START A NEW SMALL ENTERPRISE IN ITALY

Transcription

1 START A NEW SMALL ENTERPRISE IN ITALY 1

2 Start a new small enterprise in Italy By Julien DUBOIS (University of ParisX-Nanterre/ University Alma Mater Studiorum of Bologna) Index & Prof. Andrea LASSANDARI (University Alma Mater Studiorum of Bologna) Introduction.2 I) The notion of enterprise in the Italian legal system... Errore. Il segnalibro non è definito. I.1) The notion of enterprise and the various legal forms to constitute a company. Errore. Il segnalibro non è definito. I.2) The notion of small enterprise... Errore. Il segnalibro non è definito. 1) Il piccolo imprenditore in the Italian Civil Code:...Errore. Il segnalibro non è definito. 2) Two kinds of piccolo imprenditore : l impresa artigianale (craft enterprise) and the impresa familiare (family-run enterprise)...errore. Il segnalibro non è definito. II) Small enterprise and community law... Errore. Il segnalibro non è definito. II.1) How to apply the new SME definition?... Errore. Il segnalibro non è definito. 1) Are you an enterprise?...errore. Il segnalibro non è definito. 2) What are the new thresholds?...errore. Il segnalibro non è definito. 3) What s your enterprise s typology?...errore. Il segnalibro non è definito. II.2) Applying the new definition: are you an autonomous, a linked or a partner enterprise?errore. Il segnalibro non è definito. 1) Are you an autonomous enterprise?...errore. Il segnalibro non è definito. 2) Are you a partner enterprise?...errore. Il segnalibro non è definito. 3) Are you a linked enterprise?...errore. Il segnalibro non è definito. III) A concrete application of these principles in the Italian legal system by creating a new small company and taking into account the economical and legal issues... Errore. Il segnalibro non è definito. III.1) Project... Errore. Il segnalibro non è definito. III.2) Legal form... Errore. Il segnalibro non è definito. III.3) The constitution procedure of our company... Errore. Il segnalibro non è definito. III.4) Applicable rules in labor law for the development of our company Errore. Il segnalibro non è definito. 1) Employment...Errore. Il segnalibro non è definito. 2) Safety obligations...errore. Il segnalibro non è definito. 3) Suspension and termination...errore. Il segnalibro non è definito. Conclusion.18 ANNEXES:... Errore. Il segnalibro non è definito. This topic is quite interesting by showing us the complexity of the word «enterprise». Of course we will propound you a definition of it further, because this is not the kind of thing we can 2

3 immediately explain. It should be too easy and intellectually dishonest. But we can already notice that micro and small companies play a central role in the Italian economy, representing a major source of entrepreneurial skills, innovation and employment. However they are often confronted with the imperfections of the Italian market having frequently difficulties in obtaining capital or credit, particularly in the early start-up phase for example. The «enterprise» complexity is made of theoretical and concrete concepts, economic, commercial and legal concepts that could be understood only with some preliminary explanation about all the reciprocal action we can find ruling a small business. And because the first component and the main component of the «enterprise» is the human being our thesis will be focused on the human dimension of the «enterprise». I)ThenotionofenterpriseintheItalianlegalsystem After a rapid presentation of the various legal forms that we can find in the Italian system (I.1) we will analyse the notion of small enterprise (I.2) I.1)Thenotionofenterpriseandthevariouslegalformstoconstituteacompany The notion of enterprise is linked to the entrepreneur s one. The Italian civil code defines the entrepreneur at the article 2082 of this code as the one who practises in a professional way an organized economic activity with the aim of producing or exchanging goods or services. Thus, the notion of enterprise encompasses the notion of entrepreneur and the notion of company (understood as organizations of people and capital goods created by the private autonomy to practise in common a productive activity). These structures, even if they re not exclusive, are foreseen by the law to practise in an associated model way the enterprise activity. We can find 8 legal forms to rule a company in the Italian law: - La società semplice - La società in nome collettivo (general partnership) - La società in accomandita semplice (limited partnership) - La società per azioni (joint-stock company, incorporated company) - La società in accomandita per azioni (partnership limited by share) - La società a responsabilità limitata (limited liability company) - La società cooperative (cooperative) - Le mutue assicuratrice (insurance company) 3

