ITALIAN NATIONAL REPORTS - Università Degli Studi Di Palermo

___________________________ 

ITALIAN 

ASSOCIATION 

OF 

COMPARATIVE 

LAW 

__________________________ 

ITALIAN NATIONAL 

REPORTS 

to the XVIIIth International Congress of the 

International Academy of Comparative Law 

Washington 2010 

THE CARDOZO ELECTRONIC LAW BULLETIN, VOL. 

16(1) - SPECIAL ISSUE 

Edited by P.G. MONATERI

ITALIAN NATIONAL REPORTS TO 18TH WORLD CONGRESS OF COMPARATIVE LAW 

Washington, 2010 

THE ITALIAN NATIONAL REPORTS TO 18TH 

WORLD CONGRESS 

OF COMPARATIVE LAW 

2010 

P.G. MONATERI (ED.) 

ITALIAN ASSOCIATION OF COMPARATIVE LAW 

THE CARDOZO ELECTRONIC LAW BULLETIN 

VOL. 16(1), 2010 

SPECIAL ISSUE

ITALIAN NATIONAL REPORTS TO 18TH WORLD CONGRESS OF COMPARATIVE LAW 

Washington, 2010 

© 1995-2010 The Cardozo Institute 

2010 edition : Vol. 16 (2010) - 1, The Fall Issue 

Italian National Reports to Washington 2010 

ISSN 1128-322X

TABLE OF CONTENTS 

I B RELIGION AND THE SECULAR STATE Alessandro Ferrari, Silvio 

Ferrari 

II A CATASTROPHIC DAMAGES – LIABILITY AND 

INSURANCE 

Elena Poddighe 

MATERNITY FOR ANOTHER Antonello Miranda 

II B CONSUMER PROTECTION IN INTERNATIONAL 

RELATIONS 

RECENT PRIVATE INTERNATIONAL LAW 

CODIFICATIONS 

Bruno Meoli 

Andrea Bonomi 

II C CLASS ACTIONS Diego Corapi 

Andrea Zoppini 

II D CLIMATE CHANGE AND THE LAW Giampiero Di Plinio 

III A THE REGULATION OF PRIVATE EQUITY, HEDGE 

FUNDS AND STATE FUNDS 

INSURANCE CONTRACT LAW BETWEEN BUSINESS 

LAW AND CONSUMER PROTECTION 

Raffaele Lener 

Onofrio Troiano, Diana 

Cerini, Giovanni Comandè, 

Maria Gagliardi 

III B THE BALANCE OF COPYRIGHT Salvatore Sica, Virgilio 

D’Antonio 

JURISDICTION AND APPLICABLE LAW IN 

MATTERS OF INTELLECTUAL PROPERTY 

III C THE PROHIBITION OF AGE DISCRIMINATION IN 

LABOUR RELATIONS 

Nerina Boschiero, Benedetta 

Ubertazzi 

Silvana Sciarra, William 

Chiaromonte 

IV A THE PROTECTION OF FOREIGN INVESTMENT Roberto Pardolesi, 

Massimiliano Granieri 

IV B CONSTITUTIONAL COURTS AS “POSITIVE 

LEGISLATORS” 

IV C PLURALITY OF POLITICAL OPINIONS AND THE 

CONCENTRATION OF MEDIA 

Giampaolo Parodi 

Vincenzo Zeno Zencovich 

ARE HUMAN RIGHTS UNIVERSAL AND BINDING? Alessandro Pace 

IV D PUBLIC PRIVATE PARTNERSHIPS Giuseppe Franco Ferrari 

IV E REGULATION OF CORPORATE TAX EVASION Carlo Garbarino 

V A CORPORATE CRIMINAL LIABILITY Cristina De Maglie

RELIGION AND THE SECULAR STATE: THE ITALIAN CASE 

I. Social Facts 

ALESSANDRO FERRARI * 

SILVIO FERRARI ** 

Italy is a predominantly Catholic country, though it is not easy to give an 

even approximate estimate of the number of Italians practising the Catholic 

religion because the national census does not include questions on religious 

affiliation. These questions are considered incompatible with the secular 

character of the State following a traditional liberal and individualistic 

approach, according to which investigating the intimate convictions of 

citizens, classified among the sensible data and protected by the legislation on 

matter of privacy 1 , is considered to be inappropriate. Moreover, the “liquid” 

nature of many religious affiliations is not always reflected in a rigidly 

conceived census and not all declarations reported by it can be interpreted as a 

manifestation of faith or strict affiliation to religion. 

Nevertheless, in some circumstances people are requested to publicly declare 

their religious affiliations (e. g. to receive religious assistance in hospitals, 

prisons, the army and the police; to attend religious classes at school; to offset 

donations against tax). Moreover, the census is an occasion to register and 

recognize the contemporary pluralization of the national religious landscape 2 . 

Apart from the reliability of the statistical data, the available figures are often 

contradictory. About 90% of the pupils at State schools take part in Catholic 

religious education classes, whereas less than 40% of taxpayers give the 

* Alessandro Ferrari is Professor of Canon and Ecclesiastical Law at the University of Insubria 

** Silvio Ferrari is Professor of Canon and Ecclesiastical Law at the University of Milan 

1 Cf. the section “Tutela dati personali” in http://www.olir.it/areetematiche/80/index.php (accessed 

the 26th of January 2010) 

2 In 2001 the introduction of a voluntary question on religious affiliation in the UK census was 

welcomed by Muslim organisations because it officially confirmed that Islam had become the second 

religion of the country: cf. T. Abbas, United Kingdom and Northern Ireland, in Yearbook of Muslims in 

Europe, I, Edited by Jørgen S. Nielsen, Samim Akgönül, Ahmet Alibašić, Brigitte Maréchal, Christian 

Moe, Brill, Leiden 2009, pp. 363-364.

ITALIAN NATIONAL REPORTS – WASHINGTON 2010 

THE CARDOZO ELECTRONIC LAW BULLETIN, VOL. 16(1) - SPECIAL ISSUE 

Catholic Church the part of income tax (imposta sulle persone fisiche, 

IRPEF) allotted to religious denominations or State social welfare institutions; 

about 60% of all religious marriages take place according to Catholic rites 

but, in spite of the high percentage of citizens who have received Catholic 

baptism, less than 25 % regularly take part in Sunday mass. In addition, the 

Papacy resides in Italy, which gives the Catholic Church great influence over 

political and social events in the country regardless of the statistical figures on 

the religious beliefs of Italians. 

Amongst the members of other denominations - about 4 % of the population 

- Muslims, with about one million of followers, form the more important 

group because of the massive stream of immigrants from North African 

countries. They are followed by the Orthodox Christians and the Jehovah's 

Witnesses, these latter for long time the second religious presence in Italy. 

The presence of Jews and Valdensians, though they have a long tradition in 

the country, is numerically less significant (less than 50.000 people each); 

the spread of the “new religious movements” (an inappropriate expression 

which has however become common) seems to be less significant than in 

other Western European countries 3 . 

II. Theoretical and scholarly context 

The Italian theoretical and scholarly context reflects the history of a country 

with a strong dominant religion and weak State institutions 4 . The dinamycs of 

3 Due to the lack of “official” sources it is worth to consult 

http://it.wikipedia.org/wiki/Religioni_in_Italia (accessed the 26th of January 2010); see also US 

Department of State, International Religious Freedom Report 2009 (Italy), available at 

http://www.state.gov/g/drl/rls/irf/2009/127317.htm; Eurispes, Rapporto Italia 2009, in 

http://www.eurispes.it/index.php/Rapporto-Italia/rapporto-italia-2009.html, pp. 1104- 1113, 

accessed the 26th January 2010, and Id, Rapporto Italia 2010 (anticipation), in 

http://www.eurispes.it/index.php/Comunicati-stampa/rapporto-italia-2010.html, accessed the 31 st 

January 2010. 

4 Cf. A. C. Jemolo, Church and State in Italy, Dufour Editions, Philadelphia 1961 or Id., Church and State 

in Italy. 1850-1950, Blackwell, Oxford 1960. More in general see C. Duggan, The Force of Destiny. A 

History of Italy since 1796, Allen Lane – Penguin Books Ltd, London 2007. Cf. also A. Ferrari, Civil 

Religion in Italy : « A Mission Impossible » ?, Errore. Solo documento principale.in « The George 

Washington International Law Review», in press.

Alessandro Ferrari, Silvio Ferrari 

Religion and the Secular State: The Italian Case 

Italian unification have given Italy a Nation-State more than a State-Nation 

character. This means that social cohesion has been entrusted more to a 

certain, natural, cultural-religious and partly mythical homogeneity than to a 

“patriotism” founded on the conscious participation of Italians in a common 

bond of citizenship based on the national public institutions and civil 

symbols 5 . This also explains the relatively scarce anticlericalism among Italian 

scholars and, especially in recent times, the consensus for a “contractual 

separation” between State and religions 6 . This “contractual separation” 

emphasizes the possibility to openly combine separation and bilateral 

agreements between the State and religious denominations. In fact, many 

Italian scholars do not support a rigid separation, want to guarantee equal 

religious freedom to all and accept a “positive” intervention of public 

authorities for answering religious needs. From this perspective agreements 

are seen as a way to create an articulated legal framework able to deal with 

religious differences through a “custom-made” treatment 7 . This approach is 

also highlighted by the peculiar features of Italian laicità, classified by the 

Constitutional Court among the “supreme principles of constitutional 

order” 8 . For the Court, laicità implies « not State’s indifference towards 

religions, but State’s guarantee for safeguard of religious freedom in a regime 

5 Cf. P. Segatti, Perché è debole la coscienza nazionale degli italiani, in « il Mulino », XLVIII, 381, 1 1999, pp. 

15-23. 

6 The term “contractual separation” reflects the French experience and it has been used in the Italian 

context by F. Margiotta Broglio, Vers une séparation contractuelle: le nouveau regime des cultes en Italie, in « 

Revue d’étique et de théologie morale Le Supplément », 175, 1990, pp. 79-93. Cf. also S. Ferrari, 

Separation of Church and State in Contemporary European Society, in Journal of Church and State, Autumn 1988, 

pp. 533-47. The seventies represented a sort of parenthesis in the Italian recent history and were 

characterized by an important process of secularisation. In those years Law 898/1970 and Law 

194/1978 were enacted (respectively about the institution of divorce and the voluntary termination of 

pregnancy) and many scholars supported the abrogation of the Lateran Pacts and the end of the 

concordatarian system: cf. Individuo, gruppi, confessioni religiose nello Stato democratico, Atti del Convegno 

nazionale di Diritto ecclesiastico, Siena 30 novembre-2 dicembre 1972, Giuffrè, Milano 1973 and Nuove 

Prospettive per la legislazione ecclesiastica, Atti del II Convegno nazionale di Diritto ecclesiastico, Siena 27-29 

novembre 1980, Giuffrè, Milano 1980. 

7 Cf. S. Berlingò, G. Casuscelli, S. Domianello, Le fonti e i principi del diritto ecclesiastico, Utet, Torino 2000. 

8 Cf. the decision n. 203 of the 11 th of April 1989: in http://www.olir.it/documenti/?documento=370 

(accessed the 26th of January 2010). Neither the Constitution nor the laws define the principle of 

laicità. The Constitutional Court derived it from the interpretation of the constitutional articles related 

to religious freedom (articles 2, 3, 7, 8, 19 and 20).



of confessional and cultural pluralism » 9 . Consequently, the principle of laicità 

is not an instrument to fight the religious presence in the public square and to 

foster the secularisation of the Italian State and civil society 10 . For this reason, 

Italian laicità can be assimilated neither to laicism (if this word is intended as 

synonymous with anti-religious) nor to secularism (if this word is intended as 

synonymous with the invisibility of religions in public square). Laicità 

supposes the existence of a plurality of value systems, the same dignity of all 

personal choices in the field of religion and conscience, it entails an identical 

protection for religious and non religious convictions, and it requires State 

neutrality about them. As a result, this principle does not refer to State- 

Church relations only but it is a synthesis of the values and duties of the 

contemporary plural and democratic State in which religion plays a full role, 

like each other component of civil society. 

For these reasons, Italian laicità could be interpreted as a “habermasian” and 

“rawlsian” laicità at the same time, a positive and active laicità, closely 

connected with the contemporary obligation of the Welfare State to pursue 

not just a “formal” but a “substantial” equality 11 . 

If the official doctrine of the Constitutional Court seems quite clear and 

coherent, the situation is more complex when we pass from the supreme 

9 Ibid. 

10 The Constitutional Court affirmed five specific State obligations: 1) the obligation to safeguard 

religious freedom in a regime of confessional and cultural pluralism (203/1989, cit.); 2) the obligation 

to respect confessional autonomy, with the prohibition to interfere with the internal life of treligious 

denominations (259/1990, in in http://www.olir.it/documenti/?documento=377, accessed the 26 th 

January 2010); 3) the obligation to be equidistant and impartial towards all religious confessions, which 

entails the illegitimacy of systems based on a National Church or a State Church or, more generally, of 

forms of public “confessionismo” (203/1989, cit.); 4) the obligation to protect the conscience of 

everyone, irrespective of credo or conviction (440/1995, in 

http://www.olir.it/documenti/?documento=467, accessed the 26 th January 2010), which entails the 

prosecution of offences against religious feelings, irrespective of the denomination to which an 

individual belongs; 5) the obligation to distinguish between civil matters and religious matters and the 

illegitimacy of the political use of religion and the religious use of politics (334/1996, in 

http://www.olir.it/documenti/?documento=368 accessed the 26 th January 2010. Cf. G. Casuscelli, La 

laicità e le democrazie: la laicità della “Repubblica democratica” secondo la Costituzione italiana, in « Quaderni di 

diritto e politica ecclesiastica », 1, 2007, pp. 169-202, S. Domianello, Sulla laicità nella Costituzione, 

Giuffrè, Milano 1999 and S. Ferrari, Le principe de neutralité en Italie, in « Archives des Sciences Sociales 

des Religions », 101, 1998, pp. 53-60. 

11 This also includes the principle of ragionevolezza, which imposes to grant each person and group his 

or her due.



principles to the jurisprudence of lower courts and, above all, to the legislative 

and political domain. At this level the mono-confessional Italian tradition 

significantly limits the pluralism connected with laicità as a juridical principle. 

A system based on the idea of a clear superiority of the Catholic Church tends 

inevitably to privilege religious over non-religious convictions (favor religionis) 12 

and cannot easily combine a religious-friendly laicità with pluralism and equal 

freedom of all denominations. Given the Italian historical and social context, 

some authors think that an “Italia laica” is simply impossible 13 . Consequently, 

the Italian laicità is a limited one or, as some have said, a “baptised laicità” 14 . 

Following this interpretation the privileged position of the Catholic Church 

appears perfectly compatible with the Constitution once Catholicism is 

considered not only a specific religion but, rather, a cultural expression of the 

core national heritage 15 . This approach, which perfectly shows the Nation- 

State character of Italy, implies also that religious and cultural needs are 

prevalently interpreted not from the secular constitutional point of view, but 

rather from the point of view of the national (religious and cultural) Catholic 

tradition 16 . 

12 Cf. G. Dalla Torre, Il fattore religioso nella Costituzione. Analisi e interpretazioni, Giappichelli, Torino 

1995, pp. 28-29. A good example is provided by the “atheistic-bus”, an initiative promoted by the 

Atheists and Rationalists Union and aimed at placing on the municipal buses in Genoa atheistic 

advertisings which proclaimed: « The good news is that in Italy there are millions of atheists. The best 

news is that they believe in freedom of expression ». This sentence substituted another which was 

perceived as offensive: « The bad news is that God does not exist. The good news is that you do not 

need it ». These advertisings were contested not so much in relation to an obligation of neutrality of 

the municipality and its services, but because they were considered an offense to the Catholic feelings 

of the population. Cf. La Repubblica, 12 th of January 2009 and 

http://www.guardian.co.uk/world/2009/jan/06/atheist-bus-campaign-nationwide (accessed the 26th 

of January 2010). 

13 Cf. O. Giacchi, Posizione della Chiesa cattolica e sistema concordatario, in Individuo, gruppi, confessioni religiose 

nello Stato democratico, cit., p. 791. 

14 For the opposition between juridical and "narrative" laicità cf. A. Ferrari, De la politique à la technique: 

laïcité narrative et laïcité du droit. Pour une comparaison France/Italie, in Le droit ecclésiastique en Europe et à ses 

marges (XVIII-XX siècles), sous la direction de B. Basdevant Gaudemet et F. Jankowiak, Peeters, 

Leuven 2009, pp. 333-345. 

15 See, below, the section devoted to religious symbols. 

16 For example, n. 25 of the Charter of values, of citizenship and integration declares that « Italy respects the 

symbols and the signs of all religions” not because of its constitutional principles but “on the basis of 

its religious and cultural tradition », cf. 

http://www.interno.it/mininterno/export/sites/default/it/assets/files/14/0919_charter_of_values_ 

of_citizenship_and_integration.pdf, accessed the 26th of January 2010.



Finally, the problematic implementation of laicità is also visible in the lack of a 

general law on religious freedom able to offer a legal framework for all faiths 

indipendently from specific agreements 17 . This lack - and the consequent 

excessive amount of discretion of public powers in signing the agreements 

with religious denominations - are presently considered by most relevant 

weakness of the Church-State system in Italy. 

III. Constitutional context 

Political history 

From the beginning Italian institutions were strictly entangled with 

Catholicism. Art. 1 of the Statuto Albertino, the constitution that King 

Charles Albert I conceded to the Kingdom of Piedmont-Sardinia on 4 March 

1848, defined this religion as the only State religion 18 . Later on, when yhe 

peninsula was unified under the lead of the Piedmont monarchy, the Statuto 

became the constitution of the unified Kingdom of Italy and remained in 

force until 1948. Nevertheless, the confessional character of this constitution 

does not entail that a difference of faith constitutes an exception to the 

enjoyment of civil rights 19 . The Statute, therefore, did not prevent the 

progressive reduction in influence of the Catholic Church over State 

institutions. The unification of Italy (1860-70) caused a serious crisis in the 

relations between the Catholic Church and the new State. The liberal 

governments started a process of secularisation of the institutions and the 

public life (introduction of compulsory civil marriage, 1865; restriction of 

Catholic religious education in State schools, 1877; reform of the criminal 

17 Cf. Proposta di riflessione per l'emanazione di una legge generale sulle libertà religiose, ed. by V. Tozzi and G. 

Macrì, Jovene, Napoli 2010, in press. 

