Legal Advice for Expats in Italy

ABOUT THE AUTHOR Michele Capecchi is a registered lawyer and member of the Florence Bar Association. He holds a Master’s of Law in American Law and International Legal Practice from the Loyola Law School in Los Angeles. He will consider relevant inquiries sent to redazione@theflorentine.net and info@CapecchiLegal.com. www.capecchilegal.com Disclaimer: The information is based on the opinion of an independent expert and does not claim to be complete, updated or definitive.

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TABLE OF CONTENTS

6

Introduction

8

Visas

20

Taxes

24

Civil unions and de facto couples

28

Divorce (general)

35

International divorce

41

Alimony, financial rights after divorce and child support

45

Women’s rights

48

Opening a business

53

Buying a property

57

Renting a property

64

Driving

68

Ruined holidays

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INTRODUCTION I began studying law in Florence in 1994, when law school was not yet so open to globalization. After I got my law degree, I started practicing law in the same firm where I am now, and I became enthusiastic about mediation and arbitration, negotiation and finding amicable agreements to seemingly impossible problems. There are so many cases and legal issues that can be resolved in other ways that do not involve going to court. I wanted to learn more in order to help out as many people as possible, not only Italians. I decided to leave Italy to broaden my horizons.

In 2007, I moved to California to get my master’s degree in American Law and International Legal Practice at Loyola Law School. After obtaining my LL.M., I worked as a visiting lawyer in New York City. In 2010, after a brief stint back in Florence, I joined a Chinese law firm in Shanghai for four months to learn more about intellectual property law. In China, I learnt a completely different approach to the art of contract negotiations—it was intriguing to discover that in China, “The Art of War” by Tzu Sun, is actually studied in law school! I even had the fortune to participate in undercover raid actions commissioned by foreign clients to target counterfeited goods and trademark infringements during international trade fairs.

In over twelve years of legal activity, I have had the privilege to collaborate with some of the most qualified lawyers around the globe and serve multitudes of interesting international clients. Thanks to them, I learned that, in order to offer good legal services, just speaking English is not enough: you have to be aware of the social and cultural background of the person who is in front of you. You need to get out of your local legal mindset and be able to respond to the (high) expectations of clients who come from very different cultures. I continue to learn how to make the most out of these differences, how to use them as an asset, and how to stay open-minded, which is the first rule to follow when you are sitting at a negotiation table with people from backgrounds that are very different from your own.

Ultimately, I returned to work in Florence because I was certain that globalization would bring a growing demand in international legal experts here and, of course, because this beautiful city offers the very best quality of life.

Most of the topics described in this book find inspiration in actual cases that I have managed during my legal practice. Often I provide advice to people looking to use Florence and Italy as a base for their life and business.

Sadly, I receive requests about what to do in case of sexual abuse, divorce and separation between international couples, and how to manage the issue 6

of child custody. Happily, I also get requests from people who have questions on how to get married in Italy or from foreign investors who want to buy real estate property and transform it into a luxury B&B or, more simply, into their dream house.

Furthermore, immigration issues and starting a successful business in Italy are other areas of practice of interest to international visitors. Immigration is not only of concern to students who wish to come here, but also to people who want to live and work here. As part of this relocation process, I am often asked how to start a business in Italy.

It has been particularly pleasing to write about these issues in The Florentine, Florence’s English news magazine, especially when it helps people navigate through the mazes and pitfalls of the Italian legal system.

Obviously this book is not a substitute for professional legal advice: professional support should always be sought out for any of these matters, especially if you are not fluent in Italian and you have little experience with the Italian legal system. Nevertheless this book is intended as a guide and offers preliminary insight into some of the most frequent legal issues that every person has to face at some point in his or her life. Likewise it can help reduce the risk of underestimating a problem that, with legal support, can be resolved or even prevented at a much cheaper price.

It is my hope that you will find the advice in these pages useful and informative, as well as encouraging and stimulating for your life as an expatriate in Italy.

—Michele Capecchi, attorney, LL.M

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VISAS International friends and clients often ask my advice on moving their professional or private lives to Italy. Many have acquaintances whose uncle “got all the documents he needed in one month”.

“Good for him” is how I usually reply. The fact is, the amount of legal information that a person should know in order to move to Italy is overwhelming, and the process is riddled with pitfalls that could quickly turn the dream of a new life into a nightmare.