4 Two other legal forms came with the development of the community law: - La società europea (2001) (European company) - La società cooperativa europea (2003) (European cooperative) But if there are a lot of legal forms of company there is only one legal notion of the enterprise that is given by the article 2247 of the italian civil code. This article is about the legal act that creates a company. It says: with the company s constitutional act (contratto di società) two or more persons confer goods or services to practise in common an economic activity with the aim of sharing the profits. But since a few years the associated model is not required any more for la società a responsabilità limitata (limited liability company) (d.lgs , n 88), now only one person can constitute this kind of structure by a unilateral act. It s the same for the società per azioni (art italian civil code, 2, in the text introduced by the d.lgs , n 6). A unilateral act is enough to constitute a società per azioni. Let s see now how the notion of small enterprise is considered. I.2)Thenotionofsmallenterprise The small enterprise (more precisely the dimension of a small enterprise) is not defined in the Italian Civil Code. But, however, we can find in it the definition of the small businessman (entrepreneur), piccolo imprenditore, that is one of the most important figure in our topic. For the dimension of a small enterprise we have to refer to the community law. Il piccolo imprenditore (small businessman/entrepreneur): the piccolo imprenditore is subjected to the statuto generale dell imprenditore. But he s exempted from the accounting entry (journal entry) (art CC, 3 co), and he can t be bankrupt and subjected to competition proceedings (art CC), even if he rules a commercial activity. Furthermore the inscription at the registro delle imprese recently foreseen by the law (L 29/12/1993) doesn t have the legal advertising function. The small enterprises are subjected to an abundant special legislation with the aim of promoting their development thanks to financial, labor and taxation facilities. 1) Ilpiccoloimprenditore intheitaliancivilcode: The notion of the piccolo imprenditore is given by the article 2083 CC: the piccoli imprenditori are: those who farm directly a fund (?), the craftsmen, the small traders and those who practise a professional activity mainly organized with the own work and with relatives (members of the family). So to have a small enterprise it is necessary: - That the entrepreneur rules his business with his own work 4

5 - That his own work or his relative s one prevails regarding the work of other employee or regarding the capital. 2) Two kinds of piccolo imprenditore : l impresa artigianale (craft enterprise) and the impresafamiliare (family runenterprise) We will study l impresa artigianale first (a), and after we will study impresa familiare (b). a) L impresa artigianale (craft enterprise): The parent act of the 1985 (L n 443, ) gives us a definition of the craft enterprise. This definition is based on: - The aim of the company that can be any productive activity of goods, even semi-finished, or any service fee; - The role of the craftsman in the enterprise, who has to use his own work, even manual, in a predominant way in the productive process. Furthermore this law imposes limits as for the employees who can be used for example. (We can notice that this law in its way to proceed generates a dimensional growth of the craft enterprise.) Another important aspect foreseen by this law is the typology that a craft enterprise can use for its legal constitution. This law foresees for example as possible typologies: the società di persone, the società a responsabilità limitata, and the società cooperative provided that it fulfils some necessary conditions. Today the recognition of the craft qualification in accordance with the parent act (of 1985) is not enough to be exempted from the statuto dell imprenditore commerciale. A craft enterprise can go bankrupt if its dimensional limits exceed those foreseen by the law about bankruptcy (legge fallimentare of 2007). b) L impresa familiare (family-run enterprise): This kind of enterprise is formed with the relatives of the main entrepreneur. It means that can collaborate working together: wife, husband, third degree relatives (until the nephew), brother in law, sister in law.in other words the nuclear family. There is an important fact that we have to speak about: a family-run enterprise is not always a small enterprise, and it can happen that a small enterprise is not a family-run one! 5

