).

Under Italian law, general discharge rules are as follows:

  • Termination by agreement: parties are free to terminate the contractual relationship (Article 1372, CC).

  • Termination for breach by one of the parties (Article 1453, CC): where one party fails to perform obligations. As a general rule, the breach must be of a certain seriousness.

  • Termination for supervening impossibility: the impossibility of performance by one party for reasons beyond their control (Articles 1463 to 1466, CC)

  • Excessive burden: excessive burden disproportionate to the other party's obligations (Articles 1467 to 1469, CC).

 
18. What are the main remedies and rules for losses and damages for breach of a sale of goods contract?

Damages for breach of contract are available under Italian Law (Article 145, Civil Code (CC)). Damages are seen as a form of compensation and are available jointly with the remedies of performance and termination. Damages can be classified as either:

  • Actual damages suffered (danno emergente).

  • Expectation loss (lucro cessante).

In awarding damages, the courts will assess whether the damage is foreseeable, immediate and a direct consequence of the breach (Articles 1223 to 1225, CC). However, damages can extend to unusual or exceptional losses where the breach was deliberate. If a loss cannot be precisely established, damages are subject to equitable compensation (Article 1226, CC)

For sales of defective goods, the seller must pay the buyer damages (including for damages deriving from the defects of the goods), unless the seller proves that he acted without fault (Article 1494, CC). Claim for damages can be made along with any other legal remedy selected by the buyer, subject to applicable time limits (see Question 19).

Damages are also due to the buyer in the case of third party rights over the goods sold (Article 1483, CC).

 
19. What are the buyer's remedies for breach of a sale of goods contract?

For sales of defective goods, the buyer can seek the following remedies (Article 1492, Civil Code (CC)):

  • Termination of the agreement (actio redhibitoria).

  • Reduction of the purchase price (actio estimatoria). If termination of the agreement is excluded for certain kinds of defects, the buyer can ask only for a price reduction.

  • Damages (see Question 18).

If the buyer seeks to terminate the agreement, the seller must also reimburse the purchase price to the buyer and all expenses lawfully incurred by the buyer in connection with the purchase of the goods. However, the buyer must return the purchased goods.

To enforce these remedies, the buyer, under penalty of forfeiture, must make a claim within eight days of the discovery of any defects, unless the law or the parties provide for a different term. In any case, the remedies are subject to a time limitation of one year, beginning on the date of delivery of the goods (Article 1495, CC).

For sales of defective goods to consumers, the consumer can request the repair or replacement of the product, unless one of these remedies is objectively impossible or too expensive (Italian Consumer Code (Law No 206/2005)). In addition, the consumer can request a price reduction or the termination of the contract where:

  • The repair or replacement is impossible or too expensive.

  • The seller did not provide the repair or replacement within an appropriate period.

  • The replacement or repair made previously has caused significant inconvenience to the consumer.

 
20. What are the seller's remedies for non-payment or late payment?

Where a buyer has, in breach of contract, either not paid or only partly paid for goods, the seller has the right to make a claim for the contract price. In the case of late payment for goods under a contract between two businesses, the seller can also claim penalties and interest at a rate of 8.05%, from November 2015 (Law No. 231/2002 implementing Directives 2000/35/EU and 2011/7/EU on combating late payments in commercial transactions).

The seller can also suspend the performance of his contractual obligations claiming the default of the buyer (exceptio inadimpleti contractus) (Article 1460, CC).

Exclusion of liability

21. What are the main rules relating to excluding contractual liability? Are exclusion clauses enforceable in your jurisdiction? If so, what are the requirements to create a legally enforceable exclusion clause?

Clauses establishing an exclusion of contractual liability are lawful and enforceable, unless they concern liability for gross negligence, wilful misconduct or are contrary to public order provisions (Article 1229, Civil Code (CC)).

For general standard conditions or standard form contracts prepared by one of the contracting parties, exclusion clauses are not binding on the other party, unless specifically approved in writing by that party (Articles 1341 to 1342, CC). However, these provisions are generally considered inapplicable in international contracts.

In contracts with consumers, clauses excluding contractual liability are generally invalid (Article 33, Italian Consumer Code).

Choice of law

22. Will local courts recognise a choice of foreign law in a sale of goods contract? Are there any mandatory local rules that apply, despite a choice of foreign law?

Choice of law clauses are generally admitted and enforceable both under Italian law (Article 57, Law No. 218 of 1995) and EU law (Article 3, Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I)).