This chapter is not intended to be a comprehensive description of the Italian legal system, but it does provide prospective expats with an overview, a how-to for those considering a move to Italy to set up a business, get married, buy a house or convert one type of visa into another.

The most common reasons for coming to Italy are tourism, study, work, to join or follow family, and business. Let’s start with the first three and getting into Italy.

TOURIST VISA Do you really need a visa to enter Italy as a tourist? Not always.

A) Visa-free access to the Schengen states for 90 days If you are from a country such as the United States, Canada, Mexico, Brazil, Argentina, Australia, New Zealand, Japan and other countries covered by the Schengen visa waiver scheme (see the immigration section at www.interno.it) and are planning to travel within the European Schengen area for a maximum of three months in any six-month period, you will not need a tourist visa.

Before spending a long time at the Italian Consulate applying for a visa, check online to see if your home country participates in the visa waiver program of the Schengen states. If you are from a country that does not participate in the Schengen visa waiver scheme, you will need a tourist visa (type C) regardless of the length of your trip in Italy.

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After 90 days in the Schengen YOU CANNOT WORK states, you are required to leave the IN ITALY WITH A area for at least 90 days before re- TOURIST VISA. turning to Italy without a visa. The days are calculated by the date stamped on your passport upon entry in the Schengen states. This serves as your tourist visa during your stay. The number of days does not include the days that you spend outside of the Schengen area.

Three important practical notes: 1) You might hear that, if, at the end of your 90 days you go to the UK or any other country outside the Schengen area for a few days, you can “recharge” your 90-day credit and come straight back to Italy for another 90 days.

This is not true: once your 90 days in the Schengen states are up, you must spend at least 90 days outside of the 25-state area. 2) The time you spend in a country that is not part of the Schengen area is not counted as part of your 90 days. To ensure that those days you spend outside are not calculated as part of your 90 days, I suggest that you ask the custom authorities to stamp your passport every time you leave the Schengen area in order to record the date and time you spent away. 3) You cannot work in Italy with a tourist visa; nor is it possible, with very few exceptions, to convert a tourist visa into a work visa without reapplication.

B) Long-stay and “national” visas If you plan is to visit Italy for more than 90 continuous days (for a maximum of 365 days), you will need a proper visa (type D), which is valid only for the country that has issued the visa and includes airport transit in another Schengen state.

STUDENT VISA Cooking, fine arts, art history, fashion design, Italian: the range and number of courses offered in Italy is impressive. If you plan to study here as part of a school program, it is likely that your school will give you instructions, or even take care of the requirements and papers you need. Your visa will indicate how long you are allowed to stay in Italy and travel in the Schengen area.

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On the other hand, if you plan to study in Italy independently, you need to keep in mind a few important things. First of all, ask the Italian Consulate in your home country if there is a minimum requirement of hours that you need to take per month in order to have a student visa. In many cases, the student visa is granted only if you commit to 20 hours of courses per week (or 80 hours a month). This is an important question to ask the school, as sometimes there are special offers for non-intensive classes (about 10 hours A VISA IS THE DOCUMENT a week), which might be THAT AUTHORIZES THE not enough to comply FOREIGN PERSON TO with the Italian ConsulENTER ITALY. ate requirements for the student visa.

Effective September 2010, if you are studying in Italy for less than three months and you come from a country that participates in the Schengen visa waiver program, you do not need a student visa. However, if you are also planning to work while studying abroad, with a student visa you may work part-time (up to 20 hours a week).

Many people want to know if a student visa can be converted into a work visa. Although complicated, this procedure is possible (Art. 14 comma 5 D.P.R. n. 394/99).

I am an American citizen and I am in Italy with a student permit to stay. Once my permit to stay has expired, can I extend my stay in Italy “as a tourist”?

This is a frequently asked question that the law does not expressly regulate. So, my personal legal interpretation is that the visa holder has to leave the country at the end of the study-abroad program.

Nevertheless, there is an interpretation provided by the Italian Consulate of San Francisco: “As of 15 February 2016” (…)

U.S. citizens, or citizens of nations that are party to the Schengen 10

Accord can stay in Italy or other Schengen Zone countries for a period of up to 90 days every six months without a visa. These days are “suspended” during the validity of a visa, so a U.S. student can enter 45 days before and leave 45 days after the validity of his or her visa, or enter 89 days before and leave 1 day after, or any other combination that suits him or her. Students from countries that have not signed similar accords must enter and leave only within the dates on their visas, and must adjust their schedules accordingly.”