6 The reference article is the 230-bis one of the civil code. This article is very popular because it allows the dividing up of the corporate income between the entrepreneur s relatives. This article has got a protection function too, giving administrative and patrimonial rights to the members of the nuclear family who work in a continuous way in the family or in the enterprise. At a patrimonial level: - They ve got a right to subsistence; - They ve got a right to share in the profits in proportion of the quantity of their own work in the enterprise or in the family; - They ve rights to goods (assets) acquired with the benefits and they ve rights to the value increase of the enterprise even due to the start up; - They ve got a pre-emptive right on the enterprise in case of hereditary division or in case of transfer of the enterprise. At an administrative level: It s foreseen that the decisions about the gestione straordinaria (extraordinary administrative management) or the very important decisions (how to use the benefits, termination of business ) must have to be approved by the majority of the relatives who work for the enterprise. It s foreseen too that the right to share in the benefits is transferable only to a member of the nuclear family and only with the unanimous consent of all the relatives already sharing in the benefits. Moreover this right is liquidable in money if a relative doesn t work in the enterprise anymore or in case of transfer of the enterprise. L impresa familiare as a sole trader. It means that: - The capital goods belong only to the entrepreneur (who is the employer too); - The patrimonial rights of those who work for the family enterprise are just credit right towards to the family entrepreneur; - The atti di gestione ordinaria (ordinary management deed) belong exclusively to the entrepreneur. Furthermore only the entrepreneur will be liable in civil law toward a third party for the privity of contract. And if the enterprise can be defined as a commercial one (and not small) only the entrepreneur-employer can be bankrupt. As we can see the dimension of a small enterprise is not really defined by the Italian commercial law. Let s see it in the community law. 6

7 II)Smallenterpriseandcommunitylaw The European Commission adopted on 6 May 2003 a new Recommendation 2003/361/EC regarding the SME definition which replaced Recommendation 96/280/EC as from 1 January This revision takes account of the economic developments since 1996 and the lessons drawn from the application of the definition. One of the aims of this revision is to increase legal certainty, while reducing possibilities of its abuse, particularly with regard to state aid, Structural Funds and the Research and Development Framework Programme. So, to the question: why a new definition? the European Commission answers: to update threshold, to promote micro enterprises, to improve access to capital, to promote innovation and improve access to Research and Development and to take account of different relationships between enterprises. This Recommendation concerns all Community policies applied within the European Economic Area in favor of SMEs and is addressed to the Member States, the European Investment Bank and the European Investment Fund said the European Commission. This Recommendation has been approved in a particular context: micro, small and medium-sized enterprises are, as everybody knows, socially and economically important, since they represent 99 % of all enterprises in the European Union and provide around 65 million jobs and contribute to entrepreneurship and innovation. However, they face particular difficulties which the European Union and national legislation try to redress by granting various advantages to SMEs. So a legally secure and user-friendly definition is necessary in order to avoid distortions in the Single Market. Furthermore we can add that the revision ensures that enterprises which are part of a larger grouping and could therefore benefit from a stronger economic backing than genuine SMEs, do not benefit from SME support schemes. Moreover, from a financial point of view, the increase of the new financial ceilings is designed to take into account subsequent price and productivity increases since 1996, however the headcount ceilings remain fixed. II.1)HowtoapplythenewSMEdefinition? According to the European Commission to apply the new SME definition you ve got to determinate if you re an enterprise first, and then you ve got to study the new threshold and the typology of your enterprise to calculate your data. 1)Areyouanenterprise? According to the new definition an enterprise is any entity engaged in an economic activity, irrespective of its legal form. Thus, the self-employed, family firms, partnerships and associations regularly engaged in an economic activity may be considered as an enterprise. In this new definition it is the economic activity the determining factor, not the legal form. 7

