The odyssey of the exclusive right of use

The exclusive right of use is a right that arose in the 1960s from notarial practice as a solution to a market need not yet covered by the legislature.

These were the years when, in large cities such as Milan, the population increase in urban areas brought a necessary fractionation of properties and the creation of common areas such as parking lots, gardens and condominium courtyards. This is how, for the first time, a part of the building that is owned by the entire condominium and those who live there is granted in exclusive right to use it.

The first questions arise: what is it? A prior easement? An atypical real right? A right of use? Is it a perfectly transferable right? Is it perpetual or not?

An answer to all these questions was given by the Supreme Court in United Sections in Judgment No. 28972 of 2020, as a reaction to the large real estate transactions that have caused increasing uncertainty in the world of law since 2000.

The case narrated in the Judgment concerns the co-ownership of a building consisting of three units for commercial use on the ground floor, three units for residential use on the second floor, a backyard and an area in front of the commercial premises. With the division of the building, exclusive use of the portions of the front courtyard was assigned to the stores located on the ground floor.

Following the dissolution of the community and the sale of part of the building, subsequent successors sued the owner of the stores, who appropriated the front court and built a building on the court.

Let's take a step back: it was already known before the Judgment, that exclusive use did not affect the ownership of the common parts, which by definition are the property of the condominium, but rather the allocation of the related faculties of enjoyment among the condominiums. Some common parts, in other words, are configured as common to some more than to others, depending on their geographical location.

It is precisely in this circumstance that the Supreme Court, with a complete revirement, pronounces on the nature of the right of exclusive use, clarifying that it is not an atypical real right as previously thought, but rather an obligatory relationship, valid only between the original contracting parties - non-transferable and therefore devoid of real effectiveness. The effect generated is the nullity of the transfer of the property between successive owners.

The arguments of the Judgment start from the conception of use of the common thing in the condominium context, specifying that "use is one of the ways through which the right can be exercised, and forms an intrinsic and characterizing part, the essential core of its content".

The Court in other words affirms that the clause through which the exclusive use of an area is granted to an individual real estate unit has spread through the negotiation practice, particularly notarially, theorized in order to solve cadastral problems in the course of litigation in which the ownership in the head of a condominium of the portion of a common part was disputed, pursuant to Article 1117 cc.

First, the Supreme Court reviews everything that exclusive use is not, completely demolishing the approach previously given by the Notariat.

In fact, exclusive use, as a connotation of the right of ownership under Art. 832 cc, is not referable to the right in rem of use under Art. 1021 cc. of which the exclusive use of a common part in the condominium does not mutate the limits of duration, transferability and manner of extinction.

The right of exclusive use is not even classifiable among the easements of prior use, since the conformation from the easement, which can be shaped according to the most varied uses, can never result in a general right of enjoyment of the servant fund, since this would result in the emptying of the property of it in its fundamental core.

Nor is the right of exclusive use configurable as a product of bargaining autonomy: this is because of the principle of typicality and the "numerus clausus" of real rights, under which only the Law can establish figures of real rights and private individuals cannot affect their content.

Ultimately, after a lengthy analysis, the Supreme Court affirms the following principle of law: "The agreement having as its object the creation of the so-called 'real right of exclusive use' over a portion of the condominium courtyard, constituting as such a common part of the building, aiming at the creation of an atypical figure of limited real right, such as to affect, depriving it of concrete content, the essential core of the condominium owners' right of equal use of the common thing, enshrined in Article 1102 of the Civil Code, is precluded by the principle, inherent in the codictic system, of the numerus clausus of real rights and the typicality of them".

Article 1102 cc - in fact - reiterates the general principle that condominiums may not prevent others from making equal use according to their right: it prohibits the total impairment of the enjoyment due to the condominiums over the common thing, however, it does not exclude the possibility of a more intense use by one condominium owner than the others.

The Supreme Court affirms that in order to understand the fate of the negotiated title that provides for the right of exclusive use, it is necessary first of all to adhere to the literal meaning of the text (which undoubtedly deposes against the interpretation of the act as directed to the transfer of ownership) and also to investigate the will of the parties, making express reference to Article 1362 of the Civil Code.

It is therefore necessary to analyze the will of the original owner, in order to investigate whether the will at the time of the establishment of the condominium was limited to the attribution of exclusive use, reserving ownership to the alienator, or was directed to the transfer of ownership of an appurtenance.

In other words, our right is nothing more than a covenant, a transaction or an agreement through which the Parties aim at the creation of the right of exclusive use, that is, the granting of perpetual use of a mandatory nature, having value only inter partes and not erga omnes.

Italian Privacy Authority considers "personalized" advertising based on legitimate interest unlawful and TikTok adapts

Last June, TikTok publicly announced that it would soon begin sending, to its users over 18 years of age, advertising based on behavioral profiling while browsing on the platform, without requesting consent from the data subjects, using the legal basis of the legitimate interest of the owner (i.e., Dublin-based TikTok Technology Limited itself).

In the measure adopted as a matter of urgency on July 7, the Privacy Guarantor had warned TikTok that such processing activity would be unlawful, not under the GDPR (European Privacy Regulation), but contrary to Article 5(3) of the e-privacy Directive (Directive on privacy and electronic communications) and Article 122 of the (Italian) Privacy Code. In fact, according to the Garante, the storage of information, or access to information already stored, in the terminal equipment of a subscriber or user expressly requires as a legal basis the exclusive consent of the same.

In the notice, the Privacy Guarantor, in light of the inability of TikTok (and other social networks) to identify those of legal age, had highlighted the risk that advertising could also reach minors.

The violation of the ePrivacy Directive allowed the Garante to take direct and urgent action against TikTok, outside of the international cooperation procedure under the GDPR. At the same time, however, the Authority had informed the Data Protection Commission of Ireland (the Irish Privacy Authority), the country where TikTok has its main establishment, and the European Data Protection Board.

TikTok currently indicates in its privacy policy (viewed on September 13) that personalized advertisements based on user activity on and off the platform will be shown with user consent (https://bit.ly/3xkqC5e).

TikTok, responsibly, has therefore deferred personalized advertising based on legitimate interest.

Call for Trademarks 2022

DEADLINE : Desk opening from 9:30 a.m. Oct. 25, 2022 and until available resources are exhausted

AVAILABLE FUNDS: 2 Million Euros.

A share equal to 5 percent of the available financial resources is earmarked for the granting of facilities to proponents who, at the time of submitting the application for access to facilities, are in possession of the legality rating.

BENEFICIARIES and ELIGIBILITY REQUIREMENTS.

  • MPMIs - Micro, Small and Medium Enterprises
  • With registered and operational headquarters in Italy
  • That are properly incorporated, registered in the Companies Register and active
  • that are not in a state of liquidation or dissolution and subject to bankruptcy proceedings
  • That are owners of the trademark objects of the application

Facilities aimed at facilitating the registration of Community trademarks with the EUIPO (European Union Intellectual Property Office) and the registration of international trademarks with the WIPO (World Intellectual Property Organization).

The program includes two lines of intervention:

  • MEASURE A Measure B - Facilities to facilitate the registration of European Union trademarks with the EUIPO through the purchase of specialized services.
  • MEASURE A Measure B - Facilities to facilitate the registration of international trademarks with WIPO through the purchase of specialized services.

MEASURE A

Eligibility Requirements:

  • Having carried out, from June 1, 2019, the filing of the application for registration with EUIPO of the facilitated trademark and having complied with the payment of the relevant filing fees;

ALSO

  • Have obtained registration, with EUIPO, of the European Union trademark that is the subject of the application. Such registration must have occurred on a date prior to the submission of the application;

For Measure A, the facilities are granted to the extent of 80% of eligible expenses incurred for filing fees and eligible expenses incurred for the acquisition of specialized services and in compliance with the maximum amounts provided for each type and in any case within the maximum total amount per trademark of €6,000.00.

MEASURE B

Eligibility Requirements:

Having carried out, as of June 1, 2019, at least one of the following activities:

  • The filing of the application for registration with WIPO of a nationally registered trademark with UIBM or a European Union trademark registered with EUIPO and having complied with the payment of the relevant registration fees;
  • The filing of the application for registration with WIPO of a trademark for which an application for registration has already been filed with UIBM or with EUIPO and having complied with the payment of the relevant registration fees;
  • The filing of the application for subsequent designation of a trademark registered with WIPO and having complied with the payment of the relevant registration fees;

ALSO

  • Having obtained the publication of the application for registration in the WIPO International Register (Madrid Monitor) of the trademark applied for. The publication of the trademark application on the WIPO International Register must have occurred on a date prior to the submission of the application.

For Measure B, facilities are granted to the extent of 90% of eligible expenses incurred for the acquisition of specialized services and registration fees in compliance with the maximum amounts provided for each type and in any case within the maximum total amount per trademark of 9,000.00 euros.

For Measure B, for international registration applications filed as of June 1, 2019 for the same trademark, it is possible to make subsequent designations of additional countries; in this case the facilities are cumulative up to the maximum amount per trademark of €9,000.00.

For Measure B, for international registration applications filed before June 1, 2019, it is only possible to request facilitation for subsequent designations made after June 1, 2019, in which case the maximum amount of facilitation per trademark is € 4,000.00.

Each company may submit multiple applications for facilitations, for both Measure A and Measure B, up to a total value of € 25,000.00.

For the same trademark it is possible to cumulate the facilitations provided for Measures A and B (if in Measure B the European Union is not indicated as the designated country) in compliance with the maximum amounts indicated per trademark and per enterprise. For the same trademark, it is possible to apply for both Measure A and Measure B relief in a single application.

If an enterprise can apply for facilitation for more than one trademark, an application must be submitted for each of them, otherwise the application will be inadmissible.

The facilities under this Notice cannot be combined, for the same eligible expenses or part thereof, with other state aid or aid granted under de minimis or facilities financed with EU resources (e.g. EUIPO - IDEAS POWERED FOR BUSINESS). However, up to 100 percent of the expenses actually incurred, the facilities are available together with all general measures, including fiscal measures, which are not state aid and are not subject to the rules on cumulation.

