Ms. Lavagnini, partner of LGV Avvocati, wins an important decision against a holding company, operating in the packaging sector, which claimed the unconstitutionality – specifically a breach of articles 3 and 25 of the Constitution – of a norm providing for mandatory competence of certain Specialized Court Divisions for disputes involving a foreign company (art. 4, para. 1bis of Legislative Decree 168/2003).
The international IT giant had obtained and carried out a civil search against the holding company in relation to computer programs it owned. A lot of unlicensed software was found, so that the multinational corporation insisted for confirmation of the decision authorizing the search. However, the opposing side claimed a series of exceptions, among which was that of unconstitutionality. In particular, they claimed that the norm in question conferred an unjustified privilege on foreign companies.
With ordinance dated February 2, 2016, the Court of Milan rejected the exceptions and confirmed the decision authorizing the search, and recognized, for the first time, certain important principles concerning the competence of the Specialized Court Divisions. Firstly, the Judge affirmed that such an exception was not compatible with the civil search procedure, which is aimed at acquisition of evidence of the unlawful act. Indeed, initiating a judgment of unconstitutionality would risk the dispersion or alteration of that evidence. In any event, there are no grounds for asserting disparity in treatment between Italian and foreign companies, seeing as the law is such as to ensure those foreign corporations (which are at a disadvantage as they have no headquarters in Italy) are subject to a faster procedure before the more experienced Specialized Court Divisions.