8 2)Whatarethenewthresholds? Once you ve verified you re an enterprise you ve got to determinate the data of your enterprise, following three criteria: staff headcount, annual turnover, annual balance sheet. The new criteria are: Enterprise category Headcount Turnover or Balance sheet total medium-sized < million 43 million small < million 10 million micro < 10 2 million 2 million (source: Staff headcount: It s a crucial criterion for determining in which category an SME falls. It covers full-time, part-time and seasonal staff and includes: employees, person working for the enterprise being subordinated to it and considered to be employees under national law, ownermanagers, partners engaged in a regular activity in the enterprise and benefiting from financial advantages from the enterprise. Warning: apprentices or students engaged in vocational training with apprenticeship or vocational training contract are not included in the staff headcount. Nor do you include maternity or parental leave. The Staff Headcount is expressed in Annual Work Units (AWU); anyone who worked full-time within the enterprise during the entire reference year counts as one unit. Part-time staff, seasonal workers and those who didn t work the full year represent fractions of one unit. Annual turnover/balance sheet: The annual turnover is determined by calculating the income that your enterprise received during the year in question from its sales and services after any rebates have been paid out. Warning: Turnover shouldn t include value added tax (VAT) or other indirect taxes. 8

9 The annual balance sheet total refers to the value of your company s main assets. 3)What syourenterprise stypology? The new definition introduces three different categories of enterprises. Each corresponds to a type of relationship which an enterprise might have with another. Those three different categories are: the autonomous enterprise (minority partnership -less than 25%- with other enterprises), the partner enterprise (if the holding rises to no more than 50%), and above that ceiling the enterprises are linked enterprises. Depending on the category in which your enterprise fits, you may have to include data from one or more other enterprises when calculating your own data. So to work out your individual data you will have to establish whether your enterprise is autonomous, a partner or linked. To do this you must take account of any relationships you have with other enterprises. II.2)Applyingthenewdefinition:areyouanautonomous,alinkedorapartner enterprise? 1)Areyouanautonomousenterprise? You re autonomous if: If you are totally independent, id est if you have no participation in other enterprises and no enterprise has participation in yours. You have a holding of less than 25% of the capital or voting rights (whichever is the higher) in one or more enterprises and/or outsiders do not have a stake of 25% or more of the capital or voting rights (whichever is the higher) in your enterprise.! If you re autonomous it means that you re not a partner or linked to another enterprise! Establishing the data of your enterprise: If you are autonomous you have to use only the number of employees and the financial data contained in your annual account to check if you respect the threshold above mentioned. Exceptions: You may still be ranked as autonomous, and thus as not having any partner enterprises even if this 25% threshold is reached or exceeded by any of these investors: 9

10 - Public investment corporations, venture capital companies and business angels. (business angels can be defined as individuals or group of individuals with a regular venture capital investment activity who invest equity capital in unquoted business) - Universities and non-profit research centers - Institutional investors, included regional fund - Autonomous local authorities with an annual budget of less than 10 million euro and fewer than 5000 inhabitants. It s possible to remain autonomous while having one or more of the investors listed above. Each of these may have a stake of no more than 50% in your enterprise, provided they re not linked to another one. 2)Areyouapartnerenterprise? This type of relationship represents the situation of enterprises which establish major financial partnerships with other enterprises, without one exercising effective direct or indirect control over the other. Partners are enterprises which are neither autonomous nor linked to another one. So, you are a partner enterprise if: You have a holding equal to or greater than 25% of the capital or voting rights in another enterprise and/or another enterprise has a holding equal to or greater than 25% in yours. You are not linked to another enterprise. This means that your voting rights in the other enterprise, and vice versa, do not exceed 50%. Establishing the data of your enterprise: If you are a partner enterprise, you must add a proportion of the other enterprise s staff headcount and financial details to your own data when determining your eligibility for SME status. This proportion will reflect the percentage of shares or voting rights (whichever is the higher) that are held. Thus, if you ve got a 30% stake in another enterprise you add 30% of its headcount, turnover and balance sheet to your own figure. If there are several partner enterprises, the same type of calculation must be done for each partner enterprise situated immediately upstream or downstream from yours. The case of public bodies: 10