APPLICATION SUBMISSION

  • The application is filled out exclusively through the computer procedure and in the manner indicated at [www.marchipiu2022.it].
  • The application is submitted from 9:30 a.m. on October 25, 2022 and until the available resources are exhausted.
  • The application for participation, generated by the IT platform must be digitally signed by the legal representative of the company requesting the facilitation or by the delegated special attorney on the basis of special power of attorney.

Clovers remains at the disposal of clients to provide all the advisory work.

Transparency Decree: Legislative Decree No 104/2022

With the entry into force of the recent Legislative Decree No 104/2022 all employees will have to be informed, in writing, about the main elements of the employment relationship and the individual, collective and company contract applied.

The Legislative Decree No 104/2022 will be applied to any employer regardless of size, employment and turnover requirements with effect from Aug. 13, 2022, and will extend its effects not only with respect to new subordinate employment relationships (including term, part-time, intermittent and temporary employment relationships) but also to special forms of work performance such as continuous collaborations, occasional employment contract as well as contracts with maritime, fishing and domestic workers.

Employed workers already in force on that date, however, will be able to make a written request to know the "essential elements of the employment relationship" to the employer, who will have 60 days to share the data with the employee.

The Legislative Decree No 104/2022 does not apply to: • employment relationships with an average duration of less than 3 hours per week in a period of 4 consecutive weeks; • agency contracts; • all self-employed relationships with a VAT number.

The decree also has an important impact on privacy regulations, requiring the employer to inform the employee - providing specific details - about the possible use of automated decision-making or monitoring systems in the hiring, management or termination of employment or for the purpose of assigning a position or assigning specific tasks or duties.

The information must be provided in writing, including in electronic form, and the company must keep the copy of the receipt statement for at least 5 years.

Lastly, the penalties, which in case of omission (which includes the mere delay) may range from 250 to 1,500 euros per worker with intervention of the Labor Inspectorate.

The entry into force of the new text has raised doubts about its consistency with the general process of simplification and digitization of bureaucracy under way.

In fact, the presumable administrative and bureaucratic burden that will result for employers and principals seems to stand in stark contrast to the favor for simplification that has characterized the legislature in recent years (think, for example, of the National Recovery and Resilience Plan - PNRR that has invested so much on this point).

Clovers remains at the disposal of clients to provide all the advisory work necessary to comply with Legislative Decree No 104/2022.

You deserve a break (from franchising) today!

At the beginning of the summer, the Italian Competition Authority (Agcm) closed a proceeding against the well-known fast-food chain McDonald's for abuse of economic dependence (in violation of Article 9 of Italian Law No. 192/1998), accepting the commitments presented by the party to eliminate possible competitive distortions in the market.

Following to the annual report presented by Agcm, the Italian Competition Authority had many occasions in the last two years to deal with of abuse of economic dependence cases like those involving Benetton, Poste Italiane and WindTre.

Italian law regulating abuse of economic dependance provides that – regardless a situation of dominance on a specific market- abuse of economic dependence occurs when the 'stronger party' of a contractual relationship succeeds in determining an excessive imbalance of rights and obligations of the dependent company, which may reverberate, over time, on the very balance of the market concerned and cause, for example, higher prices or lower quality and innovation on the supply side.

The investigation against McDonald's is about its chain of franchising relationship: in the case at stake, the former franchisees, (weaker parties in the contractual relationship), complained about having faced very rigid contractual conditions imposed on them by McDonalds and of having been subjected to a whole series of controls that made it, in fact, impossible to act with the entrepreneurial autonomy that should abstractly characterise the franchising relationship.

Fee-based training for potential franchisees, a very strict non-competition clause extended to the entire food and beveratge sector, the impossibility of negotiated derogation from the proposed contractual standard, and the imposition of a minimum threshold of annual advertising investments were just some of the restrictions that, according to the complainants, substantiated the reported abuse.

These elements as highlighted in the report of the former franchisees were considered enough by Agcm to commence an investigation against McDonald's.

The party chose to avail itself of the option of proposing binding commitments for its future behaviour and to submit them to the so-called 'market test', i.e. the publication of the same to allow competitors to take a position on the effectiveness or not of the proposed solutions.

In particular, McDonald's commitments concerned the elimination of training costs to be borne by potential franchisees, the lowering of the minimum level of advertising investment required, the possibility of negotiating changes to the proposed contractual standard, and the elimination of most of the restrictions provided for in the original version of the non-competition agreement.

The successful overcoming of the market test and the final approval of the binding commitments proposed by Agcm allowed McDonald's to close the proceeding without the imposition of a fine, but, given the public nature of Agcm's power to impose sanctions, the acceptance of the commitments for the future, whenever it closes the investigation does not shield the party from the possibility of the former franchisees bringing a civil action for damages before the ordinary judicial authority (Ago).

The Court of Turin rules on the exception to trademark exhaustion and Ambush Marketing practice

Recently, the specialized IP section of the Court of Turin ruled in an interesting case that concerned the application of the exception provided for trademark exhaustion in the face of a defense invoking the danger of the so-called ambush marketing.

Parties to the case were Basicnet, a leading apparel manufacturer and owner of the KWAY trademark, on one hand, and FIFA and Sony on the other.

Basicnet had become aware that, during the period from June 14 to July 15, 2018, in the official video of the song chosen as the soundtrack of the World Cup held in Russia, entitled "LIVE IT UP" (FIFA World Cup 2018), singer Nicky Jam was wearing a K- WAY jacket, from which the K KWAY trademark was first blurred, and then completely removed.

The video was visible throughout the World Cup and was at the time of the introduction of the lawsuit added on the UEFA website and various digital platforms including the Youtube channel.

Sony had been commissioned by FIFA to produce, among other things, the music track and related official music video for the World Cup to be held in Russia in 2018, which, as part of that commission, every detail related to the production was agreed upon, including the exclusives that World Cup sponsors had secured.

Once the contract with FIFA was signed, Sony would shoot the video clip of the event's official song performed by singer Nicky Jam. On the day of the shooting, the singer went to the set wearing a K-way jacket that was very unusual in its shape and colors as well as in being branded with a huge K Way logo in addition to the traditional colored zipper that distinguishes K Way products.

Sony’s managers present told the singer that it would not be possible to frame the jacket as there was no permission from the manufacturer and that Basicnet itself could be accused of ambush marketing by the Russian authorities if they show the jacked in the video.

More precisely, Sony officials represented to the singer that the jacket could not have been framed because of contractual commitments made by FIFA respecting the exclusive rights of official World Cup sponsors among which Basicnet was not one.

Sony had also represented to the singer that the use of the K-Way trademark could have led to objections from the Russian authorities, on account of the unlawful association with the event of a trademark unrelated to it.

Faced with the singer's refusal to shoot the video by taking off his jacket, Sony opted, as a fallback solution, to obscure the logo in the post-production stage so that once the video was shot the K-Way logo was electronically erased from the jacket.

Upon realizing the facts, Basicnet had requested Sony and FIFA to immediately withdraw the video and restore the trademark on the jacket alleging that the alteration of the plaintiff's trademark by the defendants FIFA and Sony constituted an infringement of Kway's national and EU trademark rights, as well as integrating an act of unfair competition

According to Basicnet's defense, the use for profit of a garment with a registered trademark affixed to it had to comply, even post-sale, with the legislator's choice to protect the registered trademark not only against the risk of confusion as to its origin, but also against the erosion of the promotional value embedded in the sign.

According to the plaintiff, the conduct at issue also resulted in a detriment to the image of prestige of the products and the reputation of the mark also in view of the fact that any manipulation of the mark constitutes a source of both direct and indirect profit for those who engage in it. Based on these arguments, Basicnet sought an inhibition of the circulation of the video and an equitable liquidated damages award.

The defendants, on their side, claimed that the challenged usage of teh trademark at stake had not been put in place for profit and invoked the so-called principle of trademark exhaustion arguing that such infringement would not exist where the cancellation of the logo would have occurred on a product bought by the singer and worn by him and not intended, therefore, for marketing. In such case the principles of exception to the principle of trademark exhaustion could not be applied, lacking in any case the subjective element of the infringement since the decision to proceed to the electronic cancellation of the logo would have occurred as a result of the need to comply with both the protocols to avoid violation of the exclusivity recognized to the sponsors of the sports event.

In addition, the defendants argued that organizers of such events are usual targets of so-called "ambush marketing," i.e., those promotional activities promoted to the detriment of official sponsors by other brands that are not official sponsors and that, often taking advantage of the absence of specific legislation, attempt to "latch on" to the event and gain visibility through unconventional marketing.

Italian Courts have already affirmed that "legitimate reasons for the trademark owner to oppose the further marketing of the products" exist, as an exception to the so-called "principle of exhaustion", in case of removal of the identification code affixed to the bottles of a product (in this case: a liquor). Indeed, such removal is likely to damage the reputation of the trademark and its owner, if only because of the image of lesser value that the manipulated bottles convey to consumers, with negative repercussions, for the sign, even on products marketed intact. It follows that the area, EU or non-EU, of marketing of the bottles in question is irrelevant, since there have been alterations/manipulations of the packaging and the product (Court of Turin 12.5.2008).

Moreover, Italian Courts in the past affirmed that "the use of the trademark subsequent to the first placing on the market of the product incorporating the right must not be a cause of detriment to the reputation and prestige attached to the distinctive sign, this constituting a legitimate reason for the exhaustion of the right not to occur" (Tribunale di Bologna 26.3.2010).

In the case at hand, the Court stated that Sony, during the post-production of the video, unquestionably obscured the KWay logo placed on the jacket at issue, which undoubtedly had a particularly distinguishing function for the product at issue, even taking into account the considerable size of that logo.

The Court found it clear that the thimble use of the product, obscured by the logo, constitutes a per se trademark infringement and, in particular a violation to its reputation and prestige. In this respect, therefore, the violation of Articles 5 of the Italian Industrial Code and 13 Rmue must be deemed to be integrated, given that no authorization by the plaintiff, owner of the marks in question, to such obscuration was unquestionably granted either expressly or tacitly.