However, the application of any law chosen by the parties can be refused if such application is incompatible with Italian public policy (Article 16, Law No. 218 of 1995; Article 21, Rome I).

Despite the law chosen in the contract, in certain consumer contracts, a choice of law cannot deprive a consumer of the protection afforded to him by provisions that must not be derogated by agreement when, in the absence of a choice, the law of the country in which the consumer has his habitual residence would be applied.

 
23. If the parties do not make a choice of law, what rules determine the law applicable to a sale of goods contract?

If the parties do not choose the applicable law, a contract for the sale of goods will be governed as follows:

  • Within the EU, by Regulation (EC) 593/ 2008 on the law applicable to contractual obligations (Rome I). The applicable law will be that of the country where the seller has his habitual residence (Article 4, Rome I). For companies and associations, the habitual residence is the place where they have their central administration. For an individual who is acting in the exercise of his business activity, the habitual residence is his principal place of business (Article 19, Rome I). If the habitual residence of the seller cannot be determined, the contract must be governed by the law of the country with which the seller is most closely connected. However, if from the circumstances of the case, it is clear that the contract is manifestly more closely connected with a different country from that of the law chosen in the contract, the law of that other country will be applied (Article 4(3), Rome I).

  • Outside the EU, the applicable law will be that of the country with which the transaction is most closely connected (Article 57, Law No. 218 of 1995 implementing the Rome Convention on the law applicable to contractual obligations). It is presumed that the contract is most closely connected with the country where the party who is to effect the performance that is characteristic to the contract has, at the time of conclusion of the contract:

    • his habitual residence; or

    • in the case of a body corporate or unincorporate, its central administration.

As a general rule, in a contract of sale, the seller effects the characteristic performance, and therefore its domestic law will apply.

Choice of jurisdiction

24. Will local courts recognise a choice of foreign jurisdiction in a sale of goods contract? Are there any mandatory local rules that apply, despite a choice of foreign jurisdiction?

Choice of forum clauses are generally admitted and enforceable both under Italian law (Article 4, Law No. 218 of 1995) and EU law (Article 25, Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation)).

The jurisdiction chosen must be exclusive, unless otherwise agree by the parties (Article 25, Recast Brussels Regulation). A valid jurisdiction agreement must satisfy any of the following conditions:

  • Concluded in writing or evidenced in writing.

  • In a form which accords with practices that the parties have established between themselves.

  • In international trade, in a form according to a usage of which the parties are or should have been aware and which, in this context, is widely known and regularly observed by parties to contracts of the type involved in the trade concerned.

 
25. If the parties do not make a choice of jurisdiction, what rules determine the jurisdiction applicable to a sale of goods contract?

If the parties do not choose a jurisdiction, a contract for the sale of goods will be governed as follows:

  • Within the EU, unless agreed otherwise, a person domiciled in a member state can be sued or sue in another member state in matters relating to a breach of contract, if the place of performance of the relevant obligation under the contract is located in another member state (Article 5(1), Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). Article 5 provides that the place of performance in sales of goods is the place where goods were delivered, or should have been delivered.

  • Outside the EU, the jurisdiction of the Italian courts will prevail in the following cases (Articles 3 to 4, Law No. 218 of 218):

    • when the defendant is resident in Italy or has a representative in Italy, or in other cases provided by law; or

    • according to the criteria set out in the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968.

Arbitration

26. Are arbitration clauses commonly included in sales of goods contracts in your jurisdiction?

Arbitration clauses are sometimes included in sale of goods contracts and are, subject to their drafting, generally recognised by Italian courts.

Italy is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).

 

Storage of goods

27. How is title to goods in storage protected and evidenced? Are warehouse receipts recognised as documents of title in your jurisdiction?

Temporary storage of goods and custom warehouses matters are regulated by Regulation (EEC) 2913/92 establishing the Community Customs Code.

The new Union Custom Code, approved by Regulation (EU) 952/2013, which will replace Regulation (EEC) 2913/92, will come into force on 1 May 2016. In addition, the storage of goods is regulated on a national level by D.P.R. 43/1973, as modified by D.lgs. 59/2010 (TULD).

A warehouse receipt under Italian law is a document issued by the warehouse where the goods are stored, which describes the goods and identifies the person that has the right of possession of the goods. Warehouse receipts are not recognised as documents of title, and are therefore non-negotiable.

A warehouse receipt cannot be used to transfer ownership of the goods, and the only person allowed to dispose of the goods is the person specifically identified by the receipt.