11 An enterprise is not a SME under the new definition if 25% or more of its capital or voting rights are directly or indirectly controlled, jointly or individually, by one or more public bodies. The reason for this stipulation is that public ownership may confer to the enterprise several advantages (financial for example). In addition, it s often impossible to calculate the relevant staff and financial data of public bodies. The investors above listed like Universities and autonomous local authorities for example which have the status of public bodies under national law are not concerned by this rule. They can hold a participation from 25% to 50% (but no more) in an enterprise without it losing its SME status. Calculating the data of your enterprise: For example, if your enterprise A owns: (x)% of C, (y)% of D, while B has (z)% stake in your business, (with 25 x,y,z 50) to calculate your headcount and financial data you ll have to add the relevant percentages of the data for B, C and D to your total data. Your total = 100% of A + (z)% of B + (x)% of C + (y)% of D 3)Areyoualinkedenterprise? This type of relationship corresponds to the economic situation of enterprises which form a group through the direct or indirect control of the majority of voting rights of an enterprise by another or through the ability to exercise a dominant influence on an enterprise. Two or more enterprises are linked when they have any of the following relationship: One enterprise holds a majority of the shareholders or members voting rights in another. One enterprise is entitled to appoint or remove a majority of management or supervisory body of another. the administrative, A contract between the enterprises, or a provision in the memorandum or articles of association of one of the enterprises, enables one to exercise a dominant influence over the other. One enterprise is able, by agreement, to exercise sole control over a majority of shareholders or members voting rights in another. (Ex: wholly-owned subsidiary = filiale) 11

12 To resume: linked enterprise my enterprise holds more than 50% of the shareholders or members voting rights in another and/or another hold more than 50% in mine. Establishing the data of your enterprise: All 100% of the linked enterprises data must be added to those of your enterprise to determine if you comply with the staff headcount and financial thresholds of the new definition. If the enterprise which you re linked is also linked in a chain to other enterprises, you must add 100% of the data of all these linked enterprises to yours. Calculating the data of linked enterprises: For example: your enterprise A owns: (x)% of C and (y)% of D, while B a (z)% stake in your business. (with x > 50, y > 50, z > 50) As the holding in each case is above 50%, you ll take 100% of the data of each of the four enterprises concerned when calculating your headcount and financial threshold. Your total = 100% of A + 100% of B + 100% of C + 100% of D This definition given by the European Commission is an important tool to implementing efficient measures and programmes to support the development of small and medium enterprises. Therefore Members States, like Italy, together with European Investment Bank and the European Investment Fund are invited to apply it as widely as possible. III)AconcreteapplicationoftheseprinciplesintheItalianlegalsystemby creatinganewsmallcompanyandtakingintoaccounttheeconomicaland legalissues In this part we will quickly establish the factice data of our project (III.1), and will present the legal form we have decided to adopt (III.2) to constitute legally this new company (III.3). After that we will study the Italian labor law to see how we can develop our activity always in compliance with the law (III.4). 12

13 III.1)Project Type of activity: consultancy firm Staff forecasted: 35 persons Number of potential shareholder/capital amount: 10 / euro Aim of the company: to make a profit selling audit and tax consultancy services III.2)Legalform In my opinion the società per azioni (joint-stock company), even if this legal form is usually used for medium and bigger enterprises, is adapted to our type of activity because it supplies a lot of advantages of which we will speak about further (legal status, limited liability of the associates, corporative organization ). Moreover, our consultancy activity will not have the aim of being a small enterprise forever so we need a legal form that can further its transformation in a bigger enterprise and the società per azioni, in my opinion, is well adapted to this wish. 1) Our type of activity has got an intellectual appearance, so do we belong to the intellectualprofessions? First of all, we can notice that this kind of activity has got an intellectual aspect and thus it should be considered as an intellectual profession. But this is not exactly the case. Our consultancy activity won t have a personal nature because our employees (even if they re lawyers for example), in the request processing, will not be chosen personally by the client. So in this way to proceed it excludes us from our submission to the intellectual professions rules (for example: L n 1815 of the 23/11/1939, and art and next of the Italian civil code). 2)Theadvantagesofajoint stockcompany In the Italian system the advantages of a joint-stock company are: - The legal status of the enterprise - The limited liability of the associates - The corporative organization - The quota of participation represented by shares a) The legal status of the enterprise 13