18 For the history of the Church-State legislation of the “liberal Italy” see F. Ruffini, Corso di diritto 

ecclesiastico. La libertà religiosa come diritto pubblico subiettivo, F. lli Bocca, Torino 1924 (re-edited as La libertà 

religiosa come diritto pubblico subiettivo, il Mulino, Bologna 1992); A.C. Jemolo, Church and State in Italy, cit.; 

La legislazione ecclesiastica. Atti del congresso celebrativo del centenario delle leggi amministrative di unificazione, ed. 

by P. A. D’Avack, Neri Pozza, Vicenza 1967 and Chiesa e religiosità in Italia dopo l’Unità (1861-1878), Atti 

del quarto Convegno di Storia della Chiesa. La Mendola 31 agosto-5 settembre 1971, Vita e Pensiero, 

Milano 1973. 

19 Law of the 19th of June 1848.



law provisions that protected religion, 1889; State control of the welfare and 

charitable institutions, 1890), which provoked the opposition of the Church 

hierarchy, further aggravated by measures aimed at weakening the economic 

power of the Church (especially by way of abolishing some Church entities 

and confiscating their property, 1866-67). The fact that the unification of Italy 

was attained by destroying the secular power of the Popes gave particular 

strength to the hostility of many Catholics towards the Kingdom of Italy, 

although the predominantly moderate policy of the Italian Government made 

progressively less tense the relations with the Church 20 . However, the 

outbreak of World War I prevented any concrete effects of this 

rapprochement. Following the war, the Fascist party, which took the power 

in 1922, started a policy of conciliation with the Catholic Church which 

culminated in the Lateran Treaties (1929) 21 . These solved the problem of 

Rome by creating the Vatican State and restored a part of the privileges - 

concerning marriage and economic matters and in the field of religious 

education in State schools – the Church had lost during the liberal period. 

Current constitutional provisions 

The Republican Constitution (1948), on one hand, confirms the Lateran 

Treaties signed by the State with the Catholic Church, naming explicitly 

them in the Art. 7; on the other, it creates the basis for a system of religious 

freedom more compatible with the new principles of freedom and equality. 

At the same time, the new Constitution gives a special emphasis to the 

“institutional” profiles of religious freedom. Articles 7 and 8, devoted to the 

relationships between the State and religious denominations (confessioni 

20 Cf. A. Ferrari, The Italian accomodations. Liberal State and Religious freedom in the “Long Century”, in L'État 

canadien et la diversité culturelle et religieuse 1800-1914, ed. by L. Derocher, C. Gélinas, S. Lebel-Grenier and 

P. C. Noël, Presses de l’Université du Québec, Québec 2009, pp. 143-153. 

21 Cf. F. Margiotta Broglio, Italia e Santa Sede dalla grande guerra alla conciliazione, Laterza, Bari-Roma 1966 

and R. Pertici, Chiesa e Stato in Italia. Dalla Grande Guerra al nuovo Concordato. Dibattiti storici in Parlamento, 

il Mulino, Bologna 2009.



religiose), are included among the « fundamental principles », strictly connected 

to the “material constitution” of the State and, consequently, commonly held 

as uncheangeable. On the contrary, articles 19 and 20, that deal with freedom 

of religion as an individual right (not necessarily connected with its 

institutional dimension), are placed in the part of the Constitution concerning 

the « civil relations ». 

The special relevance accorded to the institutional side is explained by the 

historical bonds between the Italian State and the Catholic Church and has 

important effects on the Italian system of religious freedom 22 . 

The “individual” side of religious freedom 

Article 19 23 recognizes religious freedom to “everyone”, irrespective of 

citizenship 24 , guaranteeing not only freedom of religion (e. g.: public 

propaganda 25 , building places of worship and religious cemeteries; ritual 

slaughtering) but also freedom from religion, with the only limit of rites 

contrary to « public morality », identified in the sexual decency protected by 

the criminal code 26 . Consequently, article 19 is considered to protect all 

positions in matters of conscience, including the atheistic and agnostic ones 

22 Cf. A. Ferrari, Laïcité et multiculturalisme à l'italienne, in « Archives des Sciences Sociales des Religions 

», 53, 141, janvier-mars 2008, pp. 133-154. 

23 Article 19: « Anyone is entitled to freely profess his religious belief in any form, individually or with 

others, and to promote it and celebrate rites in public or in private, provided they are not offensive to 

public morality». 

24 Therefore the enjoyment of religious freedom by foreign citizens is not subordinated to the 

principle of reciprocity. Obviously, from a political point of view, the support by the Italian Muslim 

communities of the enjoyment of equal rights by non Muslim believers in “Muslim countries” would 

help their integration in the Italian system. 

25 The Code of Criminal Law contains provisions that punish blasphemy against Deity (of whatever 

religion), offenses against members of religious denominations and religious objects, disturbances of 

religious ceremonies (arts. 724 and 403-405). Incitement to violence or discrimination for religious 

motives is punished by the law 654/1975 (as modified by the law 205/1993), that applied in Italy the 

U.N. International convention on the elimination of all forms of racial discrimination (1965). 

26 In any case, religious freedom must respect some fundamental values that Art. 9 of the European 

Convention of Human Rights identifies in public order, health or morals, the protection of the rights 

and freedoms of the others. The member of a religious community who violates these limits with 

his/her acts, writings or words, will be punished like any other individual and cannot invoke 

obedience to a precept of his/her religion as a cause for impunity. But these limitations of freedom 

only concern the manifestations of a religion and not the religious belief itself: no-one can be 

punished for the sole fact of belonging to a religious group.



and it is also invoked to ground laws (and claims) on matters of conscientious 

objection 27 . 

Article 20 is the “social side” of the previous article 28 . Remembering some 19 th 

Century laws that dissolved religious organizations and confiscated their 

properties, art. 20 protects all kind of religious associations from 

discriminatory interventions motivated by their religious character. 

The “institutional” side 

Italian law considers religious denominations as the most complete and 

structured form of religious associations 29 . These denominations are the 

27 The introduction of special rules allowing conscientious objection to military service (1972) and - 

limited to medical doctors - to participation in abortions (1978) has solved some important problems of 

religious freedom. Others however remain unsolved, given the fact that there is no general right of 

objection of conscience and a specific law is required to dispense from the observance of a legal rule. 

The main problems are caused by religious groups which have settled in Italy relatively recently. The 

refusal of medical treatments (the prevailing jurisprudence acknowledges the possibility of refusing any 

medical treatment which is not compulsory, insofar as such a refusal - for instance of blood transfusion 

- does not endanger the life of another person) and the refusal to work on religious holidays (this right 

is granted only to the adherents of denominations which have concluded an agreement with the 

Italian State) are the most frequent issues: cf. V. Turchi, I nuovi volti di Antigone. Le obiezioni di 

coscienza nell’esperienza giuridica contemporanea, Edizioni Scientifiche Internazionali, Napoli 2010. 

28 Article 20: « No special limitation or tax burden may be imposed on the establishment, legal 

capacity or activities of any organisation on the ground of its religious nature or its religious or 

confessionai aims ». 

29 The problem of defining what a “denomination” is has become significant in Italy with the spread of 

the “new religious movements”. As there is a complete absence of statutory definitions, some 

commentators are of the opinion that the State is neither able nor competent to provide 

such a definition and affirm that the State should rely on the self-assessment of the adherents 

of the groups which want to be recognised as denominations: in other words, if the group members 

are of the opinion that they form a denomination, the State authorities would be bound to accept 

this assessment. On the contrary, some decisions of the Constitutional Court (and in particular 

Decision Nr. 467 of November 1992, in http://www.olir.it/documenti/?documento=432, accessed 

the 27 th of January 2010) affirm that the term “denomination” must have an objective and not a 

subjective basis. Another group of scholars has tried to identify some characteristics which should 

qualify every group wanting to be classified as a denomination. Such characteristics are the belief in a 

transcendental reality (not necessarily in God), capable to answer fundamental questions on man’s 

origin and destiny, to provide a moral code, to create an existential interdependence between the 

faithful and this transcendental reality (manifested, amongst other things, by worship), and an 

organizational structure, however minimal. Besides the three religions of Abrahamitic derivation, many 

religions of Oriental origin would fit this paradigm, while parapsychological, spiritualist 

and occult groups etc. would be excluded. Some of the “new religious movements” such as 

the Scientology Church are borderline cases (as it is shown by the contradictory decisions of the 

courts on this matter). In any case art. 7 and 8 are traditionally applied to religious groups with some 

degree of internal cohesion and not to “liquid” religious associations, which can be protected by 

articles 19 and 20: cf. S. Ferrari, La nozione giuridica di confessione religiosa (come sopravvivere senza conoscerla), 

in Principio pattizio e realtà religiose minoritarie, ed by V. Parlato and G. B. Varnier, Torino, Giappichelli 

1995, pp. 19-47 and B. Randazzo, Diversi ed eguali. Le confessioni religiose davanti alla legge, Giuffrè, Milano 

2008, pp. 21 ff.



specific object of Articles 7 and 8 of the Constitution 30 . 

Article 7 is devoted to the relationships between the State and Catholic 

Church, which is assumed as the paradigm of “religious denomination”; art. 8, 

first paragraph excepted, is devoted to the relationships between the State and 

non-Catholic denominations. 

The first section of Art. 7 and the second section of Art. 8 guarantee, 

respectively, the mutual independence and sovereignty of both the State and 

Catholic Church and the free organisation (= autonomy) of non-Catholic 

denominations. 

The first section of Art. 7, taking explicitely into account the historical 

relevance of the Catholic legal system, affirms that the Church and the State 

are independent and sovereign and, consequently that this latter cannot 

interefere with internal Church laws and statutes which are in the total 

disposition of the ecclesiastical authorities 31 . The same guarantee is granted to 

non-Catholic denominations by the second section of Art. 8. This latter gives 

them the possibility to have internal rules (« statuto ») which will be respected 

by State authorities if in accord with the fundamental principles of the Italian 

legal system 32 . 

30 Article 7: « The State and the Catholic Church are independent and sovereign, each within its own 

sphere. Their relations are regulated by the Lateran pacts. Amendments to such Pacts which are 

accepted by both parties shall not require the procedure of constitutional amendments ». 

Article 8: « All religious denominations are equally free before the law. Denominations other than 

Catholicism have the right to self-organisation according to their own statutes, provided these do not 

conflict with Italian law. Their relations with the State are regulated by law, based on agreements with 

their respective representatives ». 

31 Cf., in particular, Constitutional Court, decision 334/1996, cit., and J. Pasquali Cerioli, L'indipendenza 

dello stato e delle confessioni religiose: contributo allo studio del principio di distinzione degli ordini nell'ordinamento 

italiano, Giuffrè, Milano 2006. 

32 Consequently, if denominations decide to have (or if they decide to create some associations with) a 

statute, the only constitutional limit is not referred to the religious principles but just to the internal 

laws regarding the organisation of the group that should not contradict the member’s basic 

constitutional rights. This does not mean that denominations should “marry” the democratic 

principle. But, if they want to keep their autonomy, they must not violate fundamental human rights, 

such as, for example, the right to act and to defend in a judgement promoted by religious authorities 

and the right to freely withdraw from the group. In any case, State control regards only the rules that 

discipline the group’s life: therefore, no judicial control is admitted in relation to “sacred texts” at the 

bases of the religious credos. Consequently, the principle of autonomy exempts civil judges from the 

duty to investigate and to select “the true interpretation” among the many that are always possible 

when a religious text is invocated. At the same time, autonomy does not forbid public authorities to 

prosecute a concrete violation of law. In other words a Jehovah’s Witness will be punished if he



The second section of Art. 7 and the third section of Art. 8 ratify the 

“bilaterality principle”, which is a direct consequence of the principle of 

religious autonomy. This principle means that the State may only deal with the 

legal organisation of a denomination by way of a Concordat (with the 

Catholic Church) or an agreement (« intesa ») (with non-Catholic 

denominations), i.e. under the condition of reaching an understanding with 

the denomination 33 . In other words, the “bilaterality principle” requires that the 

State regulates through agreements all the questions strictly connected with 

the specific needs of a specific denomination 34 . Both Concordats with 

Catholic Church and intese with non-Catholic denominations, once they have 

been signed by the President of the Council of Ministers and the 

representative of the religious organization, need to be ratified (the 

Concordat) or approved (the intese) by a law of the Parliament 35 . This law is 

defined an “atypical law” because, once approved, it can be amended only 

on the basis of a new agreement between the State and the denomination. 

No amendment based on a unilateral initiative of the State is possible 36 . In this 

refuses military service (if it is compulsory) but the Christian Congregation of Jehovah’s Witnesses 

cannot be dissolved because it advocates the refusal of military service; or a Muslim will be punished 

if he contracts a polygamous marriage but the same sanction will not be applied to the whole of the 

Muslim community due to the sole fact of considering such a marriage licit according to its religious 

precepts. 

Cf., in particular, Constitutional Court decisions 259/1990, cit.; 43/1988 in 

http://www.olir.it/documenti/?documento=2304 and 239/1984, in 

http://www.olir.it/documenti/?documento=376 all accessed the 26 th January 2010. A classic text in 

this matter is P. Floris, Autonomia confessionale. Principi-limite fondamentali e ordine pubblico, Napoli, Jovene 

1992. 

33 Atheistic organisations cannot sign agreements with the State, first of all because of their lack of a 

self-qualification as religious denominations. 

34 In other words, “bilateral legislation” should be exceptional and unilateral State laws on religious 

freedom the common rule. Nevertheless, not only many matters that could have been disciplined 

through a general law have been regulated through specific agreements but also the agreements, as a 

consequence, are practically identical to each other. 

35 Law 400/1988 attributes the general competence in the field of Church-State relations to the 

Council of Ministers, while the Legislative Decrees 300/1999 gives some specific competences to the 

Ministry of Interior (they range from the « guarantee of the order and public safety » to the « 

guarantee of the civil rights, including those of religious confessions, of citizenship, immigration and 

asylum »). 

36 Consequently these laws, although formally are ordinary laws, have a greater force than other 

ordinary laws. This is an important difference with other concordatarian systems (with the Spanish 

one, for example) in which the State can denounce and abrogate the agreements stipulated with the 

Holy See without resorting to the procedure required for modify a constitutional provision. 

Moreover, the Constitutional Court has clarified that a law which ratifies a Concordat with the



way the Catholic Church and the denominations which have reached an 

agreement with the State have the guarantee that their legal status cannot be 

altered in peius against their will. 

Under Arts. 7 and 8 one agreement between the State and the Catholic Church 

and six agreements with non Catholic denominations have been concluded and 

translated into State laws. With the Catholic Church the Agreement of Villa 

Madama (Accordo di Villa Madama) has been signed in 1984, which replaced 

the Lateran Concordat of 1929. This general Agreement was followed by 

specific agreements: the most important of them are concerned with the 

regulation of Church entities and property (1984), Catholic religious education 

in State schools (eight agreements from 1985 to 2004), Church holidays 

(1985), protection of cultural and religious heritage (three agreements from 

1996 to 2005), and pastoral care in the police force (1999) 37 . Regarding non- 

Catholic denominations, the Parliament has approved agreements with the 

Tavola Valdese (Valdensians) (1984), the Christian Churches of the Seventh- 

Day-Adventists (1986), the Assemblee di Dio (“Assemblies of God”, a 

Pentecostal Church) (1986), the Union of Jewish Communities (1987), the 

Christian Evangelical-Baptist Union (1993) and the Lutheran Church (1993) 38 . 

Catholic Church cannot be abrogated by referendum (decision 16/1978, in 

http://www.olir.it/documenti/?documento=5030); that only the contrast with one of the principles 

qualified as “supreme principles of the constitutional system of the state” by the Constitutional Court 

itself could justify a declaration of llegitimacy of a Concordat provision (decisions 30/1971, 

http://www.olir.it/documenti/?documento=5091; 175/1973, 

http://www.olir.it/documenti/?documento=5094 and 1/1977, 

http://www.olir.it/documenti/?documento=5095, accessed the 26 th January 2010). 

Cf. S. Ferrari, Il Concordato salvato dagli infedeli, in Studi per la sistemazione delle fonti in materia ecclesiastica, ed. 

by V. Tozzi, Edisud, Salerno 1993, pp. 127 ff. and the others contributions in the same volume. 

37 Unlike the Concordat, these agreements are subject to the ordinary control of the Constitutional 

Court, which has the power to declare the illegitimacy of their provisions whenever they clash with 

some articles of the Constitution and not only when they clash with one of the “supreme principles of 

the constitutional system of the State” (Const. Court decision 1/77, cit.): cf. 

http://www.governo.it/Presidenza/USRI/confessioni/accordo_intese.html accessed the 27th 

January 2010. 

38 Churches represented by the “Waldensian Table” (Law 11 August 1984, n. 449); Italian Union of 

the Adventist Churches of the Seventh Day (Law 22 November 1988, n. 516); Assemblies of God in 

Italy (Law 22 November 1988, n. 517); Union of the Jewish Italian Communities (Law 8 March 1989, 

n. 101); Christian Evangelical Baptist Union of Italy (Law 12 April 1995, n. 116); Evangelical Lutheran 

Church in Italy (Law 29 November 1995, n. 520), cf. 

http://www.governo.it/Presidenza/USRI/confessioni/intese_indice.html#2, accessed the 27 th 

January 2010.



Other agreements have been successively signed, but they have not yet been 

approved by the Parliament 39 . 

