Il CSE si apre all' Europa
Pubblichiamo qui di seguito il testo della lettera che l' Avv. Natale Callipari ha inviato, nell'ambito dell'attività di confronto sui temi dell'autotrasporto promossa dal CSE, alle principali Università europee, agli Istituti di ricerca e alle Istituzioni che operano nel settore. Tutto questo al dichiarato fine di coltivare e sviluppare un dibattito sui temi dell'autotrasporto, non limitato ai confini nazionali bensì rivolto ad una prospettiva europea di confronto e comparazione tra i diversi sistemi.
I am the founder of the Law Firm Callipari with offices in Verona, Milan, Rome and Monaco of Bavaria, and I practice law for over thirty years, with passion.
I constantly spend a lot of energy to the scientific study and I published numerous monographs and articles about transport law for academic journals.
I focused my activity mostly on corporate law, transport law, real estate and the medical liability, also writing textbooks and holding conferences in Italy.
I constantly deals with issues related to transports law, offering legal assistance both in out-of-court dispute and judicial litigation, representing companies and private clients.
I also published as author several textbooks such as: “L’autotrasporto di merci per conto di terzi”, C.A.F.I. publisher; “L’autotrasporto di merci per conto terzi” - second edition, C.A.F.I.
publisher; “L’autotrasporto di merci per conto terzi”- third Edition, C.A.F.I. publisher; “Il contratto di autotrasporto di merci per conto terzi”, published by Giuffrè Editore.
I am a lawyer, qualified as a defence counsel in the Italian Supreme Court (Corte di Cassazione), and I assist, both in judicial and extrajudicial litigation, important companies,
with particular reference to transportation legal issues, goods shipping, integrated logistics, tenders or public work contracts and contracts in international trade.
Thanks to my grounded experience into the field, I founded, with some valued friends and colleagues and a qualified staff, the European Studies Centre of the Road Haulage (Centro Studi Europeo dell'Autotrasporto di Merci. CSE), with the scope of creating a web portal, as a free platform open to debate and dialogue. It will be a support available to all operators, national and international ones, as well as a place of aggregation at European level for professionals and companies.
The aim of the project is to enhance the European debate about Transport and Logistics Law, focusing at first on the road haulage and every connected and ancillary developments, with the hope that the dialogue improves, reaching the transport of people sector too.
Therefore, the debate between academic European institutions is our major challenge, because these important issues were never treated before, and moreover because, in the view of the present economic system, this topic is crucial for the European Community itself. However nowadays the problem was addressed exclusively in the European Union meetings, or in the European Institutions in Brussels.
My aim was to conceive a project with the scope to create, within the European Studies Centre of Road Haulage, a convergence and a dialogue on the common outlines and differences between the legal systems of the member states, which will be committed to a constant and updated discussion about practical issues and to effectively verifying the implementation of the rules in force.
Now I would like to summarise which are the main Italian laws that regulate the road freight transport, to provide some basic knowledge about the Italian legal system, which can be the starting point for a useful exchange of information.
Such pillars can be identified as follows:
1) GENERAL RULES IN THE CIVIL CODE AND SPECIAL LEGILSATION
In Italy the discipline of haulage contracts is provided in codes and special regulations; in particular, in addition to the contracts general provisions in the Civil Code (artt.1678-1792), there is a special legislation (Law 298/974, 286/05 and Legislative Decree 112/2008) for the road transport of goods.
2) TRANSPORT ON YOUR BEHALF AND ON BEHALF OF THIRD PARTIES
Our legal system provides different contract rules, depending on whether the transport is made on your behalf or on behalf of third parties. Specifically, the latter is regulated by an autonomous discipline and it is characterized by its own principles, such as:
- the free stipulation of the transportation fee;
- the commercial nature, as relevant to the exercise of the business of both the carrier and the customer;
- the responsibility for the business risk;
- the preference (but not the obligation) given to written contracts, encouraged by significant advantages in favour of those who decide to conclude contracts in that form.