In the opinion of the Court of Turin, the defendant's arguments that the prerequisites for the application of the aforementioned provisions on trademark exhaustion since there would have been no marketing of the jacket, the same having been purchased by the singer for the purpose of his own personal enjoyment cannot be shared. The Court stated that the exception is not pertinent because if it is true that it is not disputed that the jacket belongs to the singer, it is also true that it is precisely with the use of that jacket and the alteration of the trademark that distinguishes it that the video was filmed and disseminated worldwide, given the resonance of the event, with all the consequent commercial spin-offs to the benefit, even of the defendants.

It appears evident, therefore, in the opinion of the Court that in the case at hand there was no exhaustion of the trademark since the jacket, although belonging to the singer, was not used for the purpose of mere enjoyment in the context of the physiological entry into the economic circuit but specifically for the purpose of making a video intended for the promotion of an event of global relevance such as the World Cup Russia 2018.

Realization and dissemination of such video that took place precisely by the defendants. Nor can the thesis that the offenses committed lack the subjective element be upheld, where from the same narration of the facts made by the defendant party it emerges unequivocally how it was well aware of the conduct it had engaged in, the blackout having been carried out precisely by Sony in order to circumvent the prohibitions on the use of products not referable to the official sponsors of the event.

According to the Court of Turin, the plaintiff's position is, therefore, to be recognized as deserving of protection not from the standpoint of its right to see its trademark associated with the sports event in question - a right, moreover, not even claimed by the plaintiff itself - but from the standpoint of its right not to have its product logo altered and, consequently, not to have its prestige and promotional value damaged.

In this respect, therefore, the conduct engaged in by the defendants is to be considered contrary to the principles set forth in Articles 5 of the Italian Industrial Code and 13 Rmue as well as in Article 20 Cpi itself, representing the obscuring of the logo as a hypothesis of infringement.

Moreover, the conduct is also relevant from the point of view of unfair competition under Article 2598 of the Italian Civil Code, since it is not disputed that Basicnet also operates in the market for the promotion of advertising videos of its products, and the dissemination of a video containing a Basicnet product modified without its consent in such a way as to alter its distinctive capacity represents a hypothesis of conduct not in accordance with professional fairness relevant under Article 2598 co. 3 of the Italian Civil Code.

For all these reasons taken together, therefore, the plaintiff's claim were be considered well-founded. Also not valid, in the Court's opinion, is the reference to the practice of ambush marketing made by the defendants. Such a practice occurs "when a communication campaign suggests contrary to the truth that a party is a sponsor of an event" (Advertising Self-Regulatory Code Jury 8.7.2014). The practice of ambush marketing is considered misleading, as it misleads the average consumer about the existence of sponsorship or affiliation relationships or, in any case, connections with the owners of intellectual property rights, which, on the contrary, do not exist (in this sense, Court of Milan 15.12.2017) and constitutes a particular hypothesis of unfair competition contrary to professional fairness that can find protection under the general framework of Article 2598,3rd paragraph, Civil Code (Court of Milan 15.12.2017).

In particular, case law has had occasion to specify that "with the figure of ambush marketing, the unfair competitor abusively associates the image and brand of a company with an event of particular media resonance without being linked by sponsorship, license or similar relationships with the organization of the event. In doing so, the same takes advantage of the event without bearing the costs, resulting in undue attachment to the event and negative interference with the contractual relationships between organizers and authorized parties. It is therefore a tort where the injured parties are the event organizer, the official licensee (or sponsor) and finally the public.” (Court of Milan 15.12.2017).

It is clear from the above that in the case at hand there can in no way be discerned a practice of ambush marketing on the part of Basicnet. The latter did not, in fact, carry out any activity associating its trademark with the Russia 2018 World Cup event, nor did it consent to such association being carried out by others. It was, in fact, the defendants who used the Basicnet product by alternating its logo in an attempt to make it recognizable in order to avoid incurring the violation of the agreements made with the official sponsors and with the Russian legislation itself. No activity and consequently liability can be attributed to Basicnet in connection with the incident where it only became aware of the incident following the dissemination of the video.

Stop the use of Analytics also by the Italian Guarantor: some alternative solutions

Managing a website or mobile application requires the use of traffic and/or performance statistics, which are often essential for service delivery. The market standard, in this area, is Google Analytics (GA), which will soon have to change because it has been declared unlawful.

Italy's Privacy Guarantor recently sanctioned the operator of a website, in an order dated June 9, 2022. Its site was using the GA service that transfers European users' data to the United States, a country lacking an adequate level of protection. An influential member of the Garante's panel also confirmed that a series of sweeping audits on this issue (as scheduled by the Garante) have begun.

The Italian Privacy Guarantor's investigation found that operators of websites using GA collect, through cookies, information on users' interactions with the aforementioned sites, individual pages visited and services offered. Among the multiple data collected are the IP address of the user's device and information about the browser, operating system, screen resolution, selected language, and the date and time of the website visit. This information (which is personal data) was found to be transferred to the United States. Therefore, the processing was declared unlawful.

This was able to happen because the Court of Justice of the European Union, in a July 2020 ruling, declared the Privacy Shield, an international treaty that regulated data transfers between the European Union and the United States, null and void. That treaty did not provide adequate safeguards against the risk of unlawful access to European residents' personal data by U.S. authorities.

In March 2022, the European Commission and the United States adopted a joint statement on a future decision to properly regulate data flows to the United States. This is only a political announcement, with no legal value. In fact, on April 6, 2022, the European Data Protection Board (the EDPB i.e., the committee that brings together European privacy authorities) issued a statement clarifying that this statement is not a legal framework that organizations can rely on to transfer data to the United States.

CNIL's contribution

The privacy authority that, to date, has analyzed these issues most "practically" is the French authority.

The French privacy authority (CNIL) has made it clear that the use of GA is considered unlawful under the GDPR and remains so even by resorting to prior pseudonymization or cryptography practices of the data being transferred.

A question then arises. Can data continue to be transferred outside the EU using the legal basis of data subjects' consent?

Explicit consent of data subjects is one of the possible exemptions provided for some specific cases in Article 49 of the GDPR. However, as stated in the EDPB guidelines these exceptions can only be used for non-systematic transfers and, in any case, cannot be a permanent long-term solution, as the use of an exception cannot become the general rule.

Since explicit consent (or even GA) cannot validly be used, are there alternative means that are legitimate?

The CNIL has published a list of software that can be exempted from consent if properly configured.

This list includes tools that have already demonstrated to CNIL that they can be configured to be limited to what is strictly necessary to provide the service, thus not requiring user consent.

Whichever software is used, it is always necessary to verify, as far as possible, that the company producing it has no patrimonial or organizational ties with a parent company located in a country that allows intelligence services to request access to personal data located in another territory (for example: the United States but also China), and it is necessary to assess the legal framework of the country of export of the data.

The list of software suggested by the CNIL.

Without going into detail about the configuration required to use these software legitimately (which depends on several variables) we indicate below the list indicated by the CNIL:

  • Analytics Suite Delta di AT;
  • SmartProfile di Net Solution Partner;
  • Wysistat Business di Wysistat;
  • Piwik PRO Analytics Suite;
  • Abla Analytics di Astra Porta;
  • BEYABLE Analytics di BEYABLE;
  • etracker Analytics (Basic, Pro, Enterprise) di etracker;
  • Web Audience di Retency;
  • Nonli;
  • CS Digital di Contentsquare;
  • Matomo Analytics di Matomo;
  • Wizaly di Wizaly SAS;
  • Compass di Marfeel Solutions;
  • Statshop di Web2Roi;
  • Eulerian di Eulerian Technologies;
  • Thank-You Marketing Analytics di Thank-You;
  • eStat Streaming di Médiamétrie;
  • TrustCommander di Commanders Act.

The following sources were used in the preparation of this article, to which we refer for further study.

  • Google: Privacy Guarantor stop the use of Analytics. Data transferred to the US without adequate safeguards
  • The Court of Justice invalidates Decision 2016/1250 on the adequacy of the protection provided by the EU-US Data Protection Shield (PDF, 322 ko) - CJEU
  • Alternatives to third-party cookies: what consequences regarding consent?
  • [FR] Utilisation de Google Analytics et transferts de données vers les États-Unis : la CNIL met en demeure un gestionnaire de site web

EPO Patent Proceedings and Precautionary Measures

The Court of Justice of the European Union recently ruled on the interpretation of Article 9.1 of the Enforcement Directive (Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights) in a patent dispute between two German companies, Phoenix Contact GmbH & Co. KG, the patent owner, and Harting Electric GmbH & Co. KG, the alleged infringer.

The ruling of 28 April 2022 came at the end of a preliminary ruling by the Landgericht München on an application for interim relief filed by Phoenix for the protection of a patent concerning a connection plug with a protective conductor terminal, which had been granted by the EPO but opposed by Hartig.

The Court of München found the patent to be valid and infringed, but could not issue the requested injunction because it was bound by the case law of the Oberlandesgericht München, which prevented the adoption of emergency measures for the protection of a patent as long as the validity of the patent itself was not confirmed by opposition or appeal proceedings before the EPO or by a decision of the Bundespatentgericht.

The question referred for a preliminary ruling concerned the compatibility of this case law with Article 9.1 of the Enforcement Directive, which provides for the possibility for the courts of the Member States to issue urgent measures against the alleged infringer of an industrial property right aimed at preventing any imminent infringement of an intellectual property right.

Firstly, the Court of Justice reiterated that the adoption of urgent measures for the protection of industrial property rights must always be subject to a 'fact specific' exam as to the the protectability requirements of those IP rights and their infringement.

Moreover, the very nature of the emergency measure must allow the stop of the infringement without having to wait for a ruling on the merits on the validity of the title and the relevant infringement in light of the irreparable prejudice caused by the delay that would be caused in the time needed to complete the substantive investigation on these aspects.