There are two main problems connected with the concrete implementation of 

the bilaterality principle: first, the neeed for representative institutions of 

religious denominations at national level 40 , a requirement that proved to be 

problematic for some religions, such, for example, Islam 41 . Second, the 

excessive amount of discretion which the public powers possess in deciding 

whether to accept or reject the proposal of a denomination to enter into 

negotiations for an agreement. Certainly it is convenient to keep a margin 

of flexibility in dealing with the different applications, especially 

concerning their contents; however, the complete lack of rules governing the 

decision-making process according to objective criteria (number of adherents, 

length of their presence in Italy or other countries, type of organisation, 

etc.) facilitates abuse 42 . 

Another debated issue is the differentiation among denominations introduced 

by this system of concordats and agreements. Differentiation is not excluded 

39 In April 2007 six agreements have been signed with: the Jehovah’s Witnesses; the Italian Buddhist 

Union; the Italian Hindu Union; the Apostolic Church in Italy; the Church of Jesus Christ of Latterday 

Saints and the Greek Orthodox Archdiocese of Italy and Exarchate of Southern Europe. The 

Jehovah’s Witnesses and the Italian Buddhist Union had already signed an agreement with the State in 

2000, but these agreements were never approved by the Parliament. 

40 In this sense the Italian case is – so far - different from the Spanish one, because in Spain the 

Acuerdos have been signed not with specific religious denominations but with federation of more 

denominations. In Italy something similar happened with the agreement between the State and 

Waldensians because the Waldensians Table, from 1979, also represents the Union of Methodist 

Church. 

41 All religions that have concluded an intesa have had to adapt tjeir organization to the dualistic model 

of Western Christianity, which involves stressing the distinction between religious or holy people and 

activities on the one hand and people and activities without such qualifications. The “confessional” 

model adopted by the Jewish communities to conclude the intesa is an interesting example, and it will 

also be very interesting to see what will be the choice of the Muslim community. In 2005 the Ministry 

of Interior created a consultative body, the Council for Italian Islam, whose members were selected by 

the Minister himself. This body has to face many problems and especially 1) the fact that the its task 

was far from homogeneous, concerning matters connected to immigration and integration that did 

not regard only Muslims; and 2) the fact that this (implicit) governamental selection of the Islamic 

representativeswas in conflict with the Constitution that forbids public authorities to select the leaders 

of religious organisations. In any case, since 2008 this Council stop to be convoked. 

42 According to the Constitutional court the small number of members of a denomination is not, in 

itself, a valid reason to refuse an agreement (cf., for example, Constitutional Court, decision 925/1988, 

in http://www.olir.it/documenti/?documento=446 accessed the 27 th January 2010). The conclusion 

of an agreement should only depend on the necessity to provide for specific needs of a 

denomination, independently from its dimension or political influence.



by Constitution. Art. 8 sect. 1 does not refer to equality but to “equal 

freedom”, legitimizing in the name of the principle of reasonableness, the 

possibility to give different legal answers to different needs. Of course 

these differences cannot jeopardize legal equality of individuals 43 : some 

examples of this delicate balance may be found in the sections of this chapter 

devoted to financing of the denominations and religious education in State 

schools. 

The correct relation of liberty (i.e. the possibility of a special regulation for 

each denomination) and equality (i.e. the necessity of a common set of 

rights and duties for all) is a central problem of Italian ecclesiastical law in 

its present stage of development and the principal test for Italian laicità. 

IV. The Legal context 

Difficult implementation of constitutional provisions 

The implementation of the constitutional provisions has revealed two main 

interconnected problems: a) the tendency to use the bilaterality principle not 

as an instrument for reaching “equal freedom” among individuals and 

denominations but as a political tool for a selective public recognition of these 

latter; b) the substantial similarity of all the agreements that have been signed. 

Agreements are used by the State to concede a set of rights to “recognized 

denominations”. In this way, many matters that could be included in a general 

law on religious freedom (because they express needs common to all 

denominations) become matter of specific agreements signed by public 

powers with great discretion. Consequently, these “photocopy” agreements 

are seen by the religious groups more as an instrument of political legitimation 

than as an opportunity for expressing their identity. 

This state of affairs is full of negative repercussions. On the one hand, the 

43 Cf. S. Ferrari, Libertà religiosa individuale ed uguaglianza delle comunità religiose nella giurisprudenza della Corte 

costituzionale, in « Giurisprudenza Costituzionale », 1997, pp. 3085 ff.



benefits deriving from agreements have given rise to a rush to get them. On 

the other hand, the absence of any procedural limit to the discretionary 

powers of the government 44 can easily result in discrimination against 

denominations excluded from the agreements. Denominations whitout 

agreement with the State are ruled by the old law on “admitted cults” of 

1929 45 : they are not only excluded from the more favourable provisions 

contained in the agreements but also barred from benefits reserved to the 

“agreed religions by the State and the regional legislator. The Constitutional 

Court has (in vain) affirmed that this last situation to be illegitimate 46 . On the 

other hand itrejected the request to condemn the failure to extend 

promotional interventions which, though agreed in the intese, do not answer a 

specific need of the contracting denomination 47 . In this way a “general law of 

the intese” has been created, which can be enjoyed only on the basis of 

substantially uncontrolled government powers of discretion. If the treatment 

of religious confessions by public authorities is unreasonable, it may lead to 

genuine inequality and to a different measure of freedom not only among 

them but also among their believers, in contrast with the limit fixed by the 

first section of Art. 8 Constitution 48 . 

44 The government is free to refuse or slow down negotiations for an agreement and to obstruct 

parliamentary approval when it gets cold feet and wants to retrace its steps. 

45 Law 24 th of June 1929 n. 1159 and Royal Decree 28 th February 1930 n. 289. 

46 Cf. Constitutional Court 195/1993 and 346/2002, in 

http://www.olir.it/documenti/?documento=378 and 

http://www.olir.it/documenti/?documento=891 accessed on 27 January 2010 (two regional laws had 

reserved the public funding for the building of places of worship only to the religions with agreement 

although a general law of the State extended it to all denominations). Despite this decision, the 

regional lawmakers continued to provide privileged treatment for the religions with an agreement (for 

example, in the legislation on non-profit-making organizations (Legislative Decree 4 December 1997, 

n. 460), in that on privacy (Legislative Decree 11 May 1999, n. 135) and in the general policy law for 

the realisation of the integrated system of interventions and social services (Law 8 November 2000, n. 

328). 

47 Cf. Constitutional Court, decision 178/1996 and 235/1997, in 

http://www.olir.it/documenti/?documento=433 and 

http://www.olir.it/documenti/?documento=435 accessed the 27 th January 2010. 

48 In this case, not only the first paragraph of Art. 8 and Article 19 is violated, but also the first 

paragraph of Article 3 of the Constitution: « All citizens have equal social dignity and are equal before 

the law, without distinction of sex, race, language, religion, political opinion, personal and social 

conditions ».

A four- tier system 



The different social status of religions is reflected in their legal status. Any 

group with religious aims may be founded without the necessity of any 

authorisation or prior registration and may operate within the Italian legal 

system. The only limits are set by considerations of public order and 

common decency. 

Nevertheless, the denominations (or, more precisely, their legal entities) may 

choose between various types of legal capacity. 

First of all, they may constitute themselves as non-recognised associations 

(associazione non riconosciuta, Art. 36-38 of the Civil Code): it is the simplest 

model which is also used by political parties and trade unions. In this way, the 

denomination attains legal capacity (including independence in property 

matters and the ability to receive donations, take legal actions, etc.) in 

complete liberty, without their constitutive act or statute being submitted to 

any form of State control. More precise and binding rules apply to 

recognised associations (associazioni riconosciute) according to Arts. 14-35 of 

the Civil Code and to Dpr. 10 February 2000, n. 361. They obtain legal 

personality through registration at the Prefecture, provided they fulfil a 

socially useful purpose and have sufficient economic means. 

Civil law legal capacity may also be obtained according to Art. 16 of the 

Disposizioni sulla legge in generale (Provisions on law in general), which grants 

foreign legal entities the rights of Italian legal entities on terms of reciprocity, 

and furthermore according to Art. 2 of the Treaty of Friendship, Commerce 

and Shipping with the United States, concluded in 1948. About forthy 

denominations (or denominational legal entities) have obtained legal capacity 

in this way. Following some changes in the law interpretation which resulted in 

the loss of the tax advantages established in the Treaty, they enjoy now a legal 

status similar to that of recognised associations. 

Up to now only the possibilities of obtaining legal capacity in the same forms



provided by general law for all groups, independently of their religious or 

other aims, have been discussed. For the religious groups however there is a 

further possibility of which the most important minority denominations have 

made use: that is, obtaining legal capacity on the basis of a law conceived 

exclusively for groups with religious aims (Law Nr. 1159 of 1929) 49 . This 

law, by establishing the equal treatment of organizations with religious aims 

with those of welfare and education, grants important tax privileges (and so 

extends the advantages accorded to the associations of the this latter type). 

On the other hand, this law subjects groups with religious aims to the control 

of the government and gives the State authorities the right to annul the 

decisions of their administrative bodies and to replace them with a State 

commissioner 50 . Apart from of all the advantages and disadvantages linked 

with these provisions, the acknowledgement of legal capacity according to Law 

Nr. 1159 of 1929 has great significance, because it confirms the religious 

nature of the recognised group. It forms the basic precondition (in fact, if not 

in law) for an application for an agreement with the Italian State. 

The six denominations which have come to an agreement with the Italian State 

are no longer subject to Law Nr. 1159 of 1929, which has been replaced in 

49 Forty different religious entities have been recognized on the base of this law: among them there are 

Orthodox entities, including the Orthodox Christians Association in Italy; the Russian Orthodox 

Church in Rome and in San Remo; one Islamic entity, the Islamic Cultural Centre of Italy; different 

Evangelical entities and the “Mormons Church”; the Soka Gakkai; the Italian Hindu Union; the Italian 

Buddhist Union; the Foundation for the Preservation of the Mahayana tradition; the “Christian 

Science”; the Pentecostals Christian Congregations and the Salvation Army: cf. 

http://www.interno.it/mininterno/export/sites/default/it/assets/files/14/0853_enti_di_culto_ricon 

osciuti_D.P.R..pdf, accessed the 27 th January 2010.The competence for this recognition is attributed 

to the Minister of Interior. The recognition can concern the church itself (e. g.: the Evangelical 

Lutheran Church in Italy); a national representative institution (e. g.: the Christian Congregation of 

Jehovah’s Witnesses); a central “patrimonial” body (e. g.: the Baptist Evangelical Christian Union of 

Italy); a cultural centre (e. g.: the Islamic cultural centre of Italy) or even single entities that are 

connected with the central ones. The discretionary power of the Minister of the Interior is greater in 

reference to the entities of the religions without concordat or agreement. According to Law 

1159/1929, the Minister of Interior will take into consideration the assetts of the entity that claims 

recognition (these must be sufficient for the activities foreseen in its statute); the number of members 

and how widespread they are in the country; the compatibility between the statute and the main 

principles of the Italian legal system and the aim of the entity, which has to be “prevalently” of 

religion and cult. 

50 All these powers raise serious questions of legitimacy, concerning the respect of the constitutional 

principle of religious autonomy.



their case by the (far more favourable) provisions contained in the separate 

agreements. However, the legal capacity obtained on the basis of this law is 

maintained by the six denominations. The Jewish communities and their 

Union, on the other hand, were never subjected to the law 1159/1929; they 

obtained legal personality by a law (Nr. 1731 of 1930) especially created for 

them, which regulated their activity in detail. The law was abrogated when 

the agreements were concluded, but the communities and their Union have 

maintained the legal capacity granted them on the basis of this law. Parallel 

provisions apply to the Tavola Valdese and the consistories of the churches in 

the Vaudois Valleys, which have – even after the conclusion of the 

agreements - kept the legal capacity which they had obtained not on the basis 

of legal provisions, but because of “antico possesso di stato” (long-standing 

possession of status, which means they had legal capacity even before the 

Italian State was founded) 51 . 

A final remark concerns the Catholic Church which has public law legal 

capacity, even if it is in no way comparable to the bodies which form part of the 

State organisation. It can, if at all, be compared to foreign States which are 

public law subjects in Italian law. 

Consequently, it is possible to say that Italian ecclesiastical law forms a four- 

tier system. The most prominent position is held by the Catholic Church, 

which, because of the number of its adherents and its special significance in 

Italian history enjoys a preferential position secured by the Agreement of 

Villa Madama and numerous other regulations in various ordinary laws. 

An intermediate position is held by those denominations which have come to 

an agreement with the State. The groups concerned here are those which 

51 This is also the case for the Holy See, the oldest Catholic parishes, seminars or cathedrals, and the 

Orthodox groups living in the old Habsburg possessions of Venice and Trieste. In other cases legal 

personality can be recognized through a specific law: this is the case of the National Conference of 

Catholic Bishops (recognized by the new concordatarian legislation); of the Jewish Communities and 

their central Union, recognised by the intesa which confirmed their previous legal status and of the 

entities of the Adventist Church and of the Assemblies of God, equally recognised by their respective 

intese.



have existed in Italy for a long time (i.e. the Valdensians and Jews) or more 

recent groups which however have no characteristics incompatible with Italian 

law. They are guaranteed a position equivalent, although not equal, to that 

of the Catholic Church, participating in the 0,8% system and enjoying tax- 

deduction from donations; tax reductions for religious activities; facilities for a 

presence in state schools, the army, prisons and hospitals; regional facilities 

for public financing of places of worship; facilities in being financed as non- 

profit-making organizations. 

In a lower tier are the denominations regulated by the Law Nr 1159 of 1929 

that allows tax reductions for religious activities; the possibility, under some 

conditions, of a presence in state schools, the army, prisons and hospitals and 

that make easier regional facilities for the financing of the places of worship. 

Finally, in the lowest tier are the denominations - some of them with a 

significant number of adherents (e.g. the Muslims) - which have only 

relatively recently settled in Italy and which are sometimes characterised by 

doctrines and practices which are, according to the predominant 

interpretation, in more or less open conflict with public order (it is the case 

of some controversial “new religious movements”, e.g. the Scientology 

Church): these groups are regulated by the general laws on associations and 

are excluded from some important privileges (for instance with respect to fi- 

nancing, religious education and pastoral care). These denominations can 

simply enjoy the benefits guaranteed by the general law to all private groups. 

Consequently, they do not enjoy the benefits specifically laid down for 

religious groups although they should have the right, for example, to receive 

public money for building places of worship and to enjoy the tax reduction 

for their specific religious activities. Nevertheless, this seldom happens 

because of the resistance, in the forst case, of the regional authorities, which 

have a preference for more traditional and institutionalized religions, and in 

the second of the tax authorities which apply tax reductions only to the



groups that are recognised in the forms laid down by Law 1159/1929. 

Roughly speaking, this four-tier system is based on Italian history and 

culture: however this does not mean it is above criticisms. 

The first remark concerns the extent of the system of treaties and agree- 

ments, which was expanded to include matters which could have been 

dealt with by State law - with more satisfactory results with respect to the 

principle of equality. For instance in the field of the financing of the 

denominations the present system excludes Muslims and Jehovah's Witnesses 

(which, considering the number of adherents, form the second and third 

largest religious communities in Italy): without an agreement with the Italian 

State, they neither participate in the distribution of the 0.8% IRPEF nor can 

deduct from their taxable income sums donated to their religious 

community. A State law extending these channels of funding to all 

denominations (which are recognised as such by Italian law) would show more 

respect for the “equal freedom” guaranteed by Art. 8 Const. A similar criticism 

applies to other areas of Italian law. There is no law common to all religious 

communities concerning problems which could be solved uniformly 

(besides financing, this applies to pastoral care in public institutions, access 

to schools etc.). Such law would leave to the treaties and agreements only the 

regulation of problems which are of special interest to specific 

denominations (for example refusal of blood transfusions for Jehovah's 

Witnesses, ritual slaughter of animals for Jews, Sabbath rest for Jews and 

Adventists etc.) 52 . 

V. State financial support for religion 

The Agreement of Villa Madama of 1984, which also makes use of the 

new possibilities created by the Codex Iuris Canonici, has fundamentally 

52 The problems connected with this four-tier system are widely examined by Randazzo, Diversi ed 

eguali …, cit., pp. 181 ff.



changed the system of State funding of the Catholic Church. 

As a consequence of the Law Nr. 222 of May 20 1985, which gave effect 

to the provisions of the agreement on Church entities and property reached 

between the Italian State and the Catholic Church in the preceding year, two 

systems of financing have been established: they apply both to the Catholic 

Church and to the other denominations which have signed an agreement, 

benefit. The first type concerns a quota of 0.8% of the revenue from 

IRPEF (imposta sul reddito delle persone fisiche, income tax, which is paid annually 

by all Italians liable to taxation who earn more than a minimum income). 

In the tax declaration the taxpayer, by ticking the respective box, can 

determine to devolve the money to: 

a) the Italian State for extraordinary measures against famine in the world, 

natural disasters, aid to refugees, the conservation of cultural monuments; 

b) the Catholic Church, for the religious needs of the population, the support 

of the clergy, welfare measures benefiting the national community or third 

world countries; 

c) one of the denominations which have signed an agreement with the 

Italian State. 

The quota of 0.8% is distributed on the basis of the declarations of the 

taxpayer. If a person does not declare any preference, his quota is 

distributed among the different recipients in proportion to the choice made 

by the rest of the taxpayers 53 . 

53 There are certain peculiarities which must be mentioned. The Christian Evangelical-Baptist Union, 

which has an agreement with the State, originally declined to take part in the distribution of the 0.8% 

of IRPEF but in 2008 changed opinion and it is now trying to reach a new agreement with the 

State. The Pentecostals have decided to give up their right to the part of the 0.8% IRPEF 

corresponding to the persons who did not express any choice. Moreover, together with the 

Adventists and Waldensians, they decided to use the 0.8% revenues for social and humanitarian 

purposes only, because they are of the opinion that the financing of the Church and the maintenance of 

the clergy should be exclusively based on donations by the Church members. The available data show 

the following distribution: in 2004 about 40% of the taxpayers made a choice, and 87 % of these 

(which roughly equals 35% of all taxpayers) opted in favour of the Catholic Church, whereas 10% 

preferred the Italian State and the remaining 3 % are divided among the Seventh-Day-Adventists, the 

Assemblies of God (Pentecostals), the Valdensians, the Lutherans and the Union of Jewish 

Communities. Of the sums thus attributed to the Italian Conference of Bishops, 35% was used for the



The second type of financing concerns the possibility of off-setting from 

taxable income donations up to Euro 1.032,91 to the Catholic Central Insti- 

tute for the Support of the Clergy (or similar institutions of other denomi- 

nations). 