3) OUTSOURCING TRANSPORT
To practice road transport of goods for third parties it is necessary to meet specific requirements, such as:
- the property of minimum one lorry;
- registration in the District Truck Register where the company has its head office, complying with requirements established by the law, which will be discussed below;
- registration in the National Electronic Register (Registro Elettronico Nazionale REN) at the Departments of Motor Vehicles, fulfilling the establishment requirement;
- access to the market;
- the interested subject must be a transport manager able to direct trucking business activities.
4) RESPONSIBILITY CHAIN
In the Italian legal system the main contractor, the charger and the owner of the goods are jointly liable with the carrier in the case of violation, by the latter, of the Highway Code, which regulates road safety and social security. Moreover, the "responsibility chain" system obliges the main contractor to ascertain the regularity of the carrier, before signing the transport contract. It is, therefore, a preliminary
check before the conclusion of the contract of carriage: if the contractor preliminarily verifies the regularity of the carrier, there is no joint liability; otherwise, he will be jointly liable with the carrier and, in the presence of sub-carriers, even with them.
5) DIRECT ACTION
The joint liability system entails that the carrier who performed a transport service on behalf of another carrier may take action directly against all the subjects who ordered the transport itself, in order to obtain the payment of the service. This rule applies especially in case of sub-convection, i.e. when the carrier, which is obliged by the contract (draw directly up with the sender or a previous carrier) to accomplish the carriage, entrusted another carrier with the task, instead of run it directly. This system is provided to ensure the payment of the fee to the final carrier, and as a consequence, the subjects who ordered the transportation will be considered jointly liable, in the limit of the service received and of the agreed remuneration fee, having the right to claim directly against the other party to the contract.
6) GOVERNANCE AT THE MINISTRY OF TRANSPORT THROUGH THE ESTABLISHMENT OF A REGISTER OF CARRIERS
In order to complete the registration in the proper Register, the company, which intend to practice the carriage activity on behalf of third parties, has to comply with three fundamental requirements:
- integrity: which means the absence of sentences imposed by a final judgement, and the absence of impediments specifically identified by the existing legislation;
- professional capacity: is a title that enables to domestic transport or national/international road transport of goods, obtained, except in exceptional cases, by passing an exam;
- financial capacity: it is the availability of financial resources, in order to demonstrate the ability to assume financial obligations, which incur during the accounting year.
I think that the Italian legislative framework would certainly be useful to open the channels that could lead to a debate on the various legal systems in different countries, to perceive the characteristic features and to open a discussion aiming to get useful starting points of thought, which could be increased within conventions and round tables activities, that could also be programmed during important trade events such as Transpotec, that the city of Verona, hosts every two years.
Hoping in your future collaboration and looking forward to your kind reply.
Avv. Natale Callipari
"Dear Maria Pia Munzi
Thank you very much for your invitation to participate in the work of the center.
On behalf of Transport DTU in Denmark I would convey of our interest in taking part in the project.
Looking forward to receive more information on the following steps.
Senior executive officer"
Dear Professor Riguzzi,
I would like to thank you for your letter of 16 March 2016, where you present the activities of the European Studies Centre of Road Haulage which you founded.
The Commission is very interested in such initiatives, which help promote the visibility of the sector and can provide an important source of information for EU policy making in the road : freight transport field.
I would also like to thank you for providing us with an overview of the main features of the Italian legislation concerning road :freight transport. It is crucial for the Commission to understand the characteristics of road haulage legislation in Member States in order to gather best practices and to improve EU legislation and enforcement practice.
As you may know, we are considering several initiatives in the road transport sector in the near future. These initiatives include a possible revision of Regulation (EC) No 1071/2009 on access to the occupati on of road transport operator and of Regulation (EC) No 1072/2009 on access to the intemational road transport market. We have already carri ed out an evaluation of the existing legislation which detected several shortcomings. In the context of this initiative, we will shortly be launching an open pub li e consultation.
I would encourage you to actively participate in this upcoming consultation and to provide any additional input in this context. I would also ask you to keep us infonned about any initiative of the European Studies Centre of Road Haulage which might be
relevant for EU policy making in general.
We look forward to a continued :fi.uitful cooperation with you and the European Studies Centre of Road Haulage.
Head of Unit
|Risposta della Commissione Europea (Directorate Generai for Mobility and Transport)