In that sense, the case-law of the Oberlandsgericht München would appear to be incompatible with this principle and to apt to deprive interim relief of its inherent effectiveness in so far as it makes the grant of interim relief subject to a further determination of validity by the EPO or the Bundespatentgerich.

In answering the question for a preliminary ruling, the CJEU thus concluded that Article 9(1) of the Enforcement Directive "precludes national case-law under which applications for provisional measures for patent infringement must be refused, in principle, where the validity of the patent in question has not been confirmed, at least, by a first instance decision issued following opposition or invalidity proceedings".

What point has the sports law reform reached?

Roberto Ninno - Partner

Lorenzo Joel Terranova - Associate

What point has the sports law reform reached?

For more than forty years, L. 23/03/1981, No. 91 bearing "Norms concerning relations between companies and athletes" has been the industry benchmark for legal interpreters. A regulation from yesteryear one could argue, at least in light of its "longevity," which, however, is heading for repeal. In fact, the revolution of the discipline began in 2019 when the Delegated Law 8/8/2019, No. 86 (entitled "Delegations to the Government and other provisions on sports organization, sports professions as well as simplification") was approved.

The Parliament, outlining the principles and guiding criteria with which the new legislation must comply, therefore instructed the Government to adopt "one or more legislative decrees" aimed at reorganizing the discipline of the sector with reference to both the organization of the Italian National Olympic Committee (CONI) and the sports professions reserving, in the end, a chapter on the simplification of administrative procedures and safety in the sports field.

Analyzing the guidelines dictated by Parliament to the executive, it seems that the legislature was moved by the animus proper to a "champion of the values of sport" with the aim of leading the sports system back to its atavistic (and lost?) values, in line with the dictates of the Constitutional Charter.

Thus, it is not surprising that among the key-words found in the text of the Delegated Law stand out: "organization," "homogeneity of the regulatory framework," "promotion," "women's participation," "social and preventive-health character of sporting activity," "equal opportunities," "health and safety of minors" (who play sports) and even "protection and welfare of animals used in sporting activities."

Deadline for the adoption of the decrees? 12 months from the entry into force of the Delegated Law. Then the pandemic, and ... then what?

Are there today these legislative decrees? What has already changed and what will change?

To the first question we can answer positively: they exist.

Between March 18 and 19, 2021, five legislative decrees implementing Articles No. 5, 6, 7, 8 and 9 of the enabling act were published in the Official Gazette:

  • Legislative Decree No. 36 of Feb. 28, 2021 "reorganizing and reforming the provisions on professional and amateur sports bodies as well as sports labor";
  • Legislative Decree No. 37 of Feb. 28, 2021 "on measures regarding the representation relationships of athletes and sports clubs and access to and exercise of the profession of sports agent";
  • Legislative Decree No. 38 of Feb. 28, 2021 "on measures on the reorganization and reform of the safety for the construction and operation of sports facilities and regulations on the modernization or construction of sports facilities";
  • Legislative Decree No. 39 of February 28, 2021 "on simplification of requirements for sports bodies";
  • Legislative Decree No. 40 of Feb. 28, 2021 "on safety measures in winter sports disciplines".

Coming to the second question, what has changed and what will change?

The reorganization process has suffered a setback due to the intervention of Decree-Law No. 41 of March 22, 2021, converted into law, with amendments, by Law No. 69 of May 21, 2021, better known as the "Supports Decree," which in Art. 30, co. 7, provided for the modification of the deadlines for the measures contained in the implementing decrees by postponing them.

It is not over.

A further change is due, most recently, to the entry into force of Decree-Law No. 73 of May 25, 2021, converted, with amendments, by Law No. 106 of July 23, 2021 (the so-called "supports bis decree"): it is in the light of this last discipline that we can finally draw conclusions and answer the second question. There are three different terms of application of the provisions contained in the reform, rectius in the No. 5 implementing decrees: January 1, 2022, August 31, 2022 and January 1, 2023. Specifically, as a result of the provision in Article 10, para. 13-quater of the aforementioned Decree-Law, the following apply:

  1. as of January 1, 2022, the (only) provisions of Articles 10, 39 and 40 and Title VI of Legislative Decree No. 36 of February 28, 2021, as well as those of Legislative Decree No. 40 of February 28, 2021, which, specifically, concern:
  • modalities for the recognition of amateur sports associations and clubs;
  • the Fund for transition to professionalism and the extension of labor protections in women's sports;
  • the promotion of gender equality at all levels and in every structure; iv. safety measures in winter sports disciplines.

  1. As of Aug. 31, 2022, the provisions set forth in Legislative Decree No. 39 of Feb. 28, 2021, "simplification of fulfillments related to sports bodies" concerning the simplification of administrative burdens on sports bodies as well as in the area of combating and preventing gender-based violence.

    The text of the decree in question is thus among the most emblematic of the inspiring rationale behind the reform, which, as anticipated, aimed to ensure that the practices of the (new) sports world were marked by a model that was, in concrete terms, guaranteeing constitutional principles. It is no coincidence that the aforementioned decree, in addition to providing the establishment of the National Register of Amateur Sports Activities (which is essential for the purpose of recognizing the legal personality of amateur sports associations), includes provisions aimed at the protection of minors, the prevention of harassment and gender-based violence as well as other discriminatory cases relating to:

  • ethnicity;
  • religion;
  • personal beliefs;
  • age;

  • sexual orientation.

    All of which delegates to both National Sports Federations and Amateur Sports Associations and Societies and Professional Sports Societies the task of adopting the relevant codes of conduct and organizational models functional to this end.

  1. As of January 1, 2023, all regulations (except those effective as of January 1, 2022, see point no. 1 above) referred to in:
  • Legislative Decree No. 36 of February 28, 2021 "Reorganization and reform of the provisions on professional and amateur sports bodies as well as sports labor";
  • Legislative Decree No. 37 of Feb. 28, 2021 "Measures on the representation relationships of athletes and sports clubs and access to and exercise of the profession of sports agent";
  • Legislative Decree No. 38 of Feb. 28, 2021 "measures on the reorganization and reform of safety regulations for the construction and operation of sports facilities and regulations on the modernization or construction of sports facilities".

A clarification needs to be made. The central point of the reform, if only in terms of its concrete scope of application, is probably to be found in the provisions contained in these last three decrees.

The innovative character is dictated by the fact that the legislature has, in fact, dismantled (so much so as to provide for its abrogation in toto) the past codification of L. 23/03/1981, no. 91, going so far as to reformulate ex novo the labor law principles that had hitherto been applied in the interpretation of "sports" labor relations.

The novelty is not insignificant, especially taking into consideration the difficult issues inherent in the so-called "sports bond," a punctum dolens that has not failed to generate tensions, and this even before the actual entry into force of the text.

Coming to the details of the main novelties, it is enough to consider the domains of application of the new provisions of which the topics of greatest interest are listed below:

  • discipline of amateur and professional sports entities;
  • discipline of individuals (membership, minor athletes, technicians, sports managers and match directors);
  • provisions for the protection of animals in sports disciplines involving their use;
  • provisions on sports labor;
  • provisions on equal opportunities for persons with disabilities in access to military and civil corps sports groups of the state.

Reconnecting with the incipit of the article, consider that the rules dictated here not only provide for the repeal of the discipline that for more than forty years has been the reference for interpreters of the law, but even overturns past assumptions, betting on the modernity of the sports system.

Taking into account the complexity and breadth of the reform, Clovers decided to devote a special focus to the various implementing decrees so as to ensure a careful examination of the new provisions and, at the same time, not to exhaust the many insights and analysis offered by the innovative nature of the new legislative framework. Clovers intends to follow the evolution of the reform step by step, and to this end, for the analysis of the individual decrees and the respective novelties contained therein, it makes an appointment for all readers to the next episode.

Ambush marketing and protection of promotional investments between past and future

In view of the next Winter Olympics, which will feature the mountain territories of Lombardy and Veneto as the protagonists of the world sports scene, an important regulatory instrument will protect registered trademarks and companies from parasitic and misleading advertising, carried out not only during the Olympics, but also during all sporting events or trade fairs of national or international importance that will take place on Italian territory.

The new discipline that counteracts unauthorized advertising, is contained in the decree-law on 'Urgent provisions for the organization and holding of the Winter Olympic and Paralympic Games Milan-Cortina 2026 and the ATP Finals Turin 2021 - 2025, as well as on the prohibition of parasitic advertising', published in the Official Gazette n.66 of March 13, 2020, converted into Law no.31 of May 8, 2020 and published in the Official Gazette no.121 of May 12, 2020, and represents the first organic intervention of the Italian legislator in this matter, having been preceded only by contingent measures for individual sports events.

Unauthorized advertising associated with events of national or international resonance is defined in practice as 'ambush marketing' and identifies the unauthorized conduct of those who associate their brand with an international event, for the sole purpose of exploiting its media resonance and without bearing the costs of sponsorship.

Ambush marketing gives rise not only to a deception for the public - which will associate the brand illegally connected to the event with the event itself - but also to a parasitic link with the actual sponsors of the event and may constitute a violation of the rules protecting unfair competition (art. 2598 Civil Code) and fair advertising communication (Legislative Decree no. 145 of August 2, 2007 and the Advertising Self-Discipline Code).

In particular, the regulation prohibits the following activities:

  1. the creation of an indirect link between a trademark or other distinctive sign and one of the events, suitable to mislead the public about the identity of the official sponsors;
  2. falsely stating in one's advertising that one is an official sponsor of one of the events; or
  3. the promotion of one's own brand or other distinctive sign, through any action, not authorized by the organizer, that is suitable to attract the attention of the public, carried out on the occasion of one of the events, and suitable to generate in the public the erroneous impression that the author of the conduct is the sponsor of the sporting event or exhibition itself
  4. the sale and advertising of products or services that are improperly marked, even only in part, with the logo of a sports or exhibition event, or with other distinctive signs likely to mislead the public about the logo and to create the erroneous perception of any connection with the event or its organizer.