Scattered amongst various other legal provisions are additional forms of 

direct or indirect funding of the denominations. For instance many regional 

laws destine lots and parcels of land for the erection of places of worship and 

Law Nr. 390 of 1986 facilitates the loan or hire of State real property to 

Church bodies. In both cases it is uncertain whether these provisions apply 

only to the Catholic Church and the denominations with an agreement or to all 

denominations. 

There is no doubt that the present system of financing, which follows the 

Spanish model 54 , is a step forward compared to the situation existing in 

Italy before 1984 and is in certain respects preferable to the systems that are in 

force in other European countries, characterised by inflexible mechanisms 

which may sometimes come into conflict with religious freedom. However, 

apart from certain details (i.e. the distribution of the quota of IRPEF pertaining 

to persons who have not declared their preference), there are some 

fundamental features of the present system which may be problematic. As 

already said, the access to the two main channels of finance (0.8% IRPEF and 

donation deductible from taxable income) is dependent on the conclusion of 

a concordat or an agreement with the Italian State: this pre-condition 

excludes from any form of financial support the denominations which 

cannot or do not want to conclude such an agreement or whose application 

maintenance of the clergy, about 20% for welfare measures and the remaining part (about 45%) for 

purposes of worship to the benefit of the population: cf. http://it.wikipedia.org/wiki/Otto_per_mille, 

accessed the 28 th January 2010. 

A disputed question is the choice of the State to use its part of 0.8% to finance the restoration of … 

Catholic buildings: cf. I. Pistolesi, La quota dell’otto per mille di competenza statale: un’ulteriore forma di 

finanziamento (diretto) per la Chiesa cattolica ?, in « Quaderni di diritto e politica ecclesiastica », 2006/I., pp. 

163-182 

54 Cf. C. Cianitto, Il finanziamento delle confessioni religiose in Italia e Spagna: scelte a confronto, ibid., pp. 197- 

201.



for an agreement is rejected by the State. 

In the area of taxation the denominations and their entities enjoy numerous 

privileges. Italian tax law is particularly fragmentary and only its basic 

principles can be mentioned here. The starting point is the equal treatment of 

the organizations with religious aims and those with welfare and education 

aims. This provision applies both to the Catholic Church entities (Art. 7 Nr. 

3 of the Agreement of Villa Madama) and to the other denominations (Art. 

12 of the Royal Decree of 28 February 1930, which implements the Law 

1159 of 1929. The extension of the legal regime of welfare/education 

organizations to religious organizations gives these latter numerous 

advantages, for instance a rebate of 50% on corporation tax (imposta sul reddito 

delle persone giuridiche, IRES), the exemptions from inheritance and donation 

tax, value added tax (imposta sul valore aggiunto, IVA), local land transfer tax 

(imposta comunale sull'incremento di valore dei beni immobili), etc. 

Finally it must be noted that the real property of the Holy See located on 

Italian territory (Art. 13 and 14 of the Lateran Treaty) as well as the other 

real properties named in Art. 13 and 14 of that Treaty, are exempt from any 

kind of tax or duty toward the State or other public entities. 

VI. Legal effects of religious acts 

The religious rules that govern the internal activities of religious groups can 

have civil effect in the Italian legal systems provided they are not in contrast 

with its fundamental principles. When a religious entity of denomination with 

agreement has a legal status internal rules can also have full effects in matter 

of property and exchanges between religious organisations and thirds if they 

are published, and consequently cognizable, in registers of legal persons of 

Prefectures. 

Where religious acts have a more evident civil relevance is in the field of 

marriage.



Art. 34 of the Concordat of 1929 restored the civil law validity of Catholic 

marriages after that the Civil Code of 1865 had recognised the civil marriage as 

the only form with legal effects. The Concordat of 1929 stated that Church 

marriages could be registered in the registers of births, marriages and deaths 

kept in every Italian municipality: once registered, they obtain full validity in 

State law. Additionally it was ruled that the Church courts (not the State 

courts) were competent to deal with annulments and dissolution of the 

registered Church marriages (the so-called "concordat-marriages", matrimoni 

concordatari) and that the decisions of these courts, which were pronounced on 

the basis of Canon Law, obtained civil law validity through a (highly 

summary) recognition procedure (giudizio di delibazione) by the Italian courts of 

appeal. It was of course still possible to celebrate a civil law marriage (which 

was completely regulated by State law and subject to the jurisdiction of the 

State courts) and, for the members of non-Catholic denominations, Law Nr. 

1159 of 1929 introduced the possibility of being married by a minister of their 

own denomination: but, differently from the "concordat-marriages”, the 

regulation of these marriages and the power to declare their nullity were 

matters for the legislation and the courts of the State 55 . 

Art. 34 of the Concordat and Law Nr. 847 of 1929, which was passed for its 

implementation, have caused numerous problems which the Agreement of 

Villa Madama has tried to solve, without changing the fundamental principles 

of the system laid down in 1929. 

Art. 8 of this new Agreement recognises civil law effects of the marriages 

concluded according to Canon Law, provided that the certificate issued by 

the minister conducting the marriage is registered in the state register of 

births, marriages and deaths. The marriage starts having civil law effects 

since the moment of its celebration, even if it is registered at a later date. It is 

55 Cf. A. C. Jemolo, Il matrimonio, in Trattato di diritto civile, ed. by F. Vassalli, Utet, Torino 1957, III, I, I, 

pp. 246 ff. and F. Finocchiaro, Del matrimonio, art. 79-83 cod. civ., in Commentario del codice civile, ed. by A. 

Scialoja and G. Branca, Zanichelli - Società Editrice del Foro Italiano, Bologna-Roma 1971, pp. 196 ff.



not possible to register and so give civil law effects to Church marriages of 

persons who have not reached the age of consent for civil law marriage (18, or, 

with a court authorisation, 16 years of age) or when there is an impediment to 

the marriage which is regarded as insurmountable by civil law (n. 4 of the 

Additional Protocol to the Agreement of Villa Madama regards as such the 

impediments for reasons of insanity, previous marriage, crime and direct 

blood relations). In order to ascertain the existence of impediments, the 

parties are required to publish the banns at the town hall, according to the 

rules that apply to civil marriages too. In this way religious marriages are 

prevented from obtaining civil law validity through registration when they 

could not have been concluded under the provisions of the Civil Code, so 

that equality of citizens in matters of marriage is granted regardless of the 

denomination to which they belong. The same article also provides that the 

court of appeal may, on application of the parties, declare the civil validity of 

the annulments of marriage declared by the Church courts. Before giving civil 

effects to these ecclesiastical courts decisions, the court of appeal must 

however establish that (a) the Church court had jurisdiction to 

acknowledge the grounds of annulment; (b) during the anulment procedure 

in front of the Church courts, the fundamental principles of Italian law 

concerning the rights of the parties had been respected 56 ; and (c) the 

preconditions for the recognition of foreign judgements in Italy were met, 

which means that the decision of the Church court cannot contain provisions 

that are in conflict with Italian law. Consequently it is argued that Church de- 

cisions annulling the marriage for typically denominational reasons (for 

instance disparitas cultus, ordination and vow of chastity) may not be declared 

56 Recently Italy has been condemned by the European Court of Human Rights (Pellegrini v. Italy, n. 

30882/96, July 20, 2001) because the Court of Appeal of Florence had given civil effects to a Church 

court decision that had annulled a “concordat-marriage”: according to the European Court, the 

Church judgment had not respected the principles of fair judgment granted by art. 6 of the European 

Convention for the Protection of Human Rights and Fundamental Freedoms: in, 

http://www.olir.it/documenti/?documento=1154, accessed on 28 January 2010.



valid in Italian law, because this would conflict with the principle of religious 

freedom. The Constitutional Court has also emphasised the existence of a 

similar conflict regarding the Church decisions which annull a marriage on the 

grounds of a deception by one of the parties only: in this case it is possible 

to declare these decisions valid in Italian law only with the consent (or at least 

without the dissent) of the party who was in good faith or after proof that the 

deception was known (or at least recognisable) to the latter at the time of 

marriage 57 . 

On the subject of the jurisdiction of the Church courts, Art. 8 of the 

Agreement of Villa Madama is worded ambiguously (perhaps purposely 

because of the difficulty of overcoming the differences of opinion between 

the parties during the negotiations). This Article does not repeat the clear 

wording of Art. 34 of the Lateran Concordat, which stated that the cases 

concerning the annulment of marriages (and the dissolution of marriages 

which had been concluded but not consummated) were reserved to the 

competence of the Church courts: it declares that the Church decisions of 

annulment are valid under the conditions listed in the Article, without any 

reference to the exclusive character of the Church court jurisdiction. 

Because of the lack of any reference to the exclusivity of Church 

jurisdiction, some commentators argued that the State courts are 

competent alongside the Church courts to declare the nullity of concordat 

marriages. This opinion was adopted by the Court of Cassation in a decision 

of February 1993 and it is has been followed by the majority of the Italian 

courts. 

Questions related to religious marriages have been of great relevance in the 

past, but today they (while remaining of great theoretical interest) have only a 

57 Cf. R. Botta, Matrimonio concordatario, in Il diritto di famiglia, I Famiglia e il matrimonio, ed. by G. Bonilini, 

C. Cattaneo, Utet, Torino 1997, pp. 213 ff.; S. Domianello, I matrimoni davanti a ministri di culto, in 

Trattato di diritto di famiglia, ed. by P. Zatti, vol. I, Famiglia e matrimonio, ed. by G. Ferrando, M. Fortino, 

F. Ruscello, t. 1: Relazioni familiari, matrimonio, famiglia di fatto, Giuffrè, Milano 2002, pp. 202-492 and N. 

Marchei, La giurisdizione dello Stato sul matrimonio "concordatario" tra legge e giudice, Giappichelli, Torino 

2008.



small practical importance: since the introduction of divorce in 1970, the 

number of applications to give validity to decisions of annulment of the 

Church courts has dropped to a few hundred per year. 

As has been mentioned, citizens who do not wish to marry "in facie Ecclesiae" 

may conclude a civil marriage or, if they are members of a denomination 

other than the Catholic one, may be married by a clergyman of their own 

denomination according to the provisions of law Nr.1159 of 1929. This law is 

no longer applied to those denominations which have concluded an 

agreement with the Italian State but the provisions on marriage contained in the 

agreements – although introducing significant changes (for instance the 

abolition of the preliminary State authorisation for the clergyman who 

celebrates the marriage) - do not change the structure of the institution, 

which remains a marriage concluded in religious form but ruled 

completely by civil law. 

VII. Religious Education 

In Italy since 1873 there are no theological faculties in the State universities. 

There are no particular problems regarding the right of the denominations to 

establish schools and other educational institutions of every level and type: 

this possibility is in fact granted to all private law persons by Art. 33 Cost., 

and the provisions of the Agreement of Villa Madama and some of the 

agreements with other denominations merely repeat and apply this rule. The 

question of the legitimacy to publicly fund private (including religious) schools 

has being discussed for a long time. In any case, in 2000 a new law established 

that families which send their children to private schools recognised by the 

State (scuole paritarie) are entitled to a partial refund of the fees 58 . 

In the field of education, discussion focused on the topic of religious 

58 Cf. A. Ferrari, Libertà scolastiche e laicità dello Stato in Italia e Francia, Giappichelli, Torino 2002.



education in State schools. Neither the Italian Constitution nor ordinary laws 

contain any provision specifically devoted to religious education 59 . Rules on 

this matter can only be found in the law on “admitted religions” (n. 1159 of 

1929), in its executive decree (n. 289 of 1930) and in the agreements 

concluded by the State with some denominations. In line with the attention 

paid to the institutional profiles of religion, the Italian legal system considers 

religious education in schools from a strictly denominational point of view, in 

relation to the needs of the pupils and families belonging to a specific religion. 

In Italian schools the cultural teaching of religious phenomenon (“education 

about religion”) is still barely developed. 

Concerning religious education in State schools there is a clear difference 

between the provisions applying to the Catholic Church on one hand and to 

the other denominations on the other. The Agreement of Villa Madama 

stipulates that two classes of religious education will be taught in play 

schools and primary schools and one class at senior schools per week; no 

religious education is provided at university level. The State bears the total 

financial burden of Catholic religious education. 

Every year the pupils - or, up to the end of intermediate school, which is 

usually completed at the age of 13, their parents - must declare whether they 

intend to attend the Catholic religious education classes or not 60 . If they 

decline, the pupils may concentrate on other subjects during this period or 

may leave the school premises (this right was granted the pupils by the 

decision Nr. 13 of the Constitutional Court in 1991) 61 . 

The teachers of Catholic religious education are chosen by the diocesan 

bishop from a list of people who have been trained in theology and Church 

59 For a minor exception see art. 1 of the Legislative Decree n. 59 of 19 February 2004. 

60 When students are less than 18 years old, their choice need to be confirmed by their parents. 

61 It is for this reason that this teaching is said to be voluntary and not optional. The teaching of the 

Catholic religion was followed in 2008-2009 by 91% of students: more in the South (98.2%) than in 

the North (85.1%); more in primary schools (94.2%) than in high schools (85.3%); less in big cities: cf. 

http://www.chiesacattolica.it/pls/cci_new_v3/V3_S2EW_CONSULTAZIONE.mostra_pagina?targ 

et=0&id_pagina=328, accessed 27 January 2010. Cf. A. Gianni, L’insegnamento della religione nel diritto 

ecclesiastico italiano, Cedam, Padova 1997.



disciplines and (since 2003) have won a regional competition (which is proof 

of their knowledge of school system). The recognition by the Church authority 

take the form of a written confirmation (nihil obstat) which certifies that they 

are suitable to teach religious education. If this recognition is withdrawn 62 or 

if there are not students enough, the teacher must leave the teaching of 

Catholic religion and will be assigned to the teaching of a different 

subject (if he/she is qualified to do so) or will be given a different job in 

the public sector 63 . The curricula for Catholic religious education in each 

type of school are determined through an agreement between the Minister of 

Public Education and the Chairman of the Italian Conference of Bishops: the 

curricula must consider the teaching of religion “in the framework of the goals 

of the school”, avoiding all forms of (strong) proselytism or discrimination. 

The school books must have the nihil obstat of the Conference of bishops and 

of the bishop of the diocese in which the school where the books will be used 

is located. The concrete experience generally shows that the teaching of 

Catholic religion is pluralistically oriented and open to the study of other 

religious traditions, revealing the role played by the Catholic church in 

adapting Italian society to the growing pluralism. 

The six denominations which have reached an agreement with the Italian State 

may send their own teachers to the State schools where pupils, their 

parents or the school teachers require the teaching of a certain religion 

(e.g. Judaism) or the study of “the phenomenon of religion and its 

implications” in general (as it is said in Art. 10 of the agreement with the 

Tavola Valdese). The provision of this teaching is agreed by the competent 

school authority and the representatives of the denomination, while the 

financial burden is borne by the denomination 64 . 

62 For some examples of behaviour in conflict with Catholic doctrine (e. g., re-marriage after divorce; 

pregnancy without marriage) cf. V. Pacillo, Contributo allo studio del diritto di libertà religiosa nel rapporto di 

lavoro subordinato, Giuffrè, Milano 2003, pp. 334-363. 

63 Cf. law n. 186 of 18 July 2003. 

64 The agreements between some minority denominations and the Italian State also contain provisions



Finally, according to the Law of 1929, denominations without agreement may 

use the classrooms of State schools for religious education when the students 

belonging to a denomination are in a considerable number in a school and 

there are no places of worship of their religion available in the proximity of 

the school. All the costs are paid by the denomination and an agreement 

between the religious group and the Director of the Regional School Office is 

necessary. It is interesting to note that this possibility has never been used by 

the Muslim communities and that it has never been mentioned in the public 

debate about the possibility of an Islamic religious education in State school 65 . 

The regulation of religious education contained in the Agreement of Villa 

Madama and in the agreements with minority religions has been the object of 

numerous conflicts. However, since the intervention of the Constitutional 

Court, the system seems to have attained a point of equilibrium. Some doubts 

remain concerning the obligation of the pupils to declare whether they want 

to attend Catholic religion classes (with reference to the protection of 

privacy), the fact that the State is charged with the financial burden of 

Catholic religious education (but not that of the other denominations; in some 

cases the State financial support has been rejected by the denominations 

themselves) and the limitation of religious education classes only to pupils of 

the denominations which have concluded an agreement. These problems are 

however general problems which depend on the fundamental choices which 

are at the basis of the whole reform of Italian Church-State relations law and 

which reappear in all parts of the system, although in other forms. 

excluding forms of “widespread” religious education (i.e. which takes place under cover of other 

subjects) and prohibiting pupils being forced to participate in religious acts or acts of worship. This 

has raised the problem of some practices traditionally wide-spread in State schools, for instance the 

blessing of the class-rooms (which is done once a year by a member of the Catholic clergy), the 

participation of the pupils in religious ceremonies during school hours (usually a mass celebrated 

according to the Catholic rites), and the meetings of the pupils with the diocesan bishop on the 

occasion of his pastoral visits. A decree of the Ministry of Public Education (1992) granted the 

collegial bodies of the schools the right to decide on such activities, provided the participation of 

the pupils is voluntary, but some courts have affirmed that these activities are illegal. 

65 Cf. A. Ferrari, La scuola italiana di fronte al paradigma musulmano, in Islam in Europa/Islam in Italia tra 

diritto e società, ed. by Id., Il Mulino, Bologna 2008, pp. 171-198.



Finally it must be noted that special provisions in the Agreement of Villa 

Madama (Art. 10, which reappears in the agreements with some other 

denominations) state that seminaries and educational institutions in Church 

disciplines are free from any kind of State interference and are solely under 

the authority of the Church. The same article stipulates that the appointment 

of the professors at the Catholic University of the Sacred Heart (Università 

Cattolica del Sacro Cuore) is subject to the consent of the Church authorities as 

far as religion is concerned 66 . 