14 A joint-stock company by having a legal status is treated by the law as an individual possessor of a right. It means that the enterprise is distinct from the associated partners and has got a patrimonial autonomy. Moreover, only the enterprise can be defined as entrepreneur. b) The limited liability of the associates To have an all encompassing view of things we can say that in this kind of company all the associates do not take on personal responsibilities, but only the enterprise with its social assets. c) The corporative organization of the enterprise The corporative organization of the enterprise provides a counterweight to the limited liability of the associates. For an enterprise having a corporative organization means that the enterprise is based on three main components: an assembly (for extraordinary or general meeting), an organ dedicated to the management, and another organ dedicated to the management audit and other verifications The influence of an associate during an extraordinary or a general meeting is determined by his quota of participation (by shares). Thus the principle is the majority by shares. d) The quota of participation represented by shares The quota of participation of the associates is represented by homogeneous and standardized shares. The shares represent the associates participation. They ve got an equal value which give to the associates equal rights (art.2348 of the Italian civil code). Example: if the subscribed capital is equal to 1000 euro, it can be divided in 100 shares of 10 euro. Each share represents rights and power for shareholders. Moreover, shares are freely transferable, but their circulation thanks to apposite documents is subjected to the proof of credit (titoli di credito) rules. Thus, the substitution of associate is made possible. Now let s see the constitution procedure of our company. III.3)Theconstitutionprocedureofourcompany The constitution of a joint-stock company hinges on two stages: - The stipulation of the constitutive act 14

15 - The registration of the constitutive act in the registro delle imprese. (It gives to the enterprise its legal status and marks the beginning of its life : art of the Italian civil code). 1)Theconstitutiveact:formandcontents As we said at the beginning of our topic a unilateral act is enough to constitute a società per azioni (joint-stock company), but it can be constitute by a contract as well. In any case the constitutive act has to be a legal document (art of the Italian civil code) on pain of nullity (art.2332 of the Italian civil code). The constitutive act must contain: - The number of the associates, their name, number and allocation of the shares - The name of the company, the city location (the name of the company must contain the S.P.A designation -art of the Italian civil code- and can t be the same as an another already existing art.2567) - The type of activity - The subscribed and deposited capital amount - The number and value of the shares, specifications and modalities of the circulation and modalities of the issue - The possible value of the credit - The possible profits rules - The possible profits rules for the associates - The administration system, number of directors, power. - The composition of a trade/labor union board - The nomination of the executive director in the administration system - The value of the expenses for the creation of the company - The term, duration of the company 15

16 The content of the constitutive act is wider than the statutes one. The statutes contain the will of constitute a company with its fundamental data. It can be considered as a part of the constitutional act. Thus, it must be done by a legal document too. 2)Theconditionsoftheconstitution The first condition is that a joint-stock company has to be constituted with a minimum capital of euro. The article 2329 of the Italian civil code imposes other conditions: - the entire capital stock must be subscribed - the measures about the contributions (art and 2343 of the Italian civil code) must be respected; and in particular the one that foresee that 25% of the contributions (in money) must be deposited with a bank - the authorizations and the other conditions requested by special laws for the constitution of the company regarding its particular aim must subsist The contributions in money have to be deposited before the stipulation of the constitutional act and remain frozen (blocked) until the end of the entire procedure of constitution. But the subscribers have got a right to recover their money if the company is not registered yet within a period of 90 days from the stipulation of the constitutive act. After this due date the constitutive act loses its efficiency. 3)Theregistrationinthe registrodelleimprese The notary who receives the constitutional act has to deposit it, within a period of 20 days, in the registration office of the registro delle imprese, situated in the district of the headquarters of the new company, enclosing all the documents requested for its constitution in compliance with all the conditions above listed. If the notary doesn t provide for it, all the administrators have to act in this sense then. And if both of them are inactive financial sanctions are forecasted by the law (art.2630 of the Italian civil code). The notary when he receives the constitutional act has to verify it: he has to do a legal control (form and contents) to see if the new company is in accordance with the law. The causes of nullity can appear in 3 cases: - when the constitutional act is not a legal document 16