Depending on the way it is carried out, ambush marketing is usually classified into: "insurgent ambush", which is the organization of surprise initiatives close to the event; "predatory ambush", which uses distinctive signs in connection with or indirectly recalling the event “saturation ambush", which occupies all the published space left over from that used by official sponsors.

From a temporal point of view, the bans operate from the 90th day prior to the official start date of the sports or exhibition event, until the 90th day after its conclusion, while, from an operational point of view, sponsorship contracts for athletes, teams and participants in events are excluded from the rule.

The authority in charge of ascertaining and repressing ambush marketing conduct is the Antitrust Authority (AGCM), which can apply administrative fines ranging from 100 thousand euros to 2.5 million euros, depending on the case.

Recently, it was precisely the AGCM that dealt with a case of ambush marketing relating to the 2020 UEFA Cup, going so far as to fine the e-commerce Zalando com 100,000 euros against Zalando SE ("Zalando"), for violation of Article 10, paragraphs 1 and 2, letter a), of Decree Law No. 16 of March 11, 2020.

The censured agreement consisted of the display, in the same square in Rome where the official Euro 2020 area was set up, of a poster asking "Who will be the winner?" accompanied by the distinctive signs of Zalando affixed to a soccer shirt flanked by the flags of the Euro 2020 national teams.

This advertising was deemed illicit by the AGCM because Zalando's poster was likely to make consumers believe that Zalando was an accredited partner of the event as it created an undue connection between Zalando itself and the event of which it was not an official sponsor.

The Agcm's decision was careful to value all the circumstances of the case and, therefore, in view of the upcoming winter games, it is of primary importance that companies carefully evaluate their marketing campaigns before accidentally incurring in profiles of violation of advertising regulations.

The "transfer of employees" between free enterpreneurial initiative and act of unfair competition

The transfer of employees from one legal entity to another may integrate, at the occurrence of specific conditions, a case of unfair competition as provided for in article 2598 n. 3 of the Italian Civil Code which provides that "acts of unfair competition are committed by anyone who: (...) 3) uses directly or indirectly any other means not in accordance with the principles of professional fairness and suitable to damage the other company”.

Specifically, this refers to conducts that do not comply with professional integrity or dignity of the profession and are aimed at the illegitimate appropriation of a competitor’s market space and/or clients. A prerequisite for the offence is in fact necessarily the existence of a situation of competition between two or more entrepreneurs, deriving from the simultaneous exercise of the same industrial or commercial activity in a territorial area that is even only potentially common and a connected potential commonality of clients.

In order to clarify when there is a real risk of integrating a case of unfair competition and distinguish it from its physiological phenomenon, it becomes crucial to identify the boundary, often blurred, between a simple act of hiring, even multiple, of employees of third parties, falling in general in the free entrepreneurial initiative and a real act of transfer of employees to be considered as an act of unfair competition which gives rise to civil liability.

In this regard, some relevant judgments on the merit have clarified that "the transfer of employees from one company to another does not constitute in itself an act of unfair competition under article 2598 n. 3 of the Italian Civil Code. ...but becomes unlawful when it is accompanied by a series of elements - such as the number of employees transferred, their professional competence, the role they played in the transferred company - which highlight the unlawfulness of the conduct of the transferring company, which takes advantage in a parasitic way of the training investments made by the transferred company on its employees transferred" (Court of Turin, February 4, 2009 and inter alia Court of Milan, specialized business section February 26, 2018) and also that "in terms of unfair competition for diversion of customers the unlawfulness of conduct must not be sought episodically, but must be inferred from the tendential qualification of the acts put in place to damage the competitor, or to systematically take advantage of its goodwill in the market)" (Court of Cassation n. 12681/07, Court of Milan, February 1, 2022 and also Court of Milan, March 22, 2019).

In the light of these principles, the same case-law has therefore identified some significant indicators of the transfer of employees specifying that, by way of example, such case of unfair competition is integrated when the disloyal competitor acts:

  • in violation of labor law regulations (for example, as regards the notice periods) and of the other absolute rights of the competitor (such as reputation and intangible property rights and confidential information);
  • in ways that are not physiological, as they are potentially risky for the business continuity of the entrepreneur who suffers the trasnfer in his competitive ability, taking into account, on the one hand, the normal dynamics of the labor market in a specific economic context and, on the other, the internal conditions of the loyal company (for example, it has been held that, in cases of business crisis or situations of difficulty, the breaking up of the workforce and the increased outflow of employees are to be considered a physiological effect);
  • with methods that have a shock effect on the ordinary activity of offering goods or services of the transferred company and that potentially jeopardize the business continuity of the entrepreneur in its competitive capacity, or cause alterations beyond the threshold of what can be reasonably foreseen and therefore not susceptible of being absorbed through an adequate reorganization of the company.

The material conducts described above must also be carried out with the so-called animus nocendi, to be understood as a will, that cannot be justified in relation to the principles of professional correctness and suitable to create distorting effects in the market and to cause damage or destroy the competitor: in other words, the transfer of employees is only forbidden if implemented with the precise intention of damaging the competing company, which can, however, be assessed presumptively in the light of a series of objective indicators, identified by case-law in the quantity and quality of the transferred personnel, in its position within the transferred company, in the difficulty that can be linked to its replacement and in the methods that may have been adopted to persuade employees to transfer to the transferring company.

Only when all the abovementioned requirements are met and proven, at least in an indicative and presumptive manner, the case of transfer of employees will be configured and the author of such unfair competition act may be called upon to compensate the damage, often significant, suffered by the transferred competitor.

Wine trademarks between validation and tolerance of use

With a recent ordinance (09.02.2022) the Court of Turin has expressed itself regarding the counterfeiting of some trademarks registered by a wine cellar, mainly for wine products in class 33. In the aforementioned order, the Court of Turin also took the opportunity to clarify the difference between the legal institution of validation, provided for by art. 28 of the Industrial Property Code, and the different, albeit relevant, phenomenon of tolerance with respect to the use of a later trademark by the owner of the earlier registered trademark.

The trademarks involved in the case, which were written on the labels of bottles, consisted in particular of the word "SOLO" accompanied by the type of wine (pinot, prosecco, shiraz, etc...) or alcoholic beverage (grappa). These were trademarks regularly registered by the owner at a national level.

In particular, the trademark invoked in the precautionary proceedings was the following:

The appellant, a wine cellar in Frascati, therefore contested the use of the de facto trademark "SOLO PINOT NERO" for wine products by a competitor in the Piedmont area, claiming infringement of its earlier trademark registered under art. 20 C.p.i. (the respondent used a trademark identical or very similar to that of the appellant for identical products).

The defense of the respondent was based first of all on the exception, rejected by the judge, of the validation pursuant to art. 28 C.p.i.. This provision states that the owner of a registered trademark who, for 5 consecutive years, tolerates, being aware of it, the use of a later registered trademark that is the same or similar, cannot therefore ask for it to be declared null and void or oppose its use for the goods or services in relation to which the said trademark has been used.

The ratio of this institute is to be found in the balancing of two different interests: on one hand, that of the owner of the later trademark to avoid seeing the investments made over the years for the accreditation of his own sign cancelled, and on the other hand, that of the consumer to avoid seeing a situation suddenly changed which is now consolidated.

The norm is clear in reserving the benefit of validation only to subsequently registered trademarks and the prevailing jurisprudence is in line with the literal interpretation of the norm. However over the years, also on the basis of some doctrinal ideas, this literal interpretation has seemed to be lacking. Just in the wine sector and just the Court of Turin in 2016 in fact had clearly left to glimpse the possibility of an analogical interpretation (extension) of the rule on validation also to trademarks of fact.

With judgment no. 2256/16 of 22.4. 16 the Court of Turin in fact had clearly argued about the advisability of extending the benefit of validation to de facto trademarks: according to the Court, since the de facto trademark is protected by the rules on unfair competition, rules that implement "principles of protection of the wealth produced by investments and aversion to parasitic initiatives", it must be reached "if not to an analogical application of the institution of validation to unregistered trademarks - at least" to deny protection to a trademark "with respect to equal or similar signs used for a long time in the knowledge and without the opposition of the owner of the trademark".

Well, with the ordinance of February 2022, the same court of Turin seems to go back on its own steps: according to the Court, "Given that it could not be spoken of validation of the trademark, ex art. 28 CPI, because this effect is prescribed only with reference to registered trademarks, the tolerance of the use of the trademark of others, by the owner of the previous registered trademark, could demonstrate the absence of an abstract danger of confusion about the different entrepreneurial origin and involve a limit to the protectability of the previous trademark".

While therefore denying analogical extensions of the validation rule to unregistered trademarks, the Tribunal highlights the relevance, for the purposes of excluding the likelihood of confusion and therefore infringement, of conduct of tolerance with respect to later de facto trademarks by owners of earlier registered trademarks. However, even in the case of tolerance, the Court recalls the limits of its operativeness: "the case of 'tolerance' cannot be recognized where there is no proof of effective knowledge, on the part of the owner of the earlier trademark, of the subsequent use, for a certain period of time, of the de facto trademark of others".

"For the purposes of the recognition of this "tolerance", it is not sufficient a presumed inactivity of the owner of the earlier trademark with respect to the use of the later trademark, but it is necessary that the owner of the earlier registered trademark has put in place, while being aware of such use, behaviors that can be considered as tolerance of such use (Trib. Venezia Sez. PI, 20/10/2006)."

The burden of proof of this tolerance is on the owner of the later trademark. The proprietor of the later trademark must prove, not only that the proprietor of the earlier trademark was aware of the filing of the later trademark, in a concrete manner and not on a presumptive basis, but also that the proprietor of the earlier trademark has shown tolerance to such use for a certain period of time. Therefore, proof (or fumus thereof) of actual knowledge of the use of the later trademark is necessary, because in the absence of actual knowledge of the use of the other trademark, one cannot even speak of tolerance (Turin Tribunal 15/1/2010).