Italian law recognises other kinds of documents of title, which gives to the bearer the possession of the goods in the warehouse and which can be used to transfer ownership, such as (Articles 1992 to 2000, Civil Code (CC)):

  • Fede di deposito warrant : a document issued by a warehouse on request of the depositor (Article 1790, CC).

  • Bill of lading: a typical negotiable document that evidences the contract of carriage and confers ownership of the goods to the bearer of the bill.

 
28. What conditions and formalities must warehouse receipts comply with?

See Question 27.

Pursuant to the Code of Maritime Law (Regal Decree No. 327), a bill of lading must include the (Article 460, Code of Maritime Law):

  • Ocean vessel and voyage number.

  • Place and date of loading.

  • Subscription of the issuer.

  • Name, surname, name of the company and domicile of the carrier.

  • Name, surname, name of the company and domicile of the shipper.

  • Place of destination.

  • Nature and quantity of the goods.

  • Condition of the goods and the packaging.

Pursuant to Article 1790 of the Civil Code, the Fede di deposito must include the following information:

  • The name, surname, name of the company and domicile of the declarant.

  • The place of deposit.

  • The nature and quantity of the goods, indicating other details able to identify them.

  • If the customs duties were paid for the goods and if these were insured.

 
29. Are other interests over goods in storage recognised?

Article 2761 of the Italian Civil Code (CC) establishes a general privilege, which is a right of priority in favour of the depositary on the goods stored in the warehouse.

A creditor has a general right to hold the goods as a bailee and the debtor can store the good(s) until the credit has been paid up (Article 2756, CC). In addition, if the credit is not paid up, the creditor can sell the goods under the rules governing pledges.

 

Imports

Customs authority

30. What is the authority responsible for enforcing customs laws and regulations? Are certain goods subject to specific examination procedures?

The authority responsible for enforcing customs law and regulations is the Customs Agency (Agenzia delle Dogane). It is part of the Ministry for Economic and Financial Affairs. The Customs Agency is a non-economic public body established by Legislative Decree No. 300 of 1999.

As a customs authority ensuring full compliance with EU legislation, the Customs Agency carries out control activities, assessment and verification with regards to circulation of goods and internal taxation related to international exchange. It also verifies and controls the exchange, production and consumption of products and natural resources subject to excise duties. Additionally, the Customs Agency:

  • Fights against tax-related offences.

  • Tackles illicit activities, such as illegal trade of:

    • counterfeit products;

    • products that do not comply with health and safety legislation;

    • arms;

    • drugs;

    • items of cultural heritage;

    • waste; and

    • endangered animal and plant species.

Violations of customs requirements can be subject to administrative and/or criminal sanctions.

Import duties, tariffs and rates

31. What are the main customs import tariffs and duties?

General tariffs and rates

Italy is part of the EU. Therefore, since the creation of the internal market, goods can circulate freely between member states. While the principle of free movement of goods apply within member states of the Customs Union, the European Community Common Custom Tariff applies to the import of goods from third countries, enabling the application of uniform customs duties, whichever member state is the country of destination.

The tariff is common to all EU member states, but the rates of duty differ depending on the goods and where they come from. The rates also depend on the economic sensitivity of products.

Rates can vary considerably depending on whether the imported product is bulk, unprocessed or ready for consumption in retail packages. VAT must be added to the cost, insurance and freight (CIF) value of the import. The standard rate is 22%, but a reduced rate of 4% applies to essential items.

All EU customs tariff measures applied on the basis of the common nomenclature are set out in the integrated tariff of the European Union (TARIC) established under Regulation (EEC) 2658/87.

Specific information on tariffs applied by the EU can be found on the official EU website on the TARIC code. The TARIC can be searched by country of origin, harmonised system code, and product description on the interactive website of the Directorate-General for Taxation and the Customs Union.

Existing restrictions are intended to protect the EU economy, so that the importation of certain items requires advance authorisation.

Preferential tariffs

The EU has signed reciprocal preferential agreements with various countries, for both imports to and from the EU, and non-reciprocal agreements, under the generalised system of preferences (GSP).

The EU has also entered into various bilateral and multilateral free trade and partnership agreements.

Non-tariff barriers to imports

32. Are there non-tariff barriers to imports into your jurisdiction?

As a member of the EU, Italy applies EU regulations, which are applicable throughout the EU. 

Non-tariff barriers to imports derive from both national and EU regulations.

