- Tribunale di Bergamo
SERVICE CONTRACT FOR COLLECTION OF LOCAL TAXES - BETWEEN AN ITALIAN MUNICIPALITY AND AN ITALIAN COMPANY - REFERENCE TO UNIDROIT PRINCIPLES AND PRINCIPLES OF EUROPEAN CONTRACT LAW TO INTERPRET AND SUPPLEMENT APPLICABLE DOMESTIC LA (ITALIAN LAW)
CHANGE OF COLLECTING METHOD INTRODUCED BY LAW - COLLECTING METHOD PREVIOUSLY USED BY COMPANY NO LONGER APPROPRIATE - REQUEST BY COMPANY TO RENEGOTIATE ORIGINAL CONTRACT - UPON REFUSAL BY MUNICIPALITY, COMPANY CLAIMS BREACH BY MUNICIPALITY OF ITS OBLIGATION TO RENEGOTIATE CONTRACT AS CONTAINED IN CONTRACT - CLAIM DISMISSED BECAUSE COURT HELD THAT IN CASE AT HAND MUNICIPALITY HAD FULFILLED ITS DUTY TO RENEGOTIATE CONTRACT - REFERENCE TO UNIDROIT PRINCIPLES AND PRINCIPLES OF EUROPEAN CONTRACT LAW
As a result of a public tender, municipality A concluded a contract with company B conferring to the latter the revenue collecting service, including the voluntary collection of ICI (Italian municipality tax). In 2011, an amendment of the tax system introduced a new tax called IMU intended to replace ICI. The law introducing this new revenue also provided for a compulsory collecting method differing from the one used previously that rendered the collecting service carried out by company B inappropriate and ineffective, exclusively in relation to that specific revenue. Company B claims that municipality A shall be declared the defaulting party because of the breach of the obligation to renegotiate the contract.
The court dismissed the claim on the following grounds. The parties agreed a renegotiation clause that was included into the contract. The court referred to the UNIDROIT Principles and to the Principles of European Contract Law in order to mention soft law sources that provide for hardship clauses, considered a good contractual technique aimed at avoiding the termination of the contract. The court considered that municipality A fulfilled its obligation to carry out the renegotiation of the contract and therefore the claim was dismissed.
(cf. C. Martinetti in "Perspectives in Practice of the UNIDROIT Principles 2016", IBA Publication 2019, p. 251)