ART and CULTURAL GOODS, NEW CRIMES and COMPLIANCE: THE FINAL PUSH FOR THE ADOPTION OF THE 231 MODEL

Just a few days ago, the Chamber of Deputies gave its final approval to the bill entitled "Provisions on crimes against cultural heritage".

The text reforms the criminal provisions for the protection of cultural heritage - currently contained mainly in the Code of Cultural Heritage (Legislative Decree no. 42 of 2004) - and inserts them within the Criminal Code with the aim of carrying out a profound reform of the subject, redefining the structure of the discipline with a view to a tendency to tighten the sanctioning treatment, as provided by the Nicosia Convention of the Council of Europe ratified by Italy, and therefore, it is believed, with more preventive purposes.

Following the modifications approved by the Senate, the bill consists of 7 articles through which: i) it places in the Criminal Code the criminal offences currently divided between the Criminal code and the Code of Cultural Heritage; ii) it introduces new types of offences; iii) it raises the edictal penalties in force, thus implementing the constitutional principles according to which the cultural and landscape heritage needs further protection compared to that offered to private property; iv) it introduces aggravating circumstances when cultural heritage is the object of common offences; v) it intervenes on article 240-bis of the Criminal Code, extending the catalogue of offences that can be committed against cultural heritage. p. by expanding the catalog of crimes in relation to which the so-called extended confiscation is allowed; vi) intervenes on article 240-bis of the Italian Criminal Code. vi) modifies legislative decree no. 231 of 2001, providing for the administrative responsibility of legal entities when crimes against cultural heritage are committed in their interest or to their advantage; vii) modifies paragraph 3 of art. 30 of law no. 394 of 1991 regarding protected areas; viii) intervenes in the discipline of undercover activities, providing for their applicability also within the scope of activities to combat the crimes of money laundering and self-laundering of cultural assets carried out by police officers of bodies specialized in the sector.

As regards amendments to the Criminal Code, a new Title VIII-bis Of crimes against the cultural heritage is inserted and the following articles are introduced:

  • 518-bis Theft of cultural property
  • 518-ter Misappropriation of cultural assets
  • 518-quater Receipt of cultural assets
  • 518-quinquies Use of cultural assets originating from a crime
  • 518-sexies Laundering of cultural goods
  • 518-septies Self-laundering of cultural goods
  • 518-octies Forgery of a private contract relating to cultural goods
  • 518-novies Violations regarding the sale of cultural goods
  • 518-decies Unlawful importation of cultural goods
  • 518-undecies Illicit exit or export of cultural goods
  • 518-duodecies Destruction, dispersion, deterioration, defacement, embellishment and unlawful use of cultural goods or landscapes
  • 518-terdecies Devastation and looting of cultural and landscape goods
  • 518-quaterdecies Counterfeiting of works of art
  • 518-quinquiesdecies Cases of non-punishability
  • 518-sexiesdecies Aggravating circumstances
  • 518-septiesdecies Mitigating circumstances
  • 518-duodevicies Confiscation
  • 518-undevicies Fact committed abroad
  • 707-bis Unlawful possession of soil borings or metal detecting equipment.

With reference to the amendments made to Legislative Decree no. 231/2001, the following regulations are to be introduced:

  • Art. 25-septiesdecies Crimes against the cultural heritage
    • Misappropriation of cultural assets
    • Illegal importation of cultural assets
    • Illegal exit or export of cultural assets;
    • Destruction, dispersion, deterioration, defacement, embellishment and illegal use of cultural assets and landscapes;
    • Counterfeiting of works of art;
    • Theft of cultural assets;
    • Receipt of cultural assets;
    • Forgery in private agreements relating to cultural assets.
  • Art. 25-duodevicies
    • Laundering of cultural assets;
    • Destruction and looting of cultural assets and landscapes.

It should be noted that the most important and impactful aspects of the reform have to do with the inclusion

  1. within the catalog of crimes in relation to which the extended confiscation is allowed, the crimes of receiving cultural goods, use of cultural goods from crime, recycling of cultural goods, self-laundering of cultural goods and activities organized for the illicit traffic of cultural goods, as well as
  2. within the catalog of predicate offences set out in Legislative Decree no. 231/2001, in the case of the commission of the aforementioned crimes in the interest or to the advantage of the entity, the two new articles 25 septiesdecies and 25 duodevicies.

Moreover, this further enlargement of the catalog of crimes of Legislative Decree no. 231/2001 comes very close after the equally recent introduction of the new art. 25 octies.1 following the implementation of Directive 2019/713/EU on the fight against fraud and counterfeiting of non-cash means of payment (including cryptocurrencies and virtual currencies) by Legislative Decree no. 184/2021 which amended articles 493-ter and 640-ter of the Italian Criminal Code and introduced article 493-quater of the Italian Criminal Code.

In the face of the tightening of the sanctions and the widening of the responsibilities, as briefly illustrated above, especially in the light of the inclusion of articles 25 septiesdecies and 25 septiesdecies of the Italian Criminal Code in the catalog of offences pursuant to Leg. 25 septiesdecies and 25 duodevicies (the relative sanctions of which can go as far as definitive disqualification from exercising the activity) it is desirable that auction houses, art galleries and, more generally, all professional operators in the sector with a medium-large organised structure, carry out a preventive risk analysis in order to assess the relevance of the new offences with respect to the company's operations and the activities actually carried out, in all their forms.

In the light of this analysis, where the nature of the activity actually carried out and the structure of the entity, through which this activity is carried out, require it, these operators should adopt an adequate Model of organisation and control, appoint a Supervisory Body, prepare and implement specific and effective protocols aimed at preventing the commission of the aforementioned offences and, in the final analysis, aimed at avoiding the application of the substantial penalties (also) to be borne by the entity itself in the event that one or more of the persons in charge is nevertheless responsible for some of the conduct that is criminally relevant pursuant to and for the purposes of the aforementioned regulations.

In fact, it should be pointed out that both of the aforementioned recent amendments, with the introduction of the relative regulations pursuant to and for the purposes of Legislative Decree no. 231/2001, are intrinsically linked if one thinks of payments relating to transactions involving the purchase, sale or, in any case, the transfer or exchange for valuable consideration of works of art and/or latu sensu cultural assets. In fact, for example, the explosion of the NFT market, mostly linked to the world of art, whose underlying currency is the cryptocurrency Ethereum, is there for all to see.

FOOD LAW: the new regulation of unfair trade practices in the food industry

Clovers reports an important new regulation with important effects in the field of contracting and commercial practices in the food industry.

THE NEW REGULATION OF UNFAIR COMMERCIAL PRACTICES IN THE AGRI-FOOD SECTOR

As you may already know, the recent implementation in Italy of EU Directive 2019/633 has introduced stringent rules to which companies operating in the agricultural and food supply chain must comply from 15 December 2021.

The main novelties of this reform concern both the contracts (in existence or to be stipulated), and the discipline of competition between companies operating in a sector that is of vital importance in the promotion of Italian excellence and that involves products ranging from milk to plants, passing through wine and tobacco.

In order to ensure compliance with the new regulations, penalties are also foreseen, which can reach the threshold of 10% of the transgressor's turnover in the financial year preceding the assessment.

You will find below the most relevant aspects of the new discipline, divided by thematic areas of interest.

What is this about

The reform deals with the regulation of contracts, commercial practices, the practice of selling below cost and other important aspects that regulate the agri-food chain in Italy.

To whom it is addressed

It is a discipline that applies only to B2B relations, excluding, therefore, contracts with final consumers.

The recipients are both suppliers and buyersoperating in the agro-food supply chain sector:

  1. who are involved in the transfer of agricultural and food products,
  2. in cases where the supplier is established in Italy,
  3. whatever their turnover is.

Novelties regarding contracts

As far as supply contracts are concerned, the regulation provides for compliance with precise obligations regarding content, duration and form and establishes that all existing contracts must be adapted by June 15, 2022at the latest.

1. obligations (and prohibitions) regarding content

  • When negotiating new contracts or adapting existing ones, the key rule is clarity: the legislation spells out precisely which provisions must be included in contracts and which are prohibited:
  • From a practical point of view, all contracts between suppliers and purchasers must always include precise indications regarding the quantities and characteristics of the products sold, the price (which may be fixed or determinable on the basis of criteria established in the contract) the duration, the delivery and payment methods for the goods supplied.
  • On the other hand, it is expressly forbidden to include in contracts agreements aimed at:
    • establishing payment terms of more than 30 days for perishable products and more than 60 days for other agricultural and food products
    • allowing cancellation by the buyer of orders for perishable products with less than 30 days notice, with some exceptions;
    • unilaterally changing terms and conditions regarding the frequency, method, location, timing or volume of supply or delivery of products, quality standards, payment terms or prices, or regarding the provision of ancillary services;
    • allowing the supplier to be required to make payments which are not related to the sale of the agricultural and food products or to bear the costs of deterioration and/or loss of products occurring on the buyer's premises or otherwise after such products have become the property of the buyer, where such deterioration or loss has not been caused by the supplier's negligence or fault;
    • imposing, directly or indirectly, unjustifiably onerous conditions of sale, purchase or other contractual terms;
    • selling agricultural products and foodstuffs on contractual terms that are unduly burdensome, including selling at prices that are manifestly below the cost of production;
    • imposing on the buyer products with expiration dates that are too short;
    • imposing contractual constraints on the maintenance of a certain assortment of products;
    • imposing on the purchaser the inclusion of certain products in the assortment;
    • imposing on the purchaser the obligation to reserve for certain products privileged positions on the shelves or in the stores.
    • excluding the application of default interest to the detriment of the creditor or the costs of debt collection; provide for the supplier's obligation not to issue an invoice until a certain period of time after delivery of the products, with certain exceptions;

and more generally

  • apply objectively different conditions for equivalent services;
  • subordinate the conclusion and execution of contracts and the continuity and regularity of commercial relations to the performance of services which, by their nature and according to commercial usage, have no connection with the subject matter of the contracts and commercial relations; and
  • impose the obligation to provide services and ancillary services which have no objective connection with the products transferred under the contract
  • impose an unjustified and disproportionate transfer of economic risk from one party to its counterparty.

