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SOLE DIRECTOR OR BOARD OF DIRECTOR OF AN S.P.A. SEIZURE OF COMPENSATION WITHOUT THE RESTRICTIONS SET BY ART. 545 OF THE CODE OF CIVIL PROCEDURE

01/06/2017

The Supreme Court (Joint Divisions), with judgment of 20 January 2017, no. 1545, have decided that a sole director or board of director of an S.p.A. (Italian public limited company) are both bound by a corporate relation which – considering the organic identity that occurs between the natural person and the entity, as well as the absence of a requirement of coordination – is not included among those provided under no. 3 of art. 409 c.p.c.. It follows that the compensation due to the above mentioned subjects for the functions carried out in a corporate context can be seized without the restrictions pursuant to the fourth paragraph of art. 545 c.p.c..

 

Following the expropriation of goods in the possession of third parties, upon commencement of such procedure by a bank against a debtor, the first instance judgment decided that the bank should be awarded the total sum set aside by the third parties by way of compensation for their activities. The debtor was a director of one of the third party companies subjected to the seizure as well as a member of the board of directors of one other of such companies. The debtor opposed the interim judgment of assignment, arguing that his activity should be qualified differently, in particular, according to the director, it should fall within the scope of application of Article 409 number 3 of the Code of Civil Procedure, so that in fact a restriction to the seizure would apply (up to a fifth of the salary). The Court upheld the director’s opposition, qualifying the work carried out by the debtor as self-employed, which therefore limited to a fifth the assignment of the sums set aside by the third parties subjected to the seizure. The bank filed a petition to the Supreme Court.

The query submitted to the Joint Divisions of the Supreme Court was whether the determination of the relationship between the public limited company and its director could be qualified as self-employment or autonomous work and, consequently, whether the restrictions on the seizure of salary, equal to one fifth of that, as provided by the fourth paragraph of art. 545 c.p.c., could apply to compensation and wages of the director.

Until the decision in this case, the case law amounted to several consecutive decisions that traced their origins back to the 1980s, and from which two orientations emerged. One of these excluded that, in the context of a governance relationship, there could be an identification of two distinct centres of interest between whom there is an exchange of services, because the regime applicable to S.p.A.s is regulated in such a way as to confer on the director-representative the structural attributions of a body, thereby excluding the existence of a relationship of self-employment and upholding the so-called organic theory. A different orientation was that represented by the so-called contractual theory, which traced the disputes in question to art. 409 no. 3 c.p.c., viewing the relationship between the director and the S.p.A. as possessing the features of continuity and coordination with the activity carried out by the company, features that are required by the regulation in order to determine the jurisdiction ratione materiae of the employment law Court.

A solution to that debate was initially found by the Supreme Court (Joint Divisions) with judgment no. 10680 in 1994, a decision that favoured the qualification of the governance relationship as autonomous work, pursuant to art. 409 no. 3 of the c.p.c., on the basis that “within the corporate organization there are obligatory relations that arise from a continuous, coordinated and prevalent activity, and it is irrelevant that the director is not in a weak contractual position vis-à-vis the company”.

With the present judgment, the Supreme Court (Joint Divisions), annulled the decision appealed by the creditor and rejected the opposition filed by the debtor. The Supreme Court held that the principle stated by the Court of first instance on the restrictions applicable to the credit was wrong, and instead decided that the compensation due to the directors for the activities carried out within a corporate context can be seized in their entirety.


SIMONA LAVAGNINI E LUIGI GOGLIA INTERVISTATI DA LEADERS LEAGUE

19/05/2017

Leggi l’intervista rilasciata dai soci fondatori di LGV al seguente link: 

www.leadersleague.com/en/news/simona-lavagnini-and-luigi-goglia-lgv-the-firm-insists-on-transforming-the-young-legal-professionals-into-full-rounded-attorneys

 

CASE C-527/15 Stichting Brein v Jack Frederick Wullems: COURT OF JUDGMENT ISSUES ANOTHER JUDGMENT ON COMMUNICATION TO THE PUBLIC

10/05/2017

According to the Court of Justice of the European Union, the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC, must be interpreted as covering the sale of a multimedia player on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders. Moreover, acts of temporary reproduction, on a multimedia player of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder do not satisfy the conditions set out in Article 5(1) of Directive 2001/29/EC.

 

Mr. Wullems sold, on a number of internet sites, including his own site, various models of a multimedia player. On that player, Mr. Wullems installed an open source software, which made it possible to play files through a user-friendly interface via structured menus, and integrated into it, without alteration, add-ons available on the internet, created by third parties, some of which specifically linked to websites on which protected works were made available to internet users without the consent of the copyright holders.

Stichting Brein is a Netherlands foundation for the protection of the interests of copyright holders. Stichting Brein asked Mr. Wullems to stop selling the multimedia player and subsequently brought an action against Mr. Wullems before the referring court, arguing that Mr. Wullems had made a ‘communication to the public’, in breach of Article 3, para. 1, of Directive 2001/29. In reply Mr. Wullems submitted that streaming broadcasts of works protected by copyright from an illegal source was covered by the exception listed in Article 5, para. 1, of the same Directive.

Following a request for a preliminary ruling by the Dutch Court, the Court of Justice recalled its case law on communication to the public, and begun by observing that this case did not concern a situation of ‘mere’ provision of physical facilities for enabling or making a communication. Indeed, Mr. Wullems, with full knowledge of the consequences of his conduct, pre-installed onto the ‘filmspeler’ multimedia player that he marketed add-ons that specifically enabled purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enabled those purchasers to watch those works on their television screens. That intervention enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, was quite different from the mere provision of physical facilities, referred to in recital 27 of Directive 2001/29.

The Court then held that Mr. Wullems had made a “communication to the public”, seeing as the ‘filmspeler’ multimedia player had been purchased by a fairly large number of people. Furthermore, the communication at issue in the main proceedings covered all persons who could potentially acquire that media player and had an internet connection, so that it could be said with certainty that the communication had indeed occurred with regard to a “public”. Moreover, the Court held that this was a “new” public in that it had not been taken into account by the copyright holders when they authorised the initial communication. The Court stated that it was common ground that the sale of the ‘filmerspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet. In fact, the advertising of that multimedia player specifically stated that it made it possible to watch on a television screen, freely and easily, audiovisual material available on the internet without the consent of the copyright holders.

As to the exception raised by Mr. Wullems, the Court held that no legitimate use had been made of the copyrighted work, so that the conduct of Mr. Wullems could not be held to fall within Art. 5, para. 1 of Directive 2001/29. Such provision must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.