The EU has mostly a liberal foreign trade policy, although some restrictions are applied for certain types of products (for example, agricultural products).

At the EU level, the following goods are, among others, subject to non-tariff import restrictions and intra-EU transfer restrictions:

  • Endangered species (Regulation (EC) 338/97).

  • Waste (Regulation (EC) 1013/2006).

  • Chemicals (Regulation (EC) 1272/2008).

 
33. Can customs decisions and import restrictions be challenged?

Presidential Decree No. 43/1973 (Testo Unico della Legislazione Doganale) (TULD), as modified by Law No. 212/2000 and Legislative Decree No.374/1990, sets out a specific review procedure, both at an administrative and judicial level.

The administrative procedure provides that an operator that has an interest in a decision of the Customs Authority can file its observations directly to the local authority office where the dispute has arisen, requesting the review of the decision (Article 65, TULD).

The operator can also decide to take the dispute before the tax court (Direzione Regionale dell'Agenzia delle Dogane) to obtain a judicial review of the decision. Appeals can be brought before the Tax Commissions and, finally, before the Supreme Court. This procedure is regulated by Legislative Decree No. 546/1992.

National courts can apply to the Court of Justice of the European Union for a preliminary ruling (Article 267, Treaty on the Functioning of the European Union) if the issue before them concerns a matter of interpretation of EU law.

It is advisable for operators to seek an administrative review of the decision before going to the tax courts. Once the 30-day time limit to seek an administrative review has expired, judicial review remains the only way to challenge the Customs Agency decisions (Article 66, TULD).

 

Trade remedies

Regulatory framework

34. What are the main regulations and authorities responsible for investigating and deciding on trade remedies?

Regulatory framework

Italy is part of the EU, and both Italy and the EU are part of the WTO. Therefore, trade remedies are regulated by:

  • Regulation (EC) 1225/2009 on protection against dumped imports from countries not members of the European Community.

  • Regulation (EC) 597/2009 on protection against subsidies imports from countries not members of the European Community.

  • Regulation (EC) 260/2009 on the common rules for imports (related to imports from WTO Members).

  • Regulation (EC) 625/2009 on common rules for imports from certain third countries (related to imports from non-WTO Members).

  • Regulation (EC) 427/2003 on a transitional product-specific safeguard mechanism for imports originating in the People's Republic of China and amending Regulation (EC) 519/94 on common rules for imports from certain third countries.

These regulations implement the agreements developed by the WTO, that is the:

  • Anti-dumping Agreement.

  • Agreement on Subsidies and Countervailing Measures.

  • Safeguards Agreement.

The regulation of free competition is governed by Law No. 287/1990, as amended.

For further information see: www.agcm.it.

Italy is also subject to EU competition law, which can be investigated and enforced by the European Commission.

Regulatory authority

Trade remedy investigations and review are conducted by the Directorate-General for Trade of the European Commission.

Anti-dumping and subsidy investigations can be initiated ex officio or on request. The European Commission is also responsible for enforcing EU competition and merger control rules.

The Customs Authority is responsible for the collection of duties and tariffs on importation and for investigations of potential infringements.

The authority responsible for the enforcement of competition laws in Italy is the Italian Competition Authority (Autorità Garante della Concorenza e del Mercato) (AGCM). The Italian Competition Authority is responsible for detecting:

  • Agreements restricting competition.

  • Abuses of dominant position.

  • Merger operations involving the creation or strengthening of dominant positions in ways that eliminate or substantially reduce competition on a lasting basis.

The Competition Authority can also intervene in matters regarding abuses of economic dependence, and can issue warnings and impose penalties provided by the Competition Act "against any company or companies found liable for abuse of economic dependence which is relevant to the protection of competition and the free market" (section 11(2), Law No. 57/2001).

Investigations and enforcement

35. What are the requirements and procedure to start trade remedies investigations?

Any natural or legal person, or any association not having legal personality, acting on behalf of the Community industry can ask the European Commission or the Directorate-General for Trade to start a trade remedies investigation (Regulation (EC) 225/2009; Regulation (EC) 597/2009). The operators can address the Customs Authority, which will forward the complaint to the competent authority. The European Commission can also start an investigation ex officio.

The Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) can start an investigation resulting from a complaint regarding a conduct deemed to be in violation of competition law. The complaint can be filed by:

  • An undertaking that considers its interests damaged by that conduct.

  • A public agency.

