| With Ordinances No. 15891, published on 17.5.2022, and No. 22633, published on 26.6.2022, the Joint Sections of the Court of Cassation, in a short period of time, dealt, on two separate occasions, with the relationship between the so-called ‘INCOTERMS’ (‘International Commercial Terms’: the terms elaborated by the International Chamber of Commerce), and with jurisdiction in disputes over international sales contracts that refer to INCOTERMS. The legal framework at the European Union level is outlined by Regulation 1215/2012/EU (the so-called Brussels Regulation 1 bis) which, in Articles 4(1) and 7, establishes, respectively, a general criterion for determining jurisdiction (the place where the defendant is domiciled in a Member State) and an alternative criterion in contractual matters (the place where the performance characterising the contract must be performed, i.e., in the sale of movable goods, the delivery). Within this framework come the INCOTERMS clauses which, in their different versions (EXW, FCA, FOB etc.) regulate not only the time and the place where the risk passes from the seller to the buyer, but also the place of delivery. Thus, what is to be considered as the relevant place of delivery for the purposes of jurisdiction if INCOTERMS clauses (above all EXW and FCA clauses) are mentioned in the contract and identify the place of delivery in a country other than the country where the goods are physically placed in the buyer’s hands (and consequently, other than the final destination of the goods bought and sold)? The solution offered by the Court of Cassation – pronounced by the Joint Sections as the addressee of a preventive regulation of jurisdiction pursuant to Article 41 of the Code of Civil Procedure – can be said to be now consolidated but not without its pitfalls for professionals. On the basis of a restrictive interpretation of the EU Court of Justice’s judgment C-87/10 Electrosteel Europe SA v. Edil Centro S.p.A., the Italian Supreme Court is by now resolute in ruling that – although it is indispensable to take into account all the relevant terms and clauses contained in the contract that are capable of identifying with certainty the place of delivery of the goods – the reference to an INCOTERMS clause is not necessarily decisive. On the contrary, according to the Joint Sections, the insertion of an EXW clause in a contract is, as a rule (!), intended solely to regulate the passing of risks and costs of carriage and, again as a rule, it must be held that, in the absence of unambiguous clauses identifying the place of delivery in a different place, reference must be made to that of the final destination of the goods in order to identify the delivery and consequently the jurisdiction of the respondent’s forum. This attitude of the Joint Sections thus highlights how contractual technique is essential when regulating cross-border negotiation relationships and efficiently governing their development, even in their pathological phase. The conscious use of INCOTERMS clauses, the correct identification of the applicable law and of the competent court, the choice between the arbitration instrument and ordinary jurisdiction, just to give a few examples, are elements of great importance and economic value that must be handled with attention by operators. Without any claim to exhaustiveness, it should be recalled that the scope of INCOTERMS clauses, in the absence of specific contractual provisions conforming to the general provisions of the Civil Code concerning the sale of goods, also assume relevance for tax purposes. From the point of view of direct taxes, it should be noted that Article 109, paragraph 2, letter a) of the Italian Income Tax Act provides that “the consideration for the sale of goods shall be deemed to have been earned, and the costs of acquiring the goods shall be deemed to have been incurred, on the date of delivery or shipment of movable goods“: therefore, the identification of such moment becomes essential, as it is valid for the purpose of determining the precise moment in which the taxable competence is realised and the revenue can therefore be considered earned, within the scope of business income. In the absence of other references, therefore, the INCOTERMS clauses become a necessary reference. For completeness, it is recalled that also for the purpose of Value Added Tax the moment of performance of a transaction of supply of goods is identified in similar terms (except for the cases of prior issuance of the invoice or of collection, in whole or in part, of the consideration). Entry Into Force Of The New Corporate Crisis Code As provided for by Decree-Law No. 36 of 30 April 2022, converted by Law No. 79 of 29 June 2022, on 15 July next, Legislative Decree No. 14 of 12 January 2019, i.e. the “Business Crisis Code”, will enter into force. The new Code, which will enter into force in alignment with the deadline for the transposition of the EU Directive No. 2019/2013 (set for 17 July 2022), will repeal the Bankruptcy Law in force so far since 1942. The provisions of the Business Crisis Code are without prejudice to insolvency proceedings pending at the time of its entry into force; the Bankruptcy Law of 1942 will therefore continue to apply to such proceedings. |
| by Nicolò Manzini and Cristiano Lenti |