VIII. Religious symbols in public places 

The Italian Catholic tradition and the Italian interpretation of the principle of 

laicità facilitate the possibility to wear religious symbols in public places, 

included schools, hospitals and public offices, allowing a relevant degree of 

freedom to public servants also 67 . 

Sections 25 and 26 of the Charter of Values, Citizenship and Integration 

published in 2007 under the auspices of the Ministry of Interior declare that « 

on the basis of its religious and cultural tradition, Italy respects the symbols 

and the signs of all religions. No one can say to be offended by the signs and 

symbols of a religion different from his/her own. As established by 

international Charters, it is convenient to educate the youth to respect the 

other’s religious beliefs, without finding in them elements of division. In Italy 

there are no restrictions on people’s attire, as long as it is chosen freely and it 

is not detrimental to human dignity ». The only limit would be in relation to 

symbols which impose to « cover the face because this [would impede] the 

66 Cf., on this matter, the decision of the ECHR of 20 October 2009, n. 39128/05 which condemned 

Italy for recognizing the dismissal of a professor of the Catholic University of Milan without verifying 

the concrete respect of the fair process rules by the University authorities: 

http://www.olir.it/documenti/index.php?documento=5133, accessed the 27 th January 2010. 

67 This right is particularly disputed in relation to courtrooms, where judges can forbid the attendance 

of persons with covered head. Art. 6 of the agreement with the Jewish communities explicitly allows 

to take an oath with covered head. Cf., in general, V. Pacillo, Contributo allo studio del diritto di libertà 

religiosa nel rapporto di lavoro subordinato, cit., pp. 312 ff.



person’s recognition and [would hinder] establishing relations with others » 68 . 

Consequently, it is possible to wear headscarves in State school and when 

photos for identity cards are taken, if the face is well visible 69 , but there is 

some tolerance toward some other disputed symbols as the kirpan 70 . 

Nevertheless, in recent times, the fear of Muslim immigration and a lively 

debate around the preservation of Italian identity has made the situation more 

complicated focusing the question around two paradigmatic symbols, the 

crucifix and the burqa. 

In relation to the first, it is disputed validity and the constitutional legitimacy 

of the decrees (which date back to the fascist regime) that allow the exposition 

of the crucifix in the classrooms of State school and in courtrooms. Some 

people think that these rules are not more in force and that the exposition of 

crucifix is contradictory with the constitutional principle of laicità, which 

prescribes cultural and religious pluralism. But the legal scholars and the 

Courts that share this idea 71 are a minority in Italian society. The presence of 

the crucifix in State schools is supported by the majority as an expression of 

Italian laicità 72 giving constitutional relevance to the Catholic cultural tradition 

of the country 73 . According to the Administrative courts, the crucifix 

represents a sign of national identity and cannot be considered a threat to 

68 Cf. nn. 25 and 26 of the Charter, cit. 

69 Cf. Art. 289 of the royal decree 635/1940 and the circulars of the Ministry of the Interior n. 4/1995 

and 14/07/2000. 

70 Cf. Criminal Courts of Vicenza (28th January 2009, in 

http://www.olir.it/documenti/index.php?documento=4950) and Cremona (19th February 2009, in 

http://www.olir.it/documenti/index.php?documento=4939), which confirm the status of “accepted 

minority” enjoyed by the Sikh community, which is well integrated in North Italy where Sikh work as 

specialised farmers. 

71 Cf., for example, the ordinance of the Cassation Court 15614/2006, in 

http://www.olir.it/documenti/?documento=3751 accessed the 27 th January 2010. 

72 Cf. Council of State, sentence n. 556 of the 13 th of February 2006, in 

(http://www.olir.it/ricerca/index.php?Form_Document=3517, accessed the 27 th January 2010. 

73 Beside the decisions quoted in the note above, see the opinions of the Council of State of 15 

February 2006 (in http://www.olir.it/ricerca/index.php?Form_Document=3638) and 27 April 1988, 

n. 63 (http://www.olir.it/ricerca/index.php?Form_Document=730), accessed on the 27 th of January 

2010. Cf. also J. Pasquali Cerioli, La laicità nella giurisprudenza amministrativa, in 

http://www.statoechiese.it/index.php?option=com_content&task=view&id=244&Itemid=40 and N. 

Marchei, Il simbolo religioso e il suo regime giuridico nell’ordinamento italiano, in Symbolon/Diabolon. Simboli, 

religioni, diritti nell’Europa multiculturale, ed. by E. Dieni, A. Ferrari & V. Pacillo, il Mulino, Bologna 

2005, pp. 261-301.



freedom of conscience: on the contrary, it allows all children, and especially 

the extra-communitarian ones, to perceive the universal values of tolerance 

written in the Constitution 74 . Finally, in relation to courtrooms, the Consiglio 

Superiore della Magistratura (the self-governing body of the Italian judges) has 

expelled from the judiciary roll a judge who refused to have hearings in a 

courtroom where a crucifix was displayed 75 . 

What the history of the crucifix issue seems to say is that a particular 

interpretation of national identity prevails on both neutrality of institutions 

and individual rights. These latter would also be violated by some draft laws 

which propose to ban the burqa from the public spaces, considering it as a 

symbol of Islamic fundamentalism directed against both women and national 

security 76 . 

74 Cf. Council of State, opinion of 15 February 2006, cit. Recently the ECHR condemned Italy, 

considering the display of the crucifix a violation of individual religious freedom and freedom of 

conscience: decision of 3 November 2009 n. 30814/06, in 

http://www.olir.it/documenti/index.php?documento=5146, accessed on 27 January 2010. 

75 Decision of 22 January 2010: 

http://www.csm.it/comunicati%20stampa/CommStampa.php?idcomuni=161, accessed on 27 

January 2010. 

76 Differently from what has been proposed in France, the Italian draft laws ban the burqa in all public 

spaces: cf., for example, the proposal n. 2422 of 6h May 2009, in 

http://www.camera.it/_dati/leg16/lavori/schedela/trovaschedacamera_wai.asp?Pdl=2422 and the 

proposal n. 2769 of 2 October 2009, in 

http://www.camera.it/_dati/leg16/lavori/schedela/trovaschedacamera_wai.asp?Pdl=2769, both 

accessed on 27 January 2010.

CATASTROPHIC DAMAGES AND INSURANCE 

ELENA PODDIGHE * 

I. Harms and catastrophes: defining “catastrophic harms” 

1. The notion of “catastrophic harms” is not commonly used in Italia legal 

culture. Although catastrophes – both natural (earthquakes, floods) and 

human (mostly related to transport, industrial or terrorist activities) – are not 

uncommon, one finds the term only rarely and in relation to the application of 

exemption clauses inserted in insurance policies (“danni prodotti da 

catastrofe” is the term generally used: see Cassazione civile 8 november 2006, 

n. 23870, SAI v. Salvatori). 

II. Catastrophic harms and Statutory law 

2. In the Italian legal system there is no definition of “catastrophic harm”. 

Generally, in the event of catastrophes, statutory measures are adopted to face 

the many aspects related. 

But this is an ex post facto definition, which depends on many variable factors. 

The most significant legislation on catastrophes is that following the flood 

caused by the Vajon dam in 1963 in which over 4000 people died (Law 4 

november 1963 n. 1457); similar provisions have been adopted in the 

numerous earthquakes that periodically occur in Italy. 

III. Insurance system 

3. It is common in self-insurance policies for businesses and individuals that 

insurance against damages from earthquakes and floods may be bought. This 

means that insurance against such events is not generally included. As already 

said it is common for statutory law to provide some sort of compensation for 

catastrophic harms. 

* Elena Poddighe is Professor of Comparative Private Law at the University of Sassari



4. Apparently there is no distinction between damages covered by insurance 

and damages not covered. 

5. Generally, unless an additional premium is paid, damages arising from 

earthquakes and floods are not included. 

6. Floods generally bring considerable damages to agricultural activity. In 

these events the Italian Regions (20) – which have constitutional competence 

on agriculture – usually provide some sort of compensation. The funds 

generally come from a regional fund which is financed through general 

taxation. 

7. Premiums for insurance against floods and earthquakes depend on the 

location of the insured building or activity and on statistical data on which 

insurance companies rely. It is an accepted best practice that insurance 

companies should reduce the risk arising from catastrophic harms through re- 

insurance or coinsurance. Although there is no direct duty to re-insure, there 

is an indirect obligation to do so in order to reduce the amount of legally 

required reserves in their relation to the risk borne. 

8. Only very recently – and with regards to asbestos cases – has the notion of 

latency arisen, and has been considered in the fields of criminal law and of tort 

law. 

9. As already said, in the occurrence of catastrophes specific legislation is 

enacted. The only field in which there is a general – and extremely complex – 

legislation is in the field of damages from terrorist activities. The first statute 

was enacted by Law 13 August 1980, n. 466 passed in the wake of the terrorist 

bomb attack on the Bologna railway station which ten days earlier had killed 

over 80 persons. Since then the specific legislation has been considerably 

widened and covers all victims of terrorist attacks, irrelevant of its 

catastrophic or non-catastrophic nature. At any rate this legislation covers any 

future event connected with terrorist activities within the Italian territory, 

whatever the nature and reasons of the activity. To this legislation one can add

Elena Poddighe 

Catastrophic Damages and Insurance 

the EC Regulation 2027/97 (as modified by Regulation 889/2002) on 

compensation to victims of air transport accidents. 

10. If one defines a catastrophic harm as arising from a single event, the role 

of case-law has been negligible, because statutory provisions have generally 

been rapidly enacted. In the case of catastrophic harm arising from a 

multiplicity of events, the leading example in Italy – as in other European 

Countries – has been damage from infected blood. After many courts had 

decided against health authorities for having provided infected blood for 

transfusion, Law 25 February 1992 n. 210 introduced a compensation system 

for the victims . There has been wide-spread request for a similar provision in 

the case of asbestosis, but no law has yet been passed. 

IV. The Law of Torts 

11. Catastrophic harm is contemplated by a special section of the Italian penal 

code (“Delitti contro l’incolumità pubblica”: articles 422 to 452) and includes 

provisions against both wilful and faulty conduct (mass-murder, arson, 

disaster, ship-wreck, epidemic etc.). These provisions have been widely 

applied in catastrophic harms. There is widespread administrative, civil and 

labour legislation which is related to similar aspects. 

12. Criminal proceedings to not pre-empt civil claims. Italy however has a parte 

civile system, and therefore the harmed party may claim damages within the 

criminal proceeding. In that case he/she is barred from taking his/her claim in 

front of the civil courts. If he decides not to take part in the criminal 

proceeding, the civil claim, and its outcome, is completely independent from 

the criminal proceeding. 

13. In tort law, if the catastrophic harm arises from dangerous activities 

(among them anything to do with explosive or poisonous substances, drugs) 

the burden of the proof is reversed and is upon the defendant to prove he 

adopted all appropriate precautions (article 2050 of the Italian Civil Code).



But even when article 2050 does not apply case-law shows, however, that 

greater the catastrophe, lesser are the defences of the defendant. 

14. On an abstract basis liability should be apportioned in accordance with 

each injurer’s liability. However the courts prefer to apply the principle of 

joint liability (article 2055 of the Italian Civil Code). 

15. Class-actions have been recently introduced in the Consumer Code (article 

140 bis of Decree 6 September 2005, n. 206). The provision has come into 

force on January 1, 2010. The system is quite different from the original US 

class action and is modelled on the examples of joinder of claims that exist in 

other European jurisdictions. 

16. Except in the case of automobile insurance, there is no direct cause of 

action of the injured party against the injurer’s insurance. 

17. If the insurance company is a party of the proceeding (generally because 

summoned by the defendant) the decision will order the insurance to pay 

directly the damaged party. If the insurance does not cover all the damage, the 

rest will have to be paid by the defendant. 

18. When Directive 85/334 was enacted in Italian law a state-of-art defence 

was included. However the courts have interpreted it rather widely. At any 

rate when it comes to catastrophic harms the plaintiffs generally rely on the 

stricter tort provisions of the Italian Civil Code. 

V. Regulatory Agencies and Liability 

19. Public compensation schemes generally are run by public authorities which 

are not the would-be defendants. Therefore there is no pre-emption, 

especially if a criminal proceeding is open against the accused.

MATERNITY FOR ANOTHER – ITALY 

_______________________________________________________ 

ANTONELLO MIRANDA * 

I. Does the Law of your country accept Maternity for another? 

No, but the real and effective situation is not simple and the statutory law 

doesn’t cover all the aspects of the question. In fact the surrogate motherhood 

and the artificial insemination is tolerated instead of permitted. 

II. If the answer is yes, what is the legal situation? 

After a very long time (about 15 years), the Italian Parliament, on 19 th Feb 

2004, enacted the first and long awaited for Human Fertilisation and 

Embryology Act. The statute try to regulate bio-medically assisted 

reproductive technology that is now available only to very limited groups, 

being legally married couple based and hetero-centric in its approach. 

This Act attracted much criticism both from juridical and political point of 

view. The statute was submitted to a popular referendum to modify some 

controversial aspects but the vote (largely in favour of the proposed 

modifications) was not valid as only 25% of voters expressed their opinion. i 

The Act is, as consequence, full in force but the socio-political and juridical 

debates are yet strong and far from an ending. The principal question, indeed, 

seems to be whether the statutory law, as a instrument of social control 

pursuing policy priorities, should regulate and restrain even private life’s 

aspects and the individual’s rights, and whether it should inspect, limit and 

restrict the scientific research. 

A. Overview of the 2004 Human Fertilisation and Embryology Act 

The Italian Human Fertilisation Act was one of the “priorities” of the centreright 

Government majority and it was enacted after a very short Parliamentary 

debate. Furthermore, the usual support of Parliamentary Commission and 

panel of “experts” was very weak while their works were fast especially if 

confronted with the works of precedent Commissions that take about 10 

years to lead, it is just the case to say, to an “aborted” proposal. 

The first impression is that this statute was enacted more to give a political 

answer to part of the electorate and public opinion (especially the Catholic 

oriented part and who was afraid of the unlimited scientific and technological 

developments) vigorously asking for a “legal regulation” of human 

fertilisation services and practices than on the basis of a precise, accurate 

analysis of the problems and their juridical implications and, specifically, of 

* Antonello Miranda is Professor of Comparative Private Law at the University of Palermo



the real needs and expectations of the actual Italian society. It seems, in other 

words, that the Government and the Parliament majority wanted to enact on 

in vitro fertilisation “a” statutory regulation instead of “the” statutory 

regulation. 

The most important point and provision of this statute are: 

a) The statute ensures the fundamental individual rights of each subject and 

of the conceived. 

b) Medically assisted reproduction is legally permitted only if there is no 

therapeutic alternative to the sterility; the infertility, even if it is due to natural 

or unexplained reasons, must be certified by a doctor. 

c) Heterologous artificial fecundation has been forbidden. 

d) Only adult couples (with legal capacity) of different sexes, legally married 

or living together (de facto couples), in a potential fertile age, both of them 

living at the moment of fecundation are entitled to ask for the medically 

assisted reproduction. This, in other words, means that same sex couples have 

been excluded from access to artificial reproduction techniques. Furthermore 

this means that no post-mortem treatment is admitted and, also, that the 

fecundation is barred when the age of the applicants (both of them or only 

one, it is not clear) is out from the potential fertility status, i.e. for the woman 

when she is in menopause. 

e) Applicants must express their consent in writing. The consent must be 

“informed” (i.e. there is an obligation for the doctor to show and explain all 

the consequences, including the legal and psychological ones). It is not 

possible to repeal the consent after the ovule’s fecundation. 

f) Artificial fecundation must be executed according to the medical standards 

and it is up to the doctor to choose times and methodologies but the statute 

requires respect of the “graduality” principle (i.e. the time and method less 

invasive from the psycho-physical point of view of the patient), and suggests a 

single and simultaneous implant of all the produced embryos. These embryos 

must be limited to three (maximum) for each procedure, and their cryopreservation 

or suppression is not allowed unless it is the unavoidable 

consequence of “a serious and documented circumstance of absolutely 

necessity unforeseeable at the time of fecundation” and, of course, it will 

impracticable to proceed to the implant in uterus in a very short time, as soon 

as possible. 

g) Last but not least, any kind of test or experiment on embryos is absolutely 

prohibited like the production of embryos for researches, uses or purposes 

different from the reproductive finality; this will include, of course, clonation 

and genetic manipulation as the creation of hybrids but inhibit also the 

researches on stem cells.

Antonello Miranda 

Maternity for Another - Italy 

B. Analysis of the 2004 Human Fertilisation and Embryology Act 

As already noted, this statute is particularly weak just from a “juridical” or 

technical point of view. In certain circumstances, the statute will be not 

applicable in particular according to some erroneous or misleading provisions. 