  • Private individuals, through a written complaint to the Authority (but not anonymously).

All complaints are acknowledged.

The Competition Authority can also initiate its own investigations, whether or not a complaint has been lodged, if it suspects that some particular line of conduct is damaging to competition.

Appeals

36. Is there a right of appeal against the authority's decision? What is the applicable procedure?

Trade remedies decisions and regulations can be challenged before the Court of Justice of the European Union (Article 263, Treaty on the Functioning of the European Union).

Parties can appeal the decisions of the Italian Competition Authority to the Latium Regional Administrative Tribunal (Tribunale Amministrativo del Lazio), regarding the enforcement of competition law. Further appeals can be brought before the State Council (Consiglio di Stato).

 

Exports

Regulatory framework

37. What are the main requirements to export goods from your jurisdiction?

Italy is a member state of the EU. Therefore, the main instruments setting out import and export rules are:

  • Regulation No. 2913/92 establishing the Community Customs Code.

  • Regulation (EEC) 2454/93 laying down provisions for the implementation of the Community Customs Code.

From 1 May 2016, the new Union Customs Code (Regulation No. 952/2013) will come into force.

 
38. Are certain categories of goods subject to specific export quotas, restraints or other controls?

There are specific restraints on the export and intra-EU transfer of various goods, such as:

  • Dual-use items and technology (Regulation (EC) 1334/2000).

  • Cultural goods (Regulation (EEC) 3911/92).

  • Dangerous chemicals (Regulation (EC) 304/2003).

Licensing can be requested for particular types of goods under national or EU regulation.

Under the EU new approach to technical harmonisation, certain products must meet specific quality standards. The provisions apply to:

  • Toy safety.

  • Machinery.

  • Electromagnetic compatibility.

  • Telecommunications terminal equipment.

  • Active implantable medical devices.

  • Medical devices.

  • Non-automatic weighing equipment.

  • Construction products.

  • Explosion proof electrical equipment.

  • Low voltage electrical equipment.

  • Simple pressure vessels.

  • Personal protection equipment.

  • Gas appliances.

Qualified products must carry a CE mark to show their compatibility, which must be fixed onto the product by a manufacturer or importer, as a self-declaration of compliance.

Penalties

39. What are the consequences of non-compliance with export regulations?

Violations of export regulations can be subject to administrative and/or criminal sanctions.

 

International trade restrictions

Trade sanctions

40. Are there specific restrictions on trade with certain jurisdictions?

Article 215 of the Treaty on the Functioning of the European Union (TFEU) provides a legal basis for the interruption or reduction, in part or completely, of EU's economic and financial relations with one or more third countries, where such restrictive measures are necessary to achieve the objectives of the Common Foreign Security Policy (CFSP). Regulations are directly applicable in all EU member states.

Italy, as part of the EU, has imposed various embargoes and sanctions against third countries.

 
41. What is the authority responsible for imposing trade restrictions?

Italy is a member of the:

  • EU.

  • World Trade Organization (WTO).

  • Organisation for Economic Co-operation and Development (OECD).

  • Organization for Security and Co-operation in Europe (OSCE).

  • North Atlantic Treaty Organization (NATO).

The majority of trade restrictions are regulated by these bodies.

 
42. What are the consequences of non-compliance with trade restrictions?

Violations of trade restrictions and export controls can be subject to administrative and/or criminal sanctions.

 
43. Are businesses subject to specific compliance requirements? What practical steps should a business take to ensure compliance with trade restrictions?

As a member of the EU, Italy has imposed various embargoes and sanctions against third countries (see Question 40).

Any Italian natural and legal persons must comply with customs and trade regulations, and ensure that they do not violate existing trade sanctions.

Trade compliance programmes, regular staff training sessions and high-quality legal advice can be helpful to comply with trade restrictions.

Foreign trade barriers

44. What is the procedure for local exporters to complain against foreign trade barriers contrary to the WTO or other trade agreements?

The complaint procedure against foreign trade barriers is regulated by Regulation (EC) 3286/94.

Any natural or legal person, or any association not having legal personality, acting on behalf of a Community industry, which considers that it has suffered injury as a result of obstacles to trade that have an effect on the market of the Community can lodge a written complaint.

The complaint must contain sufficient evidence of the existence of the obstacles to trade and of the resulting injury. The complaint must be submitted to the European Commission. If necessary, the Commission can consult the WTO.