17 - when the aim of the company is illicit - when the indications in the constitutional act about: the name of the company, the contributions, the capital stock amount or the aim of the company are missing. At this point we will admit that our company is regularly constituted and registered. Let s see the applicable rules in the labor law for the development of our enterprise. III.4)Applicablerulesinlaborlawforthedevelopmentofourcompany In a logical way we need to employ some people to develop our activity (we will focus our analysis on the handicapped persons) (1) but we also need to regulate it (2). We will mainly focus our thesis on the particularities of the small enterprises (for further information please refer to the annex). 1)Employment As a small enterprise do we have to respect some particular rules? The principle is the direct employment (Law n 608/1996 and DD.lgss 181/2000, 297/2002, 276/2003). But in fact the Italian law imposes to us, in our case, the hiring of one handicapped person (Law n 68 of the 12/03/1999, art.3), as we can see on the following summary. Compulsory employment of handicapped persons according to the Law n 68 of the 12/03/1999, art 3: Total number of employees working for you Number of handicapped persons you ve to employ >50 7% of the total number of employees working for you From 36 to 50 2 From 15 to 35 1 But we ve got this obligation only if we employ more than one person at a time and if this employment is additional (art 3, 2). Exceptions: you can be exempted from the employment of a handicapped person if: your enterprise is in a crisis situation that makes the respect of this law impossible (suspension case) or if your activity imposes perfect physical conditions for your employee like in the building industry for example (exclusion case). Moreover you can be partially exempted of it too if you can t respect the law because of the special conditions of your activity; then you ll have to pay an exempting contribution to the fondo regionale per l occupazione dei disabili. 17

18 But to be in accordance with the article 3 (L n 68/1999), the article n 7 of the same Law (n 68/1999) foresees that we have to request these handicapped persons to the appropriate offices (a numerical request is the rule) or by means of conventions (art.11). But these requests have to be nominative for: - the employments of an enterprise that have from 15 up to 35 employees - 50% of the employments of the enterprises that have from 36 up to 50 employees - 60% of the employments of the enterprises that have more than 50 employees. Even if it s a quite synthetic presentation, at this point we will admit that we ve got employed regularly our staff forecasted. Let s see now our safety obligations towards them. 2)Safetyobligations We ve got, toward our employees, several safety obligations (healthcare, place, machine, rate - of work- d lgs 81/2008). These safety obligations find their foundation in the Treaty of Rome (1957) at the article 137 for example, as well as in the Italian civil code (art 2087). Here we will only show the particularity of small enterprises. For further information and a selective bibliography please refer to the annex. The safety obligations belong to the employer who can be held responsible. One of the first measures he has to take is the valutazione dei rischi (estimation of the risks). The second is the redaction of the documento per la sicurezza (document about security). About the valutazione dei rischi (estimation of the risks) the D. Lgs 81/2008 foresees that the employers who have until 10 employees have to do the estimation of the risks until 18 months after the coming into force of this decree (art 29 d lgs 81/2008). The Italian law introduced another important character regarding the small enterprises and those two preliminary measures: it s the rappresentante per la sicurezza (security representative). We will focus on his nomination modalities (d lgs 81/2008). Art. 47 D. Lgs 81/2008 He has to be elected or nominated by the workers of all the enterprises or any productive entity. 18