In my opinion, with mention to the depicted points, we can observe: 

a) The generic reference to “individual rights” and to the “rights of the 

conceived” is only pleonastic and not conclusive: indeed there is no indication 

that the relative priority of individual rights provided in our legal system is 

modified by this new statute, nor that a new particular “legal personality” -i.e. 

the power to be considered as human being with rights and duties according 

to the law- is granted to the conceived. From a “political” point of view, this 

statute was intended by the “majority” as the first legal recognition to the 

embryo of the “legal personality”. However, the letter of the statute, here 

again, does not permit such an interpretation. On the contrary the generic 

assertion of the “rights” of “all the subjects including the “conceived” adds no 

more to the general rules of the Italian legal system where the “legal 

personality” is acquired only at the moment of the birth while the “conceived” 

–or, even, the “concepturus” according to the Roman law tradition- get only 

specific and single protection and uphold. It seems that the Act tries, on one 

hand, to consider the fecundated and cryo-preserved cells as “subjects” of law 

and regular holders in particular circumstances of an effective right to life or 

to be born (or perhaps more correctly to a right in trying to come into the 

existence) and, on the other hand , to stay within the order of the general rules 

respecting the first right of the woman to psycho-physical integrity and to 

“responsible” maternity - i.e. her right to chose to become or not become 

mother. The general rights granted to the mother, according to the 

Constitution, are logically pre-eminent over the particular right to be born of 

the pre-embryo. No different reconstruction, overturning this priority is 

logically and juridically possible: indeed the legislator may acknowledge a 

woman’s right not to become a mother but cannot certainly impose to her the 

duty to be it anyway (and, personally, I think that before the implant i.e. 

before a pregnancy starts, the father too has the same right to not procreate). 

b) In case of infertility due to natural causes or unexplained reasons, a 

medical certification is needed to obtain access to artificial reproductive 

practises. According to the Guidelines and Rules of Practise of the Health 

Ministry, a couple is infertile when there is no pregnancy after a year or more 

of regular non-protected sexual intercourses. Furthermore, the Guidelines 

entrust the doctor (and in particular family doctor or general practitioner) with 

the duty to certify the “natural infertility”. It is frankly difficult to understand 

in which way the doctor would “check and control” if the couple had 

unprotected sexual intercourses for more than a year and if they do so with 

daily (or more) regularity!



c) The prohibition of heterologous fecundation is a choice of policy but it 

has no foundation in private law rules; indeed, if we look at the rules of our 

civil code, there are provisions on “natural” filiation in order to protect 

children (and their parents) born outside of the marriage or born as 

consequence of an “adultery”, even if that birth was planned with the 

agreement and consent of all the parties. Furthermore there is today an 

obviously possibility, according to the European rules (the Blood’s case it is 

emblematic of the question) to ask for “heterologous” treatment in many 

Medical Centres throughout Europe. 

d) A question of policy, again, is evident on the prohibition for same sex or 

not legally married or living together couples to obtain medical assisted 

reproduction. The rules seems to be against European provision for equality 

and non-discrimination but it is possible to argue that in Italy there is a 

Constitutional “pre-eminence” of the “paramount” interest of children to be 

raised in a “real family” or to be brought up in a nurturing environment 

conducive to their full development. This argument needs a deep analysis too. 

From a merely technical point of view, we can observe that the “letter” of the 

rule is really misleading: in a Country like Italy where the “letter” of the 

statutory law is paramount and where all the interpreters should respect it (we 

have only one source of law, i.e. the statutes!) words are very important. The 

rule grants the possibility to ask for a medical assisted reproduction to “legally 

married” or “living together” couples with no further prescription. From a 

literal point of view a legally married couples, in this case, may be even the 

couple consisting of a man and a woman both of them legally married … with 

their respective different (same-sex) partners! 

e) The requirement of “informed consent” is again a question of policy: it 

seems that far from protecting the “consumer” right to make his choose freely 

and with a complete evaluation of “pro and cons”, the statute encourages 

doctors to “discourage” the practice. According to the Guidelines, the doctor 

must explain the “alternative” possibility of to adoption or affiliation, then the 

juridical discipline of the medical assisted reproduction, and the bio-ethical 

problems linked to the artificial insemination. Only after that, the doctor shall 

explain in full the “technical” aspect of the practise. It is one more difficult to 

imagine how a “Clapham Common” doctor, usually not so expert in legal or 

philosophical questions, should give in a complete and correct way the 

requested information. If past experiences (in similar cases) hold true the 

couple probably will sign the written agreement without reading it at all. 

Nevertheless, this may not be the major problem with this part of the statute. 

The most controversial point is the “impossibility to revoke consent after the 

ovule’s fecundation”. The provision (art. 6) is in contrast with the right of the 

father and of the mother to not procreate: this right is granted until a 

pregnancy starts; a pregnancy starts only when there is the implant in uterus.

Antonello Miranda 

Maternity for Another - Italy 

Furthermore the rule of art. 6 of UFEA is in contrast with the fundamental 

(and Constitutionally granted) right of the individual to refuse any medical or 

invasive treatment. It will be impossible to proceed to an artificial fecundation 

if the woman refuses to be treated … unless we imagine a kind of legalised 

(artificial) rape. The statute, cautiously, says no word on this point. 

f) A very difficult point is the restriction against the creation of more than 

three embryos that should be implanted in a single and simultaneous way. The 

rule seems to be very problematic from a medical point of view. The same 

statute, in the same article, lets the doctor decide case by case, in cases of 

“serious and documented unforeseeable circumstances of absolute necessity.” 

This may occur, for instance, when the embryo’s development is pathological 

and the mother (or the father) refuses to proceed with the implant. The point 

is not simple, and there are different judicial decisions that need to be studied 

in depth. 

g) Policy controversy exists regarding the prohibition, apparently to comply 

with the Oviedo Declaration, of any kind of test or experiment on embryos. 

We can, at least, agree on banning human cloning or genetic manipulation to 

create hybrids but it is more difficult understand why scientists must refrain to 

make their researches if, as the research on the stem cells, this seems to be 

useful for the knowledge and fight against diseases. Here, again, the lawmaker 

was acting on the behalf of what he intended to be a “social priority”, i.e. the 

need to stops “wild reproductions” (and probably to give an answer to the 

“Frankstein’s syndrome”). However, even if this corresponds with the 

absence in our legal system of an absolute “freedom of procreation,” such a 

general prohibition without any kind of control on the scientific research (the 

freedom of research is, fortunately, constitutionally granted and protected) 

may be meaningless. For instance, we wonder who, other the researcher itself, 

will declare that his research is non-prohibited and complies with the 

“reproductive finality,” as the statute law requires? 

Finally, all the provisions of the Italian statute are enforceable only in Italy. 

The European Union legal system allows people to receive medical assistance, 

even for artificial reproduction, from any centre in whatever part of the 

Union. It is extremely significant that from March 2004 onwards in Italy at 

least 3.610 couples (i.e. three times the prior figures) were leaving their home 

country and going to foreign specialised centres to obtain the assistance and 

support for artificial fecundation that is denied in Italy. Perhaps, the Italian 

legislature’s policy is intended to solve the crisis of tourism. 

III. If the answer is no, are they any sanctions? 

Of course, the statute provides for some sanctions: it is a crime to research on 

embryos, to clone a human being, and it is also a crime to create more then



three embryos for each procedure or not proceed to the implant in uterus as 

soon as possible. Persons who do heterologous fecundation should pay only a 

fine even if very heavy (about 450.000 euros); similar penalties apply in cases 

of same sex couples or couples non legally married or not living together or 

not living at all (post-mortem fecundation). 

IV. Is your Law about to change? 

In which way? 

The effective application of the statutory law on the assisted fertilization may 

be substantially different from a “narrow” and “literal” interpretation of the 

same rules. Thanks to the “guidelines” that the “Ministro della Salute” (Health 

Secretary of State) may enact, it is possible reconstrue the law in a more 

concrete and adequate way even if it is impossible to modify “radically” the 

plant of the statute. 

Even the Courts, in particular the Cassazione and the Corte Costituzionale, 

have the possibility to implement the statutory law even if, again, it is 

impossible to modify or erase totally the law. 

i In Italy, the “referendum” is valid only if at least 50% of voters express their opinion.

1. Constitutional rules 

CONSUMER PROTECTION 

BRUNO MEOLI * 

I. GENERAL FRAMEWORK 

Consumer rights are heavily influenced by European Community Law: the 

area is presently regulated mainly at a European level, in many cases the single 

member states simply adopt the laws established by directive, when these are 

not already immediately binding. 

This explains why the area of consumer rights is so highly regulated with 

regard to cross-border contracts concluded within the European Union, while 

it remains rather meagre regarding international contracts that go beyond the 

Union. 

Moreover, Italian law only began to protect the consumer after moves by the 

EU, so in our law consumers were only mentioned for the first time with the 

introduction into the civil code (established with law no.52 of 6 February 

1996) of articles. 1469-bis et seq, laid down in the directive 1993/13/CE 

concerning unlawful clauses in consumer contracts. 

The search for guarantees in our law and Constitution is, therefore, relatively 

recent. In the opinion of experts 1 , the rights of the consumer are framed in 

the people‟s fundamental rights, with reference to: 

- articles 2 and 3 of the Constitution that sets out people‟s right to 

dignity, the need to promote individuality and equality between all the 

members of society; 

* Bruno Meoli is Professor of Comparative Private Law at the University of Salerno 

1 G. ALPA, La codificazione del diritto dei consumatori. Aspetti di diritto comparato, , (The codification of consumers’ rights. 

Aspects of comparative law) in Nuova giur. civ. comm., p. 246.



- article 32 of the Constitution, that sets out the right to health; 

- article 41 of the Constitution that restricts the freedom of economic 

enterprise whenever it may damage safety and be detrimental to social 

purposes. 

Furthermore, the 2005 Italian “Consumer Code”, adopted with legislative 

decree no.206, 6 September 2005, (a reconsolidation of the Consumer laws in 

force) 2 introduced a list of consumer rights, defined as “fundamental” (article 

2, paragraph 2). The adjective fundamental, is clear, it cannot be taken to mean 

constitutional. From the moment that a law has the force of ordinary law- as in 

the case of the Consumer Code- the rights cannot be taken to a higher level. 

For this reason, a law that may violate the fundamental rights therein set out 

cannot, in itself, be considered unlawful for breaking a constitutional law, but 

must be shown to be contrary to the constitutional principles cited above 3 . 

2. International and supranational rules 

The European Union Charter of Fundamental Rights, among other rights of 

the person, explicitly guarantees the consumer “a high level of protection” 

(article II-98): this law is directly binding also for national judicial systems. 

The amount of European law on consumer matters is quite considerable. 

Since 2005, the laws implementing consumer protection directives have been 

mostly absorbed into the aforementioned Consumer Code. This is true, for 

example, of the EC directive 2005/29 concerning comparative advertising and 

misleading advertising (presently article 18 et seq. Consumer Code); the EC 

2 For further information see P. STANZIONE, G. SCIANCALEPORE (editors), Commentario al codice del consumo: 

inquadramento sistematico e prassi applicativa,(Comments on the Consumer Code: systematic classification and procedural 

application) Milan, 2006; G. ALPA, L. ROSSI CARLEO (editors), Codice del Consumo. Commentario, (The Consumer 

Code. A commentary) Naples, 2005; G. VETTORI (editor), Codice del Consumo. Commentario, (The Consumer Code. A 

commentary) Padua, 2007; M . FRANZONI (editor), Codice Ipertestuale del Consumo, (The consumers’ hypertext code) 

Turin, 2008. 

3 G. SCIANCALEPORE, Comments on articles 1-4, in P. STANZIONE, G. SCIANCALEPORE (editors), Commentario al 

codice del consumo: inquadramento sistematico e prassi applicativa, ,(Comments on the Consumer Code: systematic classification 

and procedural application) cit., p.15.

Bruno Meoli 

Consumer Protection 

directive 1985/375, concerning the responsibility for damaged goods 

(presently article 114 et seq. Consumer Code); the EC directive 1985/577 on 

consumer protection in contracts made outside commercial premises 

(presently article 45 et seq. Consumer Code); the EC directive 1990/314 on 

travel, holidays and “all inclusive” packages (presently article 83 et seq. Cons. 

Code.); the EC directive 1997/7 on the protection of consumers with regard 

to distance contracts (presently article 50 et seq. Cons. Code). In addition, one 

must mention EC directive 1987/102 on consumer credit , amended by EC 

directive 1990/88 and EC 1998/7 and implemented in Italy under Legislative 

Decree 385/1993 (called The Consolidated law on Banking) and Legislative 

Decree no.63 of 25 February 2000 and the following Treasury Ministry decree 

of 6 May 2000; on this subject, reference should be made to the subsequent 

adoption of EC directive 2008/48 of 23 April 2008, on the further 

harmonisation of laws and regulations concerning consumer credit, that 

repealed the previous 1987/102/EEC, and the modifications that will come 

into force only after 12 May 2010, before which time it should be accepted by 

Italian law 4 . 

In the electronic commerce sector, it is worth mentioning the EC Directive 

2000/31, implemented in Italy under Legislative Decree no.70/2003, and EC 

Directive 2002/22, concerning universal service and user rights in networks 

and electronic communication services, implemented under Legislative 

Decree 259/03 (Electronic Communications Code). In addition, other 

Community laws are the regulation 2006/2004 on Consumer Protection 

Cooperation, and EC 2004/805, which established the European 

Enforcement Order on unchallenged claims. 

Furthermore, relevant to this question is law 2001/44, concerning the rules of 

jurisdiction, recognition and execution of judgements in civil and commercial 

4 Cf. G. PIGNATARO, Il credito al consumo, (Consumer Credit) in P. STANZIONE, A. MUSIO (editors), La tutela del 

consumatore, (Consumer Protection) in Trattato di Diritto Privato by M. BESSONE, vol. XXX, Turin, 2009, p. 211 et 

seq.



matters, as well as the Rome Convention of 1980 on the law applicable to 

contractual obligations, to be dealt with in more detail later. 

II. JURISDICTION AND JUDGMENT ENFORCEMENT 

3. Does your legal system contain specific provisions on jurisdiction 

regarded to international consumer’s transactions? 

Notwithstanding the considerable number of Italian laws on the subject of 

Consumer affairs, the laws that define the meaning of “consumer” mainly 

contain the same idea: the consumer, is always defined as an “individual that 

has non-related dealings with an entrepreneurial, commercial, craft or trade 

business” (cf., article 3, paragraph 1, subparagraph a, Legislative Decree 

no.206/2005) 5 

Italian law uses the two different terms “user” and “saver” according to the 

field of application of the particular law: nevertheless, it always refers to the 

weaker party in a business relationship caused by the disparity of information 

disclosed or the economic power held by the stronger party. 

Despite the use of different terms, therefore, within the scope of the law they 

are practically identical 6 . 

The Ordinary Courts consider that a consumer is “a tradesman or 

businessman who concludes a contract that is not part of his own profession 

as it is for his counterpart”. According to this interpretation, the classification 

of consumer depends on the purpose of the purchase: for example, if an 

estate agent buys a computer with the intention of using it in his office or a 

lawyer employs a courier to deliver a letter directly to a client, they are classed 

as consumers rather than professionals, as these deals are outside the scope of 

5 Cf. U. COREA, Sulla nozione di «consumatore»: il problema dei contratti stipulati a scopi professionali, ( The concept of 

“consumer”: problems arising from professional contracts) in Giust. civ., 1999, p. 15; A. GRATANI, La nozione di 

«consumatore» nella convenzione di Bruxelles, in Dir. comun., 1997, p. 511. 

6 On this point, see V. ZENO-ZENCOVICH, M.C. PAGLIETTI, Verso un «diritto processuale dei consumatori?», 

(Towards a ? in Nuova giur. civ. comm., p. 217; G. ALPA, Quando il segno diventa comando: la 

«trasparenza» dei contratti bancari, assicurativi e dell’intermediazione finanziaria, (When the indication becomes a command: 

«transparency» in banking, insurance and financial intermediary contracts) in Riv. trim. dir. proc. civ., 2003, p. 463.

Bruno Meoli 


their professions, while they are at the same time connected to them. (cf. Trib. 

Rome 20 October 1999; Trib. Lucca 4 July 2000) 

Legal case law, however, is of a different opinion, considering a “professional” 

to be an individual, either physical or legal, public or private, who make deals 

within the remit of his business or trade or an aim connected to that business, 

while a “consumer” is the physical contracting party that wishes to satisfy a 

need of everyday life not connected to his field of work. (cf. of many, Cass. 

Civ. 11 January 2001, no. 314; Cass. Civ., 25 July 2001, no. 10127; Cass. Civ., 

10.7.2008, no. 18863). The “physicality” of the consumer, and the need for 

the “private” nature of the deal, therefore, identify the imperative terms of the 

definition 7 . 

A plenary session of the Court of Cassation 8 , for example, in a dispute 

between an Italian doctor and a Spanish company, publishers of a European 

directory of professional and commercial information, denied application of 

the law as consumer, asserting that “based on the binding law of the 

European Court of Justice – a consumer has to be someone who undertakes a 

deal for motives of everyday life outside the scope of their own business or 

trade”. 

The definition of the meaning of “consumer” is, naturally, important in the 

application of the laws of protection. 

7 For further information on the terms “consumer” and “professional”, cf. L. GATT, Ambito soggettivo di 

applicazione della disciplina. Il consumatore e il professionista,(Fields of application of the law. The consumer and the 

professional) in Commentario al capo XV bis del Codice civile dei contratti con il consumatore (articles 1469 bis -1469 sexies), 

edited by M.C. BIANCA, F.D. BUSNELLI, Padua, 1999, p. 161 et seq; G. CHINÈ, Uso ed abuso della nozione di 

consumatore nel Codice del Consumo, (The use and abuse of the concept of consumer in the Consumer Code) in Corr. merito, 

2006, p. 431; ID., Il consumatore,(The consumer) in Trattato di diritto privato europeo, edited by N. LIPARI, Milan, 

2002, p. 443 et seq; CHINÈ-ALPA, Consumatore (protezione del) nel diritto civile, (Consumer protection in Civil law) 

in Dig. Civ., XV, App., Turin, 1997, p. 548; E. GABRIELLI, Sulla nozione di consumatore,(On the concept of the 

consumer) in Riv. trim. dir. proc. civ., 2003, n. 4, p. 1149;R. CLARIZIA, La nozione di consumatore nel Codice del Consumo 

e con riguardo ai contratti di credito al consumo, (The concept of the consumer in the Consumer Code and with regard to 

consumer credit contracts) in Dir. internet, 2006, p. 357. 

8 Plenary session of the Court of Cassation, 20 March 2008 , no. 7444.



Jurisdiction in International consumer contracts 

On the subject of jurisdiction in international disputes, a fundamental Italian 

law is article 3 of law no. 218 of 31 May 1995, which states “ Italian 

jurisdiction exists when the respondent lives or is resident in Italy or has a 

legally authorised representative in accordance with article 77 of the civil 

procedure code, and in other cases provided for in law” (paragraph 1). 

However, this law does not concern all those disputes that, due to subject or 

nature of the interested party, fall within the specific field of application of 

other laws. 