It is allowed, as long as it is clearly written and agreed upon by the contracting parties (see the following paragraph on the so-called "grey list"), to include clauses that provide that:

  • the buyer returns unsold agricultural and food products to the supplier, without paying any payment for such unsold products and/or their disposal;
  • the supplier is required to make a payment as a condition of storing, displaying, listing or marketing its products;
  • the buyer requires the supplier to bear the cost of discounts on agricultural and food products sold by the buyer as part of a promotion, with some exceptions;
  • the purchaser requires the supplier to pay the cost of advertising the purchaser's products;
  • the purchaser requires the supplier to pay the costs of the purchaser's marketing of products;
  • the purchaser requires the supplier to pay the costs of staff to organise the supplier's product sales space.

Duration

An important indication concerns the duration of contracts, which must be at least 12 months, unless proven requirements arising, e.g., from the seasonality of the products to be supplied, specifically agreed by the parties or through trade associations; outside this exception, contracts entered into with a shorter duration, will be considered valid for up 12 months.

Written form

Again with the aim of reducing the margin of uncertainty between suppliers and purchasers as much as possible, the new regulations require contracts to be in writing.

NB: good business practice

Among the most important innovations, the regulation expressly provides for the possibility for operators in the supply chain to use in their activities advertising messages bearing the following wording: "Product conforms to good commercial practices in the agricultural and food supply chain", when not only the criteria set out in point 1 regarding the content of contracts are met, but it is demonstrable that the parties are acting in accordance with fairness, transparency and good faith in the reference market.

The use of this claim is always subject to verification by the ICQRF.

Prohibited commercial behaviors and in "Grey list".

The new regulations list in detail a series of prohibited commercial behaviors that must always be avoided by all companies operating in the agri-food sector, regardless of the existence or not of contractual relationships.

These are so-called "unfair commercial practices" which are distinguished, according to their seriousness, as follows

1. commercial practices that are in any case prohibited (so-called "black list") and

  1. practices that would be prohibited unless previously agreed between the parties in the transfer contract or in another subsequent agreement. (so-called "grey list")

1. The so-called "black list"

Prohibited practices include all the conduct already examined with reference to prohibited content in contracts between suppliers and buyers, but there are also others, which are independent of an existing supply relationship between the parties, including:

  • the unlawful acquisition, use or disclosure by the buyer of the supplier's trade secrets;
  • the threat of, or the very act of, commercial retaliation against the supplier when the latter exercises his contractual and legal rights
  • the sale of agricultural products and foodstuffs through the use of tenders and electronic auctions with double discounts;
  • the omission of at least one of the conditions required by Article 168(4) of Regulation (EU) No 1308/2013 on the common organization of the markets in agricultural products;
  • the imposition, directly or indirectly, of unjustifiably burdensome sales, purchase or other contractual conditions;

and, more generally:

  • the adoption of any further commercial conduct that is unfair even taking into account the complex of commercial relations that characterize the conditions of supply.
  1. The grey list

As seen above, on the other hand, it is possible to escape censure of competitive unfairness for these provisions, if they are included in a clear and determined manner in the contract:

  • the buyer returns unsold agricultural and food products to the supplier, without paying any payment for such unsold products and/or their disposal;
  • the supplier is required to make a payment as a condition for the storage, display, listing or marketing of its products;
  • the buyer requires the supplier to bear the cost of discounts on agricultural and food products sold by the buyer as part of a promotion, with some exceptions;
  • the purchaser requires the supplier to pay the cost of advertising the purchaser's products;
  • the purchaser requires the supplier to pay the costs of the purchaser's marketing of products;
  • the buyer requires the supplier to pay the costs of staff to organise the supplier's product sales space.

Who monitors?

The Authorities in charge of supervising the implementation of the new rules are the newly established Central Inspectorate for the protection of quality and fraud repression of agro-food products (ICQRF), which can act both ex officio and following a complaint (even anonymous) and the Antitrust Authority (AGCM), without prejudice to the possibility for the parties concerned to resort to mediation procedures or alternative dispute resolution mechanisms.

Summing up

The new discipline, effective immediately, deals with both contracts and behaviors of companies active in the agro-food chain in Italy and establishes precise rights and obligations between the parties, subjecting market operators to the inspection and sanctioning power of specific public authorities.

The regulatory provisions do not simply represent yet another novelty for the sector, but are also an opportunity to rethink the relationships between market operators with a view to rewarding transparency, continuity and the enhancement of the supply chain.

It is in full respect of this aim that we are at your disposal to better cope with these aspects, also in terms of sharing strategies to adapt to the new regulations in the face of a possible change in consolidated relationships between your buyers and suppliers. The firm is also available to schedule a training session, if required.

The commercial success of a fashion item does not automatically entail recognition of copyright protection (in the absence of proof of creativity and artistic value)

Legal protection of fashion designers’ creations counts several means: from unfair competition to design protection, shape marks, to the protection offered by copyright law (L. No. 633/1941): these instruments offer different kinds of protection and can be used only if specific requirements are met, which must always prooved.

It is common in this field seeing fashion labels trying to "dress up" their products with a variety of intellectual property titles, registering them, for example, as shape marks or as industrial design, in order to increase the level of protection against possible imitations.

However, although protection by registration of intellectual property rights in the fashion industry is particularly widespread, the temporary nature of the rights conferred by registration may be an obstacle to the protectability of garments or accessories when their commercial success is particularly long-lasting: in these cases, in order to have access to protection extended in time and which goes beyond the formalities required for registration, it is necessary to prove not only the particular liking of the public, but also the creativity and artistic value of the product to aim to copyright protection.

An emblematic case of the possible coexistence of several levels of protection for fashion items and of the difficulties connected to the proof of the creativity and artistic value of a product aiming to be considered as copyrighetd is the one recently dealt with by the Court of Milan.

The case concerned the marketing of bags imitating the famous "Le Pliage" bag by Longchamp, protected by two European Union three-dimensional trademark registrations claiming its peculiar trapezoidal shape, and also characterised by the combination of further original elements, such as the rounded flap, the tubular handles and the contrast in colour and materials between the nylon and leather elements.

The plaintiff claimed that the "Le Pliage" bag model was created in 1993 and has been still marketed worldwide through more than 1,500 sales outlets and also online and requested protection against imitations, invoking not only the protection provided for on the basis of three-dimensional trade mark registrations (pursuant to articles 2 and 20 C.P.I. and art.9 EU Reg. no. 2017/1001), but also the violation of the rights of the author and of the principles protecting fair competition on the market (art. 2598 c.c.).

The Court first of all recognised the infringement of the plaintiff's three-dimensional European trademarks insofar as it was established not only their distinctive capacity due to the manner of use and presentation of the trademark itself and the information and suggestions conveyed through advertising and the perception that the shape determines on the consumer public, but also the taking over, by the imitative bags, of all the distinctive elements of the "Le Pliage" model.

With regard to the invoked copyright protection, referring to its own case law on this point, the judgment ruled that it was not possible to identify in this case the actual existence of the artistic character necessary for the form of the bag to enjoy such protection.

The Judges found that, apart from the undeniable commercial success gained on the market, the plaintiff had not enclosed the elements that should have confirmed the presence of an artistic value in the creation of the external appearance of the bag model in question.

In other words, there was no evidence at all of the requirements of creativity and artistic value which presuppose the applicability of Art. 2.10 of the Copyright Act.

As is well known, artistic value can be inferred from a series of objective parameters, such as the recognition by cultural and institutional circles of the existence of aesthetic and artistic qualities, exposure in exhibitions or museums, publication in specialist magazines, the awarding of prizes, the acquisition of a market value so high as to transcend that linked solely to its functionality or the creation by a well-known artist and, in the absence of evidence, it is not possible to have access to the protection provided for by the law on copyright.

Facebook must compensate the user for the unlawful removal of posts

The Court of Appeal of L'Aquila with the judgment 1659 of November 9, 2021 reconstructs the contractual relationship between the social network and the user who interacts in the community and expresses itself on the scope of freedom of expression of users within the social network.

The plaintiff filed a summary procedure to react to the suspension of his account, for 4 months, by the social network following the publication of some politically motivated posts.

In the first instance, the Court of First Instance sentenced Facebook to pay compensation of 15 thousand euros for moral damages. The present decision concerns the appeal presented by the social network before the Court of Appeal of L'Aquila.

First of all, the Court affirms, in this relationship marked by elements of internationality (intervening between a consumer resident in Italy and a supplier based in Ireland), the jurisdiction of the Italian Judge and the applicability of Italian law to decide the dispute.

It then defines its scope, since it is a contract for adhesion in which the ordinary aspects of contractual responsibility are relevant. It then pauses to analyze the nature of the relationship characterized by onerousness, recalling how free contracts are protected with less force than contracts for consideration (paradigmatic is the difference between donation and sale). The relationship is for consideration in that the patrimonial content of a service can be considered to exist also in those cases in which goods other than money are transferred as consideration for a service which, due to their potential for commercial exploitation, become susceptible to an economic and patrimonial evaluation. It is, in essence, the intrinsic suitability of personal data - legitimately acquired and processed - to be considered, because of the profitable commercial exploitation of the same by the social network.

The Court affirms another interesting principle regarding the clause that provides for the powers of Facebook to remove content and suspend accounts in case of violation of the policies of the social network. The same was considered valid and effective, not being able to be considered vexatious.

The Court finally examined the merits of the case, going to syndicate in concrete powers of Facebook: the work of social must not result in behaviors that violate the freedom of expression that, after granting permission to use their sensitive data and not for free, is the typical content and, so to speak, the raison d'être of the membership of a platform of this type, whose function is precisely to allow users to express themselves and share content that is important to them.

The Court of Appeal therefore deemed illegitimate the suspension of the account, given that "the mere publication of a photo with a comment that is limited to the expression of one's own thoughts (...) is not considered sufficient to violate the standards of the community".