Based on this interpretation of the law, once the permit to stay for study purposes of an American citizen has expired, that person can stay in Italy up to 90 days afterwards, according to the calculations previously provided.

I still have many doubts about this interpretation and, as of today, I am not aware whether such interpretation is shared and agreed by the customs authorities of other EU countries. Ultimately, in order to understand whether you can extend your stay after your student permit to stay expires, it is advisable to submit your case and your trip itinerary to the Italian Consulate of your home country before leaving your country for your studyabroad program.

WORK VISA A work visa is hard to obtain. Over recent years, Italy, like the rest of Europe, has been facing immigration from non-European Union countries. The government has been obliged to implement new laws to better control the situation. Therefore, only those people who have a concrete possibility to work in Italy can apply for such a visa. Having someone willing to hire you is not enough.

Each year the Italian government sets a maximum threshold for the number of work visas granted to non-EU citizens. Once the available visas have been assigned, you will have to wait until next year even if someone is willing to hire you. The visas are assigned mostly to domestic workers, caregivers and “special na11

tionalities”, which have their own quotas through a provision set by the Italian Ministry of Labor and Social Policies. But many work visas are also granted to foreign applicants who are willing to start (or bring to Italy) their own business, according to a self-employment visa application.

The process to obtain a work visa can take more than four months. If you are planning to come to work in Italy, or if you currently have a student visa that you hope to convert into a work permit to stay, read the following steps carefully because only the quickest and luckiest will have a chance of obtaining a working visa.

Step 1: “click day” and nulla osta The employer (or professional in charge of this procedure) will have to wait for the publication of the Decreto Flusso (Flow Decree), usually at the end of January or beginning of February. From that day on (aka “click day”), you can submit the online request for hiring the non-EU citizen in question. The list of documents that need to be submitted with the application is long and includes information regarding the hiring company, the proposed contract and any accommodation provided to the employee. Filing the application correctly is crucial; any request done incorrectly is likely to be rejected , even if in specific cases the person is allowed to amend the application providing the missing information to the immigration Authorities. The applications are reviewed in chronological order, on a firstcome-first-served basis in the computers of the immigration desk. Many have compared this system to a lottery, since the odds of getting a spot are close to those of winning a jackpot.

A large portion of the quotas will be met during the first few days, and it takes about a month to find out whether an application is one of the 100,000 accepted. In that case, if all the documents required by law are in order, there is a good chance that the immigration desk will grant the nulla osta (a declaration of “no impediment” to hiring the foreign worker). At this point it will be a question of time and red tape.

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Step 2: the visa After the nulla osta is granted, the immigration desk emails it with all relevant documents to the Italian Consulate of the home country of the employee-to-be. He or she then has six months from the granting of the nulla osta to present the request for the work visa at that consulate. The visa is normally granted within 30 days.

Step 3: the contratto di soggiorno and the permit to stay With the visa stamped on his or her passport, the worker will be allowed to enter Italy. At this point he or she is required to go with the employer, within eight days, to the sportello unico immigrazione to sign the contratto di soggiorno (residence contract), obtain a fiscal code and get the form (Mod 209) to request the permesso di soggiorno (permit to stay). The form for the permit of stay needs to be mailed by recorded delivery via the post office to the questura (police station) of the comune (municipality) where the employee will live and work. The post office gives the applicant a receipt with two codes—user ID and pass- A PERMIT TO STAY IS word—to use online at www. THE DOCUMENT THAT portaleimmigrazione.it to check A FOREIGN PERSON IS on the status of the request. UnOBLIGED TO REQUEST til the applicant physically obWITHIN 8 DAYS OF HIS/ tains the permesso di soggiorno, HER ARRIVAL IN ITALY. which can take more than 10 months, the receipt from the post office is sufficient proof that the applicant is legally in Italy (therefore, carry it at all times in case of police checks) and will be hired.

VISA AND PERMIT TO STAY: A FEW POINTERS People often talk about visas and permits to stay as if they were the same thing. They are actually very different documents, even though they are part of the same application.

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