As far as consumer contracts within the European Union are concerned, in 

virtue of the rejection of paragraph 2 of the aforementioned article 3 of the 

law 1995/218, reference must be made to Council law 2001/44/EEC of 22 

December 2000 (Brussels I ), in force since 1 March 2002, containing the 

present pertinent laws. 

Particularly, law no.44/2001 introduced a number of modifications in relation 

to consumers, in order to strengthen protection, also in the case of electronic 

commerce 9 . 

According to the general rule established in the law, the court authorised to 

judge on disputes between contractual parties is identified according to the 

home of the respondent (The King‟s court), notwithstanding their nationality 

(article 2 law). To determine whether a person is domiciled in the country in 

which the proceedings take place, the judge applies national law (article 59 

law). The Court of Cassation 10 has stated that, on applying law 44/2001, the 

consumer‟s home is the place where they live when the proceedings are 

initiated, but not if a move proves fictitious or repeated, to the point that it 

9 C. FONTANA, La circolazione delle decisioni in materia civile e commerciale: dalla convenzione di Bruxelles al regolamento 

comunitario, (The circulation of decisions in civil and commercial matters: from the Brussels convention to community reglation) in 

Riv. trim. dir. proc. civ., 2003, 1, p. 263. 

10 Cass. civ., ord. 26 September 2008, n. 24257. For a comment see F. AGNINO, Consumatore e competenza per 

territorio: si rafforza la tutela nei confronti del professionista, (The consumer and territorial authority: reinforcing protection 

against the professional) in Corr. giur., 2009, p. 799.

Bruno Meoli 


could reasonably believed that its purpose was solely to initiate those 

proceedings. 

While making general rules, the regulation also contains a number of 

dispensations (listed in article 5 of the law) in favour of the weaker parties in 

the contract: and explicitly in favour of an individual who signs an insurance 

policy (articles 8-14), of a consumer (articles 15-17), of a salaried worker 

(articles 18-21). In particular, in the case of a contract made with a consumer, 

the authorised court is established in favour of the consumer according to the 

following criteria: if the action is filed by the consumer against the other party 

they can chose an authorised court outside those in the Member State in 

which they live or from where they come; if, however, a company acts against 

a consumer, the authorised court has to be in the State where 

the respondent lives. 

The aim of the law is to make the legal procedure easier for the individual 

who is regarded as the weaker party, avoiding an experience in a foreign court, 

in a foreign language and, perhaps, 

bearing considerable costs. 

These dispensations prevent the application of the other criteria provided for 

by article 3, law no. 218/1995, but not other laws more favourable to the 

consumer. In particular, those that can be applied are article 7 of the said law 

about lis pendens and international prejudiciality; article 11 about the 

objection of lack of jurisdiction; article 4 para.1, on the acceptance of Italian 

jurisdiction; and finally, article 10 on jurisdiction in provisional matters 11 . 

The criteria introduced in favour of the consumer, however, apply only when 

certain conditions are met, listed in article 15 of the law: 

11 M.A. LUPOI, I criteri del regolamento CE n. 44/2001 richiamati dall’art. 3, comma 2, l. n. 218: II) la giurisdizione 

«protetta»,(The criteria of the EC regulation 2001/44 found in article 3, paragraph 2, law no.218: II the «protected» 

juridiction) in M.A. LUPOI, E. VULLO, M.G. CIVININI, PAOLO PASQUALIS, Giurisdizione italiana. Efficacia di 

sentenze e atti stranieri,(Italian jurisdiction. The effectiveness of foreign sentences and actions) Naples, 2007, p. 142.



a) When the contract concerns the hire purchase of moveable material goods, 

a loan with repayment instalments or other credit schemes, connected with 

financing the sale of such goods. 

b) When a professional carries out his business in the Member State where the 

consumer lives or carries out an activity directed , by whatever means, towards 

that state, even if not exclusively towards that state. 

An activity is classed as “directed” towards a State when the information 

about the product on offer or proposed contract has been intentionally 

transmitted by the professional: the law therefore does not apply when a 

consumer buys a product, for example, while travelling 12 ,, or when the 

consumer himself has contacted the foreign supplier. 

On the other hand, if the foreign professional has a subsidiary in Italy, the law 

on protection should be applied “directly and without deference to article 3, 

paragraph 2, law no.218” 13 

This law excludes, however, its application on transport contracts, unless they 

fall within the larger field of “all inclusive” 14 travel. This phrase is intended to 

mean all the tourist packages that offer clients transport and lodging for a 

lump sum payment (cf. article 2, legislative decree no.111, 17 March 1995, 

implemented under Directive 1990/314/EC, now replaced by article 84, 

Consumer Code). 

With respect to the law laid down by the Brussels Convention, the place 

where the consumer carries out the actions preceding the conclusion of the 

12 M.A. LUPOI, I criteri del regolamento CE n.44/2001, cit., p.158; F. RAGNO, Il foro del consumatore: dalla 

Convenzione di Bruxelles del 1968 al Regolamento CE n. 44/2001, in Contr.imp./Eu., p. 276. 

13 see, M.A. LUPOI, I criteri del Regolamento CE, cit., p. 158. 

14 For examples of the application of the law in question by the Italian Ordinary courts, see: Trib. Rome, 30 

September 2002, in Riv. int. priv. proc., 2003, p. 184, which recognised in a consumer contract, and, thus, 

subject to article 15 of the regulation, the acceptance in Italy of obligations issued by a foreign State; as well as 

Trib. Padua, sub district Este, 10 January 2006, in Giur. it., 2006, p. 95, with notes by Ferrari, L’interpretazione 

autonoma del Regolamento Ce 44/2001 e, in particolare, del concetto di «luogo di adempimento dell’obbligazione» di cui all’art. 

5, n. 1, lett. b.).

Bruno Meoli 


contract is irrelevant 15 , with the consequence that even if the dealings took 

place outside the European Union the consumer may still claim the right of 

jurisdiction; a situation that has important consequences for the improvement 

of regulations covering online contracts: in fact, in these types of contract it is 

difficult to establish the place from where the consumer gained access to the 

Internet. 

The above rules can be departed from by means of an agreement made by the 

parties (article 17 2001/44) but only when certain conditions have been met: 

Firstly, that the said agreement, to be admissible, must be subsequent to the 

initiation of dispute: in this way, the weaker party, prompted by the initiation 

of proceedings, can co-ordinate his own interests with full knowledge of the 

risks to which he is exposed and the advantages he may gain. 

Secondly, (number 2, article 17) the law establishes that, regardless of when 

the agreement has been made, it is effective if it allows the consumer to bring 

proceedings in other courts other than those already referred to in article 16, 

paragraph 1. 

The latter condition is valid if the parties- professional and consumer- at the 

time of concluding the contract both live or are habitually resident in the same 

Member State and decide to officially authorize the judges of that State to deal 

with any disputes: however, only if the law does not prohibit such agreements. 

This last condition is set in place to safeguard the professional rather than the 

consumer. The reason is that there is a need to avoid a contract, regulated by 

internal law, becoming “international” owing to the transfer of the consumer 

to another State, forcing the professional to start legal proceedings before a 

foreign judge. 

With regard to the departure from the rules that establish jurisdictional 

authority in consumer contracts, the Italian Court of Cassation 16 has inferred 

15 A criterion provided for by article 13, § 3 lett. b), Conv. Bruxelles. 

16 On the last point, see Cass. civ., 26 September 2008, n. 24262. According to the plenary seeion of the 

Court of Cassation 1 October 2003, n. 14699, article 1469-bis consumer code, would have introduced a new



that in contracts between consumers and professionals clauses that establish 

an authorized court in a different place from that of residence of the 

consumer are presumed unlawful, unless proved otherwise. On this subject 

the Court of Cassation has more than once declared that “if the professional, 

called before the consumer‟s court, objects to the territorial authority of the 

judge on the grounds of validity, owing to the existence in a contract, 

concluded using recognised regulatory forms, of a clause of departure from 

that authority, the onus is on the professional to give positive proof that such 

a clause has been properly negotiated- regarding individuality, seriousness and 

effectiveness- in order to allow the exclusion of the application of the rights 

of the consumer laid out in the Consumer Code”.(cf. article 1469-bis et seq. 

Consumer Code) 

Finally, with regard to disputes involving, as respondent, individuals living 

outside the European Union, the general rule at article 3, law 218/1995 

applies 17 . 

Rules for online contracts 

As referred to above, Law 2001/44 introduced important consumer rights, 

particularly in situations regarding transactions using communication 

technology. 

These transactions are becoming more popular and require special regulations 

due to the particular characteristics of the technology used. 

In fact, it is difficult, with Internet contracts, to identify the place where the 

contract is signed and the person with whom the contract is made. So there is 

a risk that a professional may conceal the true nature of the contract and 

and further idea of exclusive authority, still however, waivable, see D.&F., 2004, p. 818, with notes by 

TALLERO; Giur. it., 2004, p. 729, with notes by D‟ASCOLA; G. LIPARI, Il «foro del consumatore» al vaglio delle 

sezioni unite. Dimensione intertemporale e portata precettiva dell'art. 1469-bis, comma 3, n. 19, c.c., in Giust. civ., 2004, I, p. 

2693; R. CONTI, Le Sezioni Unite risolvono il contrasto sul foro del consumatore. Per ora una vittoria per la weaker party, 

in Corr. giur., 2003, p. 1440. 

17 In this sense, M.A. LUPOI, I criteri del regolamento CE n. 44/2001, cit., p. 5.

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thereby evade the rights of the consumer, particularly with regard to the right 

to withdraw from the contract or the obligation to provide pre-contractual 

information 18 . 

For this reason, even if online contract law often closely resembles that of 

offline contracts, it also provides extra safeguards. 

The aforementioned law 2001/44, as already stated, provides for the 

jurisdiction of the Consumer‟s national law when the contract has been 

concluded with a professional that has “directed” his business towards that 

State: thus, it permits the extension of the law of “protective” jurisdiction to 

include electronic negotiations, particularly when the professional‟s business is 

directed towards the consumer‟s State in order to encourage the consumer to 

conclude a distance contract, regardless of means (mainly online, but also via 

fax, mail or telephone); for the application of the law, what counts is not the 

place where the contract is concluded but the place where the business, 

considered entirely, is carried out 19 . 

Giving a precise meaning to the idea of “directed business activity” is difficult 

in relation to contacts concluded on the Internet. Certainly, the situation is 

simpler in those cases where the site appears addressed to an Italian market, 

by means of the presence of clear indications like the language or currency 

used, or the address of a help centre 20 ; however, the actual address of the site 

18 G.M. RICCIO, Concorrenza sleale e tutela dei consumatori nelle reti telematiche, (Unfair competition and consumer protection 

in communication technology) in Dir. informatica, 2006, 3, p. 314. 

19 F. RAGNO, Il foro del consumatore: dalla Convenzione di Bruxelles del 1968 al Regolamento CE n. 44/2001, in Contr. 

imp./Eu., 2009, n. 1, p. 272 ss.; V. SIANI, l Regolamento CE n. 44/2001 sulla competenza giurisdizionale e 

sull’esecuzione delle sentenze. Parte prima: la cooperazione giudiziaria in materia civile e commerciale: dalla Convenzione di 

Bruxelles al regolamento Ce 44/2001, in Diritto comunitario e degli scambi internazionali, 2003, fasc. 3, p. 451; U. 

DRAETTA, Internet e commercio elettronico nel diritto internazionale dei privati, Milano, II ed., 2005, pp. 203 ss.; 

CALVO, CARANCA, GONZALEZ, Giurisdizione e legge applicabile ai contratti business to consumer su internet nel 

diritto europeo, in Contratto e impresa/Europa, 2005, p.489 ss.; G.I. FIORELLI, Il contratto elettronico tra armonizzazione 

materiale e diritto internazionale privato, Padova 2006, p.198; S. SAVINI, Delocalizzazione del contratto stipulato su 

Internet. Problemi di giurisdizione e legge applicabile, in Contratto e impresa/Europa, 2002, p. 1131 ss.; A. ZANOBETTI, 

Legge applicabile al commercio elettronico: strumenti internazionali e comunitari, in Dir. U.E., 2000, p. 661 ss. 

20 M.A. LUPOI, op.cit., p.160.



is not always helpful because most commercial sites use a generic domain 

“.com” that does not illustrate any particular provenance 21 . 

It is noteworthy that both the European Commission and Council have jointly 

adopted an opinion clarifying that the mere appearance of a website cannot be 

deemed as “directed business activity” 22 . A helpful interpretive solution could 

be similar to that adopted by the United States, where a distinction is made 

between active websites, online shops with the purpose of selling products, and 

passive websites , whose purpose is essentially informative and by which the 

professional does not directly encourage the consumer to conclude a contract: 

it is possible to apply a special law in favour of the consumer to the former 

sites while the latter sites follow the general rules 23 . 

Important legal provisions in the context of online consumer affairs are 

contained also in legislative decree no. 190, 19 August 2005, implemented 

under EC Directive 2002/65, which deals with financial service distance 

contracts, concluded by non-professional savers: the Italian law adopts EC 

Directive 2002/65 in full. 

5. Does your legal system contain specific provisions or is there a 

practice for the recognition and enforcement of foreign judgments in 

consumer matters? 

Law no. 218/1995 that, as already stated, reformed the regulation of private 

international law, also brought about some changes to the civil procedure 

code. In particular, within its scope, it deferred the implementation of foreign 

sentences to regulation 2001/44 (article 3 of the law) 

The regulation fixes the principle of “reciprocal trust” in the judicial systems 

of Member States and, therefore, sentences issued in another State must be 

recognised in full, without recognition procedures, as long as no objectives are 

21 G.I. FIORELLI, op.cit. p.174. 

22 In theory, the binding nature of this is doubted: cf. P. BERTOLI, La disciplina della giurisdizione civile nel 

regolamento comunitario n. 44/2001, in Riv. dir. int. priv. e proc., 2002, p.647. 

23 M.A. LUPOI, ult. op. cit., p.161.

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raised (consideration no.16 of the regulation). Furthermore, the procedure to 

implement the decision must be as swift as possible and, to this end, the 

relative passage should be almost automatic, following formal controls on the 

documentation involved.(consideration no. 17 of the regulation) . 

In the implementation of the said principles, the recognition of the foreign 

sentence is subject only to the procedure laid out in article 53 of the law, that 

being the applicant‟s presentation of a copy of the decision which is to be 

recognised or carried out. In this phase there is no provision for examining 

the conformity to fundamental law, nor to its validity regarding the 

requirements prescribed by article 35 of the regulation, unless the other party 

wishes to present observations. The foreign sentence is therefore presumed 

valid until proved to lack the “formal presuppositions of character and 

provenance, relating to the subject of the ruling, and accuracy of the 

documents.” 24 

The recognition of the foreign sentence is not subject to the judgement of 

internal law if no objections are proposed by the individual, who has the 

discretional right to object or not to the decision of the foreign authority 25 . 

The rationale is confirmed in the decisions of the Ordinary Courts according 

to which: “article 36 of law 2001/44/EC sets out to ensure the effectiveness 

of the decisions adopted by the Member States, including provisions of a 

precautionary and provisional nature specifically regulated by article 31, and to 

establish these decisions in a way that the general effectiveness of the decision 

cannot be invalidated by the intervention of a judge of another Member State. 

Thus the purpose is to exclude the re-examination of the same matter by a 

foreign judge” 26 

24 T. BALLARINO, Uniformità e riconoscimento. Vecchi problemi e nuove tendenze della cooperazione giudiziaria nella 

comunità europea, (Uniformity and recognition. Old problems and new trends of judicial cooperation in the European 

Community) in Riv. dir. int., 2006, p. 7. 

25 T. BALLARINO, Uniformità e riconoscimento. Vecchi problemi e nuove tendenze della cooperazione giudiziaria nella 

comunità europea, in Riv. dir. int., 2006, p. 7. 

26 Trib. Venice, 28 August 2003, in Riv. dir. internaz. privato e proc., 2004, p. 688.



The search for a situation in which all Member States demonstrate full trust in 

the decisions made by foreign judicial authorities is also laid out in law EC 

2004/805 which established the European Executive Title for Uncontested 

Credits. The law put in force a system in which not only is recognition 

automatic, guaranteeing European citizens the right of enforcement, but also 

implementation of the free circulation of the title, making the law effective. 

The purpose of this ruling is to favour titles relating to modest sized causes; 

those that, normally, involve consumers 27 . 

III. CHOICE OF LAW 

7. Does your legal system contain specific rules on choice of law in 

international consumers’ transactions? 

The Rome Convention, when dealing with contractual obligations 

(consequently absorbed into European Parliament and Council Regulation 

2008/593), establishes the general principle of freedom for either party to 

choose the law applicable to a contract (article 3). However, in the subsequent 

article 5 (art.6 of the Regulation) the Convention states that, whenever one of 

the parties can be defined as a “consumer”, the right to choose the applicable 

law is restricted by the need to not adversely affect the protection guaranteed 

to the same consumer by the national law of the State of residence, to be 

considered as a basic right. 

This restriction operates provided there is a link between the drawing up of 

the contract and the consumer‟s country of habitual residence. In particular, 

the Convention considers such a link valid in the following situations: when 

the contract settlement has been preceded by a specific offer or advertisement 

in the consumer‟s country and that the said consumer has concluded the 

contract within the same country; when the other party or his representative 

27 European Council Conclusions, Tampere (15/16-X-1999), paragraph 34.

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has received the order within the consumer‟s own country; or, lastly, when the 

contract deals with the sale of goods and the consumer leaves his own country 

for a foreign country where he makes a contract, providing the journey has 

been organised by the seller as a sales incentive. 

Therefore, the interpretation of this law should be that the clause by which 

the parties choose the applicable law is ineffective when it adversely affects 

the consumer‟s domain: consequently, if the choice of a different law from 

that of consumer‟s resident country is not only favourable to their interests, 

but also confers further powers, it must still be regarded as perfectly valid. 

In any case, in want of a valid or effective electio legis, the consumer contract is 

subject “to the law of the country where the consumer is habitually resident”: 

even if it may not be the most favourable 28 , it will still be the most familiar. 

