International supply chain: Italian Chambers of Commerce may issue the “force majeure certificates”
The lock down caused by the restrictive measures approved by the government for the Coronavirus emergency has had a huge impact on commercial and international contracts, causing delays in the execution and non-fulfillment of contractual obligations. To support Italian companies in order to justify their violations in front of their foreign counterparts, the Minister of Economic Development, with a provision, allowed the Chambers of Commerce, upon request, to issue a certification attesting the state of emergency and force majeure. In this declaration, the Chamber confirms that it has received from the applicant company a declaration that the applicant was unable to execute the contract due to the contingent measures and the current state of emergency and therefore for reasons beyond their control.
On January 31st the Italian Council of Ministers declared the state of emergency for 6 months due to the Coronavirus pandemic. Shortly after, the Law Decree no. 6 of February 23rd 2020 and then the DPCM of March 8th 2020, March 11th 2020 and March 22nd 2020 introduced the so-called containment measures (sanitary measures, quarantine, full or partial lockdown of cities, travel bans) and suspended most of the commercial and industrial activities. According to these measures, «crucial» and «essential» activities can only continue, for example in the area of food, health, technology, public utilities, transport, and only if the sanitary measures are respected.
These restrictive measures, the stop of commercial and industrial activities and in general the spread of coronavirus pandemic have had a huge impact on commercial and international contracts, especially on international supply chain, causing delay in the performance and default and total failure to fulfil contractual obligations.
These Government measures, which have then been consolidated in the Law Decree no. 19 of March 25th 2020, can be considered a «factum principis» and thus justify the breach of contract (see art. 1218 c.c. and artt. 1463, 1464 Italian c.c. – temporary impossibility of performance). Art. 91 of the Heal Italy Decree further confirmed that compliance with the containment measures provided for by Law Decree no. 6 of February 23rd 2020 may exclude, in individual cases, the debtor's liability for non-performance pursuant to art. 1218 of the Italian Civil Code, as well as the application of any forfeiture or penalties connected with delayed or omitted performance. Moreover, the coronavirus, as global and national wealth emergency, could also be considered a force majeure event. Under the Italian law, there is no definition of force majeure; however, the coronavirus pandemic can be seen as «an extraordinary and unforeseeable event» according to art. 1467 c.c. and in case the event made the performance of one party «excessively onerous», the party who owes such performance can demand the termination of the contract. The counterparty can then offer to «lead back to equity» the contract and thus rebalance the contractual synallagma.
However, within the international commerce and supply contracts, force majeure usually must be evidenced by an official statement in order to justify the breach of the contract.
In order to meet the needs of Italian businesses to justify their breaches in front of their foreign counterparts, on March 25th the Minister of Economic Development (MISE) issued a measure that allows the Chambers of Commerce, upon request, to issue a certification for the state of emergency and force majeure (so-called “force majeure certificate”). In this statement the Chamber, after a general reference to the government measures, confirms to have received, from the applicant business, a declaration that the applicant was not able to perform the contract due to the contingent measures and the current state of emergency and thus for reasons beyond their control.
Therefore, when issuing the certificate, the Chamber of Commerce has to rely solely on what declared by the applicant business which intends to invoke the “force majeure” event.
Consequently, as expressly stated in the declaration scheme circulated by Unioncamere, the Chamber of Commerce will not assume any responsibility regarding the truthfulness of the facts and events attested in the received declaration and it will have no verification obligation of the latter.
Based on the above, it is not possible to exclude that the foreign counterparties may challenge, on a case by case basis, the existence of the actual impossibility of fulfilling contractual obligations due to a “force majeure” event, taking into account different circumstances, such as the effects of the event on the contractual performance and the presence of alternative solutions for the fulfilment of the obligations.
Moreover, it is worth noting that, based on the above mentioned Circular of MISE, it seems that the “force majeure” certifications can be used within the context of international contracts with foreign counterparties only.
Actually, as the MISE specifies, these certificates are necessary within the international trade since the supply contracts often request to provide these certificates in order to invoke the force majeure and justify the breach of contract. However, there is no specific reason that prevents the Italian companies from requesting the certificates to the Chambers and from delivering them to their Italian counterparts within national contracts. However, as said above, these certificates are based on the business declarations only and regard circumstances that are “notorious fact” in Italy or even on law and provisions having the force of law. Consequently, it is questionable whether in an Italian trial these certificates can be considered as proof to justify the breach according to art. 1218 c.c.