Therefore, the Court ruled that, due to the content posted by the user, Facebook exceeded its censorship power, limiting, however, the compensation for damages in favor of the user to € 3,000, also considering the total number of members of the page that was about 2,500 contacts.

Cookies: the French Privacy Guarantor (the "CNIL") sanctions GOOGLE for a total of 150 million euros and FACEBOOK for 60 million euros for failing to comply with French privacy legislation.

On January 6, following investigations, the CNIL found that the sites facebook.com, google.fr and youtube.com do not allow users to refuse cookies as easily as they accept them. The CNIL thus fined FACEBOOK 60 million euros and GOOGLE 150 million euros and ordered them to comply within three months. The French authority noted, in particular, that the sites facebook.com, google.fr and youtube.com offer a button that allows the user to immediately accept cookies, while they do not provide an equivalent solution (button or other) that allows the user to refuse, in an equally simple way the use of the same cookies. Indeed, the websites under scrutiny by the CNIL provided for several clicks to refuse all cookies and only one click to accept them, thus limiting the freedom of consent, which is provided for as a fundamental element by Art. 82 of the French Privacy Law, as well as by the GDPR. In addition to the payment of the aforementioned penalties, Google and Facebook will have to comply with the CNIL's requirements within 3 months, providing users with a way to reject cookies that is as simple as accepting them. Failing this, companies will have to pay a penalty of 100,000 euros for each day of delay. These two decisions are part of the comprehensive compliance strategy launched by the CNIL over the past two years against French and foreign operators who publish websites with many visits and who engage in practices that are contrary to the legislation on cookies. Since March 31, 2021, when the deadline expired for websites and mobile applications to comply with the new cookie rules, the CNIL has taken nearly 100 corrective measures (orders and sanctions) related to non-compliance with cookie legislation. On the Italian landscape regarding cookies, we point out the Cookies Guidelines published by the Privacy Guarantor and entered into force last January 10, 2022, the details of which are provided, on our Blog

Food retail

The performance of the Food Retail sector in 2021 is showing positive signs even though it is obviously still affected by the negative socio-economic reverberations of the Covid-19 pandemic. During 2020 the health emergency hit hard the whole catering sector which, due to the prolonged and intermittent lock down phases, experienced dramatic moments. In terms of legal assistance and consultancy to the Food Retail sector, 2020 was marked by prolonged negotiation activity aimed at finding a balance between the reasons of the landlords and the requests of the companies for redevelopment of the rent. The result of this activity has been, on average, positive, in terms of reaching balanced agreements on rent revisions, but overall the impact of the pandemic factor has been very severe in terms of a drop in turnover for the entire sector, which has also seen a succession of numerous business closures that have certainly affected mostly, but not only, those companies that had previous problems of capitalization and financial instability already in the pre-covid era. The operators in the sector have, moreover, noted a lack of effectiveness and proportionality of the economic support measures arranged by the Government. In 2021, especially in the second half of the year, despite the persistence of widespread uncertainty regarding short and medium-term economic scenarios, and in conjunction with the beginning of a recovery in companies' cash flows, although certainly not equal to pre-covid levels, encouraging signs were also seen regarding the resumption of development plans. Negotiations were thus more focused on negotiations for new openings, which saw a cautious revival of initiatives to acquire commercial premises and other retail locations. On the other hand, even the obvious and in some cases favorable opportunities offered by the market are often approached with a certain degree of caution, determined by the awareness that the period of emergency is far from over. As far as the target of the positioning is concerned, there is a clear predisposition to search for locations equipped with large outdoor dehors, due to the changed habits of customers who certainly prefer an offer with characteristics of greater outdoor livability. On the other hand, a possible obstacle to development is the chronic lack of qualified personnel.

SUPER GREEN PASS: what happens if the area where I live changes color?

The Super Green Pass has become mandatory with effect from 6th December 2021, but what is it?

The Super Green Pass, that you have been hearing about for a while consists of the Covid-19 green certification obtained only with vaccination or with the recovery from the SARS-COV-2 Virus, remaining excluded the certification obtained after the negative result of the antigenic swab (the so called rapid swab). As for the validity of the Super Green Pass, it has already changed more than once: from the November DL (no. 172/2021) to the December DL (no. 221/2021) it went from a duration of 12 to 9 months and then decreased further. In fact, from February 1, 2022 the duration of the vaccine Super Green Pass is reduced from 9 to 6 months. While waiting for all the changes that will take place until the end of the state of emergency - set for March 31, 2022 - and even after the end of the state of emergency, it seems appropriate to point out what changes if the zones switch, now known, white, yellow, orange and red.

• WHITE ZONE

All activities are open, there are no restrictions on travel. You need the basic Green Pass to:

  1. take public transportation, trains and planes;
  2. go to the gym and swimming pool;
  3. go to the hotel and to the attached restaurants;
  4. use the ski facilities.

You need a Super Green Pass to:

  1. go to an indoor restaurant;
  2. go to the movies and theater;
  3. go to the stadium;
  4. attend parties and public functions.
  • YELLOW ZONE
  1. Outdoor mask requirement.
  2. In indoor bars and restaurants, you can consume meals only if you have a Super Green Pass.
  • ORANGE ZONE
  1. You can not leave the municipality of residence, if not for reasons of work, necessity and urgency.
  2. All activities remain open but many will be accessible only with Super Green Pass.

With the Super Green Pass:

  1. you can move freely, even outside your region;
  2. you can go to bars and restaurants, to the gym and indoor swimming pools, to the cinema and the theater;
  3. you can enter fairs and conventions, amusement parks, ski resorts and spas.
  • RED ZONE
  1. You can not leave the municipality of residence if not for reasons of work, necessity, urgency.
  2. Restaurants and bars are closed, but it is allowed the takeaway and home delivery.
  3. Stores closed except supermarkets, grocery stores, newsstands, tobacco shops, pharmacies and those with Ateco code allowed. The bans also extend to those who own the Super Green Pass. *

Finally, the latest news in terms of Super Green Pass are as follows:

  • from January 10, 2022: Super Green Pass requirement for: all public transportation; outdoor food services; indoor and outdoor swimming pools; gyms; spas and amusement parks; museums; hotels and accommodations; parties resulting from civil or religious ceremonies (such as baptisms or weddings); festivals and fairs; congresses; ski facilities; team sports including outdoor (e.g. soccer); game rooms, bingo halls and casinos;
  • from February 15, 2022: mandatory Super Green Pass for all workers (public and private) and professionals aged 50 years or older. Those who are not yet vaccinated will need to get their first dose of the vaccine by January 31, 2022 to get a Super Green Pass valid starting February 15, 2022.

Please refer to the reading of a useful and explanatory table of which, for convenience, is attached below the link:

https://www.governo.it/sites/governo.it/files/documenti/documenti/Notizie-allegati/tabella_attivita_consentite.pdf

Clovers Alert! Is your website compliant with the new regulations that will enter into force on January 10, 2022?

Below we analyze the new guidelines on cookies of the Privacy Guarantor

  1. Guidelines on the use of Cookies and other tracking tools

With Measure no. 231 of June 10, 2021, published in the Official Gazette no. 163 of July 9, 2021, the Privacy Guarantor has provided its guidelines to

a) indicate to website operators the rules to be applied for the use of cookies and other tracking tools and

b) to specify the correct procedures for providing information and acquiring the consent of those concerned (the "Guidelines").

The Guidelines therefore aim to supplement the previous indications of the Privacy Guarantor (Measure no. 229 of 2014) by specifying that the manifestation of will of the interested party is "unequivocal" as well as free and informed and by requiring that data protection is ensured by design and through default settings (privacy by default and by design).

  1. What needs to be done from 10 January?

The following is a summary of the obligations set out in the Guidelines, with particular reference to the methods of acquiring consent and the characteristics of the Cookies disclosure.

a) The acquisition of consent

First, the Guarantor reiterates that are not allowed, as forms of acquisition of consent, the practices:

  • of the so-called "scrolling" (i.e., the downward movement of the cursor), which can be qualified as a positive action suitable to unequivocally manifest the will to give consent to the treatment, subject to exceptions to be seen case by case;
  • the so-called "cookie wall", i.e. a binding mechanism (so-called take it or leave it) in which the user is obliged, in order to access the site, to express his/her consent to the reception of cookies or other tracking tools, except for exceptions to be evaluated on a case-by-case basis.

From an operational perspective, the Guarantor requires the following characteristics to validly acquire the consent of the surfer:

  • at the time of a user's first access to the website, no cookies or other tools other than technical ones will be placed inside the device and no active or passive tracking techniques will be used;
  • at the first access to the web page, an area or a banner will appear of adequate size and such as not to induce the user to make unwanted choices;
  • such banner will have to allow the user to express his consent, through a positive action;
  • it is therefore necessary to allow the user to maintain the default settings and to continue browsing without giving any consent, by clicking on the command to close the banner marked by an "X" positioned at the top and on the right inside the banner;
  • it is necessary to insert (besides the link to the complete informative report) a minimum informative report relative to the use of technical cookies and - previous consent, in order to send advertising messages or to supply the service in a personalized way - of profiling cookies or other tracing instruments;
  • there will also be a command through which it is possible to express one's consent by accepting the placement of all cookies or the use of any other tracking tools and the link to a further dedicated area in which it is possible to select the functions, the so-called third parties and the cookies to the use of which the user chooses to consent.

The Guarantor also states that the banner will not have to be re-presented at each new access and that the user's choice must be duly recorded and no longer solicited for at least 6 months, unless significant changes in the conditions of treatment.

b) The informative report

The Cookies informative report will have to indicate the recipients of the personal data collected and the storage time of the acquired data and can also be made on more than one channel and with different modalities (for example, with pop-ups, videos, vocal interactions). If only technical cookies are used, the Cookies policy may be included in the general policy. The Guarantor then recommends that analytics cookies, used to assess the effectiveness of a service, be used only for statistical purposes.

The above is the general framework of the guidelines of the Privacy Guarantor that - with proper legal support - should be implemented on each website.