19 - In the enterprises or in any productive entity that count until 15 employees the rappresentante per la sicurezza is directly elected by the workers. - In the enterprises or in any productive entity that count more than 15 employees he has to be elected or nominated by the workers within the labor union in the enterprise. Furthermore: the enterprises that count until 200 employees must have at least 1 rappresentante per la sicurezza ; those that count from 201 up to 1000 employees at least 3 and those that count more than 1000 employees at least 6. Moreover, in the enterprises that count more than 15 employees the employer has to organize a meeting once a year with: himself or his representative, a doctor, the rappresentante per la sicurezza and the person in charge of the prevention and protection of the risks service (art 35 D Lgs 81/2008). 3)Suspensionandtermination a) La «Cassa Integrazione Guadagni» (CIG) The Cassa Integrazione Guadagni represents a kind of public intervention in the labor market. Its aims are protecting the enterprise, the occupation and the salaries of the workers. But it represents at the same time a hypothetic case of work suspension because of fact inherent in the enterprise. The CIG can act in two ways: with an ordinary intervention and with an extraordinary intervention. - For the ordinary intervention the causes ( cause integrabili ) have to be the following ones (L n 164/1975): a) situation of the enterprise created by temporary events that can t be imputable to the entrepreneur or to the workers; b) situation of the enterprise determined by temporary situations of the market. - For the extraordinary intervention: a) restructuring, reorganization or conversion of the enterprise (L n 160/1988); b) crisis of the enterprise determined by ministerial criterion about territorial or sector-based situations (L n 223/1991). The ordinary intervention concerns the industrial enterprises (L n 164/1971 art. 1). The extraordinary intervention concerns the enterprises with more than 15 employees (L n 223/1991, art.1) and is not exclusively reserved to the industry any more (L n 236/1993, art. 8) and is extended to other sectors: commercial enterprises, expedition and transport enterprises, travel agencies with more than 50 employees, for example. For the implementation of the CIG (ordinary or extraordinary intervention) the law introduces precise dates to present the request and forecasts several obligations for the enterprise to resort to the syndical procedures: - Ordinary intervention: a) successive communication to the RSA or RSU (rappresentanze sindale aziendale o unitarie) and to the provincial syndical organizations + joint exam (esame congiunto) (until 5 days) for suspension or reduction of the working hour superior to 16 hours a week in case of events objectively unavoidable that make the reduction and/or the suspension of the productive activity sudden; b) 19

20 preventive communication to the RSA or RSU and to the provincial syndical organizations, and joint exam (until 25 days if there are more than 50 employees in the enterprise or 10 days if there are less than 50 employees) - Extraordinary intervention: preventive communication + joint exam (until 25 days if there are more than 50 employees in the enterprise or 10 days if there are less than 50 employees) (art. 2 DPR 218/2000, art 3 D lgs 469/1997). b) Termination: Individual redundancy and tutela reale (real protection) In case of illegitimate redundancy art 18 of the Statuto del Lavoratore reinstatement of the employee. Application: to all the employers, entrepreneur or not that: a) employ more than 15 employees in the productive entity where the redundancy took place; or b) employ in the same locality (even with several productive entities) more than 15 employees; or c) employ a total of more than 60 employees (even if a) an b) are not respected). For the agricultural enterprises the number of employees of a) and b) is reduced to 5 employees. Mass redundancy (Law n 223/1991): staff cutbacks and mobility (relocation) The Law n 223/1991 foresees two motives for a mass redundancy: staff cutbacks and mobility (understood as relocation). Staff cutbacks (art 24): for this kind of redundancy it s necessary that the entrepreneur employ more than 15 persons and that he s got the will to make almost 5 employees redundant. Mobility (art.4): the entrepreneur must employ more than 15 persons. It s a good example of what we can do as an employer! 20

21 We have presented here a few aspect of the creation of an enterprise in Italy and as you can see there are a lot of disparate laws! As a conclusion we can easily admit that this topic is quite complex. It encompasses labor and commercial law s aspects, but also financial problems. The Italian legal system is not the most efficient one in Europe (cost of the procedure, administrative obstacles ) as a few European newspaper can notice it ( Sueddeutsche - Germany- for example), but it has got its own way to proceed in a globalised world where exchanges are internationalized. 21

22 ANNEXES: Selectivebibliography: Manuale di Diritto Commerciale, G.F. Campobasso, 4 ed. UTET Giuridica, 2008 Codice di Diritto Commerciale 2008, ed. Simone Finanza e credito in Italia, I risparmi delle famiglie e gli investimenti delle imprese, F. Cesarini, G. Gobbi, ed. Il Mulino, 2008 Diritto del Lavoro, II. Il rapport di lavoro subordinato, F. Carinci, R. De Luca Tomajo, P. Tosi, T. Treu, 6 ed. UTET Giuridica, 2008 Codice di Diritto del Lavoro 2008, ed. Simone Others:

23 With the kind support of the LLP-Erasmus IP programme of the European Union 23