 

The regulatory authorities

Italian Customs Agency (Agenzia delle Dogane e dei Monopoli)W www.agenziadoganemonopoli.gov.it/wps/wcm/connect/Internet/ed/

Principal responsibilities. The Customs Agency controls activities, the assessment and verification of goods circulation and internal taxations relating to international exchange. The Customs Agency also verifies and controls the exchange, production and consumption of products and natural resources subject to excise duties.

Italian Competition Authority (Autorità Garante della Concorrenza e del Mercado) (AGCM)

W www.agcm.it

Principal responsibilities. The Italian Competition Authority protects consumers from misleading advertising, comparative advertising that can potentially discredit competitors' products or cause confusion, as well as unfair commercial practices among undertakings. The Authority also enforces rules against conflicts of interest for government officials.

The Ministry of Foreign Affairs and International Co-operation

W www.esteri.it/mae/en

Principal responsibilities. The Foreign Ministry is responsible for the state's functions, tasks and duties in matters concerning Italy's political, economic, social and cultural relations with other countries. Its duty is to ensure that the international and European activities of other Italian ministries and government offices are consistent with the country's international policy objectives.

Chamber of Commerce (Camera di commercio)

W www.camcom.gov.it

Principal responsibilities. The Chamber of Commerce is in charge of regulation market functions, aimed at stimulating and supporting a great transparency in contractual relationships among enterprises and between them and the citizens. The chamber's traditional functions refer to the Trade Register, and related activities/services.


Online resources

EUR-Lex

W http://eur-lex.europa.eu/homepage.html?locale=it

Description. EUR-Lex provides free access, in the 24 official EU languages, to the Official Journal of the European Union; EU law (EU treaties, directives, regulations, decisions, consolidated legislation, and so on); preparatory acts (legislative proposals, reports, green and white papers, etc.); EU case-law (judgements, orders, etc.); international agreements; EFTA documents; other public documents.

Official Gazette

W www.gazzettaufficiale.it/

Description. This site provides free access, in the original language, to Italian (and regional) laws (laws, decrees, regulations, etc.), Italian and EU case-law (judgements, orders, and so on), subscribed international agreements and other public documents.



Contributor profiles

Carlo Scarpa, Partner

Tonucci & Partners

T +39 04965 8655
F +39 04987 87993
E cscarpa@tonucci.com
W www.tonucci.com

Professional qualifications. Italy, Solicitor, 1990; admitted to the Italian Cassation Court, 2009

Areas of practice. International trade law; corporate and commercial law; mergers and acquisitions; shares; IT law; IP law; FIDIC contracts.

Languages. English, Spanish

Professional associations/memberships. Padua Bar Association.

Publications.

  • "Becoming international", Co-author in the research made in collaboration with "CUOA International Business Post-Graduate School" on the North – Italian SME strategies to develop internationally (2013 to 2014).

  • "Contracts and transfer pricing" by Padua Chartered Accountants Association.

Alessandro Vasta, Partner

Tonucci & Partners

T +39 0496 58655
F +39 0498 787993
E avasta@tonucci.com
W www.tonucci.com

Professional qualifications. Italy, Solicitor, 1994; admitted to the Italian Cassation Court, 2012

Areas of practice. International trade law; corporate; mergers and acquisitions; IP law; IT law and data protection.

Languages. English, French

Professional associations/memberships. Padua Bar Association.

Publications.

  • "Becoming international", Co-author in the research made in collaboration with "CUOA International Business Post-Graduate School" on the North – Italian SME strategies to develop internationally (2013 to 2014).

  • "Data Protection in Italy" Practical Law, Multi-Jurisdictional Guide (2012 to 2013).

  • "Tax Agreement in Great Britain", in "Rivista di Diritto Tributario".

Ivan Rigatti, Senior Associate

Tonucci & Partners

T +39 0496 58655
F +39 0498 787993
E irigatti@tonucci.com
W www.tonucci.com

Professional qualifications. Italy, Solicitor, 2004

Areas of practice. International trade law; corporate and commercial law; mergers and acquisitions.

Languages. Italian, English

Professional associations/memberships. Padua Bar Association.

Nicola Sandon, Trainee Lawyer

Tonucci & Partners

T +39 0496 58655
F +39 0498 787993
E nsandon@tonucci.com
W www.tonucci.com

Professional qualifications. Italy, Trainee Lawyer, 2015

Areas of practice. Corporate and commercial law; financial markets law.

Languages. Italian, English

Professional associations/memberships. Padua Bar Association.


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