IV. ALTERNATIVE DISPUTE RESOLUTION (ADR) 

9. Are international consumers disputes capable of being settled by 

arbitration? 

In Italian law arbitration is considered a private procedure but- in certain 

situations- “jurisdictional” 

Many factors support this statement: for example, Constitutional Court 

sentence no. 2001/376, legitimizes the arbitrators‟ right to raise constitutional 

questions; the arbitrators can be objected to in the same way as an ordinary 

judge; they must guarantee cross-examination in the opening phase of the 

proceedings and in case discussion; the arbitration judgement has the same 

effectiveness as law (article 824-bis civil procedure code) 29 ; the arbitrators 

have the power to send the parties certified copies of their decision (article 

824, paragraph 2, civil procedure code). From this we can see distinct 

28 R. BARATTA, La Convenzione di Roma del 19 giugno 1980 sulla legge applicabile alle obbligazioni contrattuali, (The 

Rome Convention of 19 June 1980 on the laws applicable to contractual obligations) in Dir. Un. Eu., 1997, p. 638. 

29 Cf. F. GALGANO, Il lodo arbitrale vale, dunque, come sentenza, ( The arbitration award has the value of a sentence) in 

Contratto e impr., 2006, p. 297.



differences between arbitration, as set out in the civil procedure code, and the 

methods of ADR: the win-lose system of arbitration is contrary to the win-win 

system of ADR, wishing to satisfy, as much as possible, all the interests 

involved in the conflict, and not carry out a role of decision-making as such. 

Up until 2006, procedural code had specific laws for international arbitration. 

This was, however, an internal arbitration governed by a particular procedure 

that was applied when one of the parties lived or had their office abroad, or if 

one important part of the contractual services had to be carried out abroad. 

According to article 834 of the Civil Procedure Code (now repealed) the 

parties enjoyed the freedom to make an agreement between themselves as to 

the applicable laws, that could, thus, either be foreign laws or specifically 

stated by the same parties. In most opinion, this law could not have affected 

the 1980 Rome Convention on laws applicable to contractual obligations, so 

in a consumer dispute, the choice of applicable law had to be carried out with 

respect to the rulings stated above. 

The current civil procedure code provides a single arbitration procedure, 

applied also when one of the parties lives abroad or an important part of the 

services must be carried out in a foreign country. 

In the case of consumer disputes of an international nature both the Rome 

Convention and the EC regulation that recognised it are applied. 30 

The relationship with consumers is, in principle, beneficial and, thus, they can 

be part of the arbitration process. 

Yet, in applying European law, the Consumer Code considers unlawful, until 

proved otherwise, clauses that depart from judicial authority, as these could 

prevent arbitrational authority, not in a general sense but in a real sense, if not 

considered unlawful. 

30 G. GAJA, L’arbitrato in materia internazionale tra la legge n. 25/1994 e la riforma del diritto internazionale privato, 

(Arbitration in International matters in the light of the law no.25/1994 and the reform of private international law) in 

Riv.Arb. 1997, p. 487. A. BRIGUGLIO, La nuova disciplina dell’arbitrato internazionale (The new International arbitration 

law) (l. 5 gennaio 1994, n. 25) in Giust. Civ., 1994, II, p. 83.

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Thus, European Law (Centro Movil sentence) takes the directive on unlawful 

clauses to mean that a judge, in court, can uphold the invalidity of the 

unlawful arbitration clause even if, for any reason, the internal procedures 

prevent this decision. In this case the principle of autonomous Community 

procedure is exceptionally departed from owing to the application of 

consumer rights. This, however, is not interpreted in Italy in the sense that the 

clause in consumer contracts must be considered invalid due to being contrary 

to fundamental law. Thus, it is not always regarded in this way, but only when 

its negotiation is considered unlawful. 

Italian law, however, in the wake of Community instructions, upholds the out- 

of-court solutions to disputes, also those concerning consumers 31 . 

Presently, in consumer affairs, there is a spread of out-of-court methods of 

dispute management, in the wake of Community law and internal legislation. 

For example, law no. 580/93 on the reform of the Chambers of Commerce 

altered their authority, giving them a role in applying ADR and providing for 

the appointment of arbitrational and conciliatory courts for the resolution of 

disputes between companies, and companies and consumers: the ratio legis 

regards, as is often the case, the need to reduce the costs and settlement times 

of disputes. Law no. 1993/580 can be considered the beginning of a trend 

aimed at finding in conciliation, rather than arbitration, the suitable apparatus 

for conflict solution for certain elements of the relationship between 

companies and consumers 32 : so subsequently came the fundamental law no. 

1998/281 on consumer rights regulation, that allowed nationally recognised 

consumer associations to begin, before turning to a judge, the conciliation 

procedure with the relevant Chamber of Commerce; the Consumer Code 

(Leg. Decree no. 206/2005), that provides specific regulations on conciliation, 

31 Cf. M.F. GHIRGA, Conciliazione e mediazione alla luce della proposta di direttiva europea, in Riv. dir. proc., 2006, p. 

463 et seq. 

32 For all the differences between arbitration and conciliation, cf. F.P. LUISO, La conciliazione nel quadro della 

tutela dei diritti, in www.judicium.it.



giving authorization to those consumer associations listed in the official 

registers at Ministry of Economic Development and Ministry of Justice 

(article 137). 

10. Does your legal system provide for any alternative method for 

dispute settlement applicable to international consumers’ transactions? 

Which kind of alternative method? 

It is generally considered that consumer rights cannot be limited only to a 

substantial level 33 , to be effective, must extend to procedural level. From this 

point of view the alternative methods of dispute settlement become 

important. They also grant numerous economic advantages, although this is 

not the principal aim of consumer protection 34 . 

The laws with which European law is pressing the Member States to regulate 

in this area are salient. In Italy, as seen above, the use of the Chambers of 

Commerce is that mainly preferred in the settlement of disputes. The law on 

this point, however, is quite scant and only harmonised for the first time with 

the Consumer Code (articles 136-141); it is hoped that it can be completed by 

the implementation of EC Directive 2008/52 35 on ADR applied to cross- 

border disputes. The law should be recognised by 2011 and in Italy the 

government has been granted the powers provided for in the 2008 EC law. 

33 V. ZENO-ZENCOVICH, M.C.PAGLIETTI, Verso un «diritto processuale dei consumatori»?, in Nuova giur. civ. comm., 

2009, p. 220. 

34 For the idea that alternative conciliation systems may be less contentious, see, among others: V. DENTI, I 

procedimenti non giudiziali di conciliazione come istituzioni alternative, in Riv. dir. proc., 1980, p. 410. On the difference 

between types of conciliation see, R. CAPONI, La conciliazione stragiudiziale come metodo di ADR (“Alternative 

Dispute Resolution”), in Foro it., 5, 2003, 165 et seq. 

35 C. VACCÀ talks about missed opportunity in La direttiva sulla conciliazione: un’occasione mancata?, in Contr., 2008, 

pp. 857 et seq. The directive, in fact, could have harmonised the laws in different Member States, but it 

limited its scope to cross-border disputes. So, consideration no.8 states that while the law applies to crossborder 

disputes “nothing should prevent Member States from applying these regulations also to internal 

conciliation procedures”. 

In general, considering the limits of ADR, cf., E. SILVESTRINI, Osservazioni in tema di strumenti alternativi per la 

risoluzione delle controversie, in AA. VV., La risoluzione stragiudiziale delle controversie e il ruolo dell’avvocatura (edited by 

G. ALPA, R. DANOVI), Milan, 2004, 156.

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Preliminarily, it seems worthwhile to make some observations on the 

terminology used in this field, highlighting the differences between European 

and internal law. 

The European Directive uses the word “mediation ” to indicate both the 

technique of mediation and, presumably 36 , the other types of ADR: this can 

be deduced from article 3 that defines mediation as “a structured process, 

however referred to, whereby two or more parties in a dispute, attempt by 

themselves, on a voluntary basis, to reach an agreement on the settlement of 

their dispute with the assistance of a mediator”. Mediation conducted by a 

judge can also be included in this idea, as long as he is not playing a judicial 

role. 

In Italian law, the term that translates the concept more correctly is, however, 

“concilazione” or “conciliation” which is considered as “an activity aimed at 

promoting the amicable settlement of a dispute, not only regardless of the 

individual carrying it out (that could be a magistrate or arbitrator employed to 

settle the case, or an individual outside the judicial system without legal 

powers), but also regardless of the actual method used to fulfil this purpose.” 

37 

Consideration no. 11 of EC Directive 2008/52 excludes its application to 

“consumer complaints”, but theory 38 asserts that the exclusion does not 

regard the entire field of consumer protection, but only those methods of 

conciliation that do not enter in the context of the same directive, those being 

class actions and arbitration. According to another interpretation 39 , however, 

consumer complaints are excluded from the application of the law because 

36 Così, E.M. APPIANO, I sistemi A.D.R. nell’ottica del legislatore comunitario, in Contratto e impresa/Eur., I-2009, p. 

60. 

37 E.M. APPIANO, op. ult. cit., p. 62. 

38 E.M. APPIANO, op. ult. cit , p. 77. 

39 E. MINERVINI, La disciplina comunitaria della conciliazione in materia civile e commerciale. La direttiva europea sulla 

conciliazione in materia civile e commerciale, in Contratto e impresa/Eur., 2009, p. 46.



they lack the necessity of being of a third party nature, being conducted not 

by a third party but by the company itself involved in the dispute. 

The application of the directive includes disputes arising in civil and 

commercial matters 40 , as long as the parties are free to decide for themselves, 

and cross-border disputes. 

Cross-border disputes is taken to mean disputes that involve individuals of 

whom at least one is domiciled or habitually resident in a Member State other 

than that of any other party. (article 2, paragraph 1 of the directive) 

This qualifying circumstance must exist at the time in which the parties, after 

the dispute has begun, agree to use mediation; or when a court orders the 

recourse to mediation or invites the parties involved in the dispute to turn to 

mediation whenever they see fit; or, lastly, when the obligation to turn to 

mediation arises from a national law. 

The directive says nothing about the country where the mediation must take 

place and, in fact, in the case of a voluntary choice, it could be handled in a 

different state from that of the parties involved. 

However, on the subject of consumer contracts, this possibility must honour 

internal Italian law, that restricts the court to one in the consumer‟s own 

country (cf. article 33, Consumer Code), even when the dispute is dealt with 

by a conciliator. 

The directive, however, does not resolve a number of doubts concerning the 

procedure of ADR. 

A certainty is the fact that any clause which prevents the consumer from 

starting legal proceedings to protect his own rights is considered unlawful: 

such an instruction would be completely contrary to article 24 of the 

Constitution, that endorses the inviolable right to defend one‟s rights. The 

Consumer Code, among others, also invalidates any clause that “excludes or 

40 It asserts that the matters in question are not perfectly integrated in the directive and regulation 2001/44, 

E. M. APPIANO, I sistemi A.D.R., cit., p. 81. For a review of the “clouded and confused” concepts of civil and 

commercial matters, , see. E. MINERVINI, La disciplina comunitaria, cit., p. 42.

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limits the actions of the consumer towards the professional […] in the case of 

complete lack of fulfilment or part fulfilment on the part of the professional”, 

disregarding the circumstance that the clause may or may not be subject to 

negotiation by the parties (and so contrary to article 33 of the Consumer 

Code, which establishes in a list of clauses the relative reasons for irregularity); 

in article 141, para 5 of the Consumer Code states “ a consumer can never be 

deprived of the right to turn to the law whatever the outcome of a out-of- 

court settlement”. 

It should be added that the same directive 2008/52, in consideration no. 18, 

encourages States to observe the principles contained in the Recommendation 

of 4 April 2001, no. 310, with which the EU established the minimum criteria 

in relation to extrajudicial bodies appointed to resolve consumer disputes by 

mutual consent. This Recommendation establishes that the parties in the 

conflict must be informed of the right to refuse recourse to an alternative 

procedure, as well as the right to withdraw at any time and initiate legal 

proceedings if they are not content with the progress or the workings of the 

procedure (article D, paragraph 1, subparagraph a). 

Laws which explicitly provide for the possibility to choose ADR are 

considered in the following contexts: overbooking (article 16, EC ruling no.253, 

11 February 2000); cross-border bank transfers (article 8, legislative decree 

no.253, 28 July 2000); supplying tourist services (article 4, paragraph 3, 

Legislative decree no.135, 29 March 2001) 

On this point it is also interesting to note the attention given in the Italian 

Consumer Code to Online Disputes Resolution (ODR) 41 

41 C. CAMARDI, Metodi «alternativi» di soluzione delle controversie: diritto, spazio e tempo nell’ambiente delle tecnologie 

informatiche, (“Alternative” methods of dispute solution: law, space and time in information technology) in Eur. e dir. priv., 

2004, p. 549; AA.VV., Metodi on line di risoluzione delle controversie: arbitrato telematico e ODR.(Online methods of 

dispute resolution: telecommunications arbitration and ODR) Venice Convention papers 10 October 2003, edited by C. 

CAMARDI, Cedam, 2006; A. MARANGON, I sistemi on line di risoluzione delle controversie, in Dir. inf., 2006, p. 375; 

F. BUFFA, Sistemi alternativi di risoluzione delle controversie, in F. BILOTTA (a cura di), Internet, 2004, p. 512; E.M. 

TRIPODI, I sistemi di conciliazione on line: dalla soluzione delle controversie alla gestione dei rapporti tra imprese e tra imprese 

e consumatori, in Dir. dell’internet, 2005, p. 205; in generale, B.S. SELDEN, Profili processuali del commercio elettronico, in 

Riv. Trim. dir. e proc. civ., 2002, p. 73, with particular reference to the non-waivable laws in consumer affairs.



In Italy this has been applied by the Milan Chamber of Commerce, a public 

body that represents the interests of businesses and encourages the 

development of the local economy. 

Since July 2001 the organisation has offered a service called “RisolviOnline”, 

with the aim of resolving disputes arising in relation to electronic commerce 

and in which both consumers and businesses may be involved: thus, contracts 

of the nature “B2B” (business to business), “B2C” (business to consumer), 

and “C2C” (consumer to consumer). 

The service is regulated by the principles established in the European 

Commission Recommendation, already referred to above: they place 

importance on the voluntary nature of the procedure, the ease of access, the 

efficiency of the procedure, the independence and impartiality, transparency 

and confidentiality 42 . The service is carried out entirely by means of 

communication tools, such as email, chat rooms and videoconferencing. 

12. Is there in your legal system any procedural tool (e.g., class actions) 

particularly available for international consumer disputes? 

Taken from American law (not without noticeable changes as to the 

conditions of class participation, the nature and effects of the judge‟s 

sentence, as well as the type of damages) class action 43 was introduced into 

Italian law with law no. 224, 24 December 2008 (Finance Law 2008): in fact, it 

is the new article 140-bis of the Consumer Code that fixes the character of 

compensatory group actions 44 . 

The prudence with which the new law has been accepted in Italy can be 

gauged by the tortuous path of its implementation: firstly, it was to be 

42 C. ROSSELLO, La governance di internet tra diritto statuale, autodisciplina, soft law e lex mercatoria, (The contrl of the 

internet among statute law, selfgovernance, soft law and market law) in Dir. comm. int., 2006, p. 48. 

43 C. ROSSELLO, La governance di internet tra diritto statuale, autodisciplina, soft law e lex mercatoria, in Dir. comm. int., 

2006, p. 48. 

44 Cfr. S. CHIARLONI, Il nuovo art. 140 bis del codice del consumo: azione di classe o azione collettiva?, (The new article 

140-bis of the Consumer Code: class actions or group actions?) in Giur. it., 2008, p. 1842 .

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enforced on 29 June 2008, then postponed to 1 January 2009 and then again 

to 2010. In this time the original text has been amended and now the law has 

been made non-retroactive. 

This new law intervenes directly by legitimatio ad agendum, allowing a group of 

consumers, through a body that represents them in law (class representatives), 

to obtain damages following the verification of an infringement of their rights, 

without needing to face the extremely problematic nature of individual 

disputes: these problems are particularly felt in the case of disputes of a 

modest sum (small claims), which can be precisely those of consumers. 

In any case, the law in article 140-bis presents characteristics that bring it 

closer to a group action rather than a class action in a strict sense of the 

phrase, although the concept of class action can itself be interpreted in 

different ways 45 . To benefit from a judicial decision, in fact, it is necessary to 

have agreed to the process and to attend proceedings, as opposed to other 

systems, for example that of the United States, in which anyone who claims to 

have been damaged in the same way can be part of the “class”, without 

necessarily taking part in the process 46 . 

The action has the aim of “verifying the right to damages and the 

reimbursement of sums owing to single consumers or users” (article 140-bis, 

paragraph 1, second part of the Consumer Code) 

The authorization to start an action lies with the consumer associations 

represented at a national level and registered with the Ministry of Economic 

45 A. GIUSSANI, Situazioni soggettive superindividuali, azioni collettive e class actions: contributo alla teoria generale, 

Report to the Higher Council of Magistrature on “Nuove forme di tutela processuale e nuove legittimazioni 

ad agire” – Rome, 27-28 March 2008; S. PALADINO, Azioni seriali e tutela degli interessi collettivi: “class action 

all’italiana”, in Federalismi.it, 2008, n. 14, p. 4. 

46 A. SATURNO, Le associazioni dei consumatori e le azioni collettive, in P. STANZIONE, A. MUSIO (editors), 

La tutela del consumatore, in Trattato di Diritto Privato by M. BESSONE, vol. XXX, Torino, 2009, p. 671 ss.; M. 

BOVE, Azione collettiva: una soluzione all’italiana lontana dalle esperienze straniere più mature,(Collective action: an Italian 

solution far from the more mature foreign experiences) in Guida dir., n. 4, 2008, p. 11; R. MARENGO, Garanzie processuali 

e tutela dei consumatori, Torino, 2007, p. 61 ss., 205 ss., 259 ss.; C. CONSOLO-D. RIZZARDO, Class actions “fuori 

dagli USA”: qualcosa si muove anche alle nostre (ex-) frontiere settentrionali almeno quanto al “case management”, (Class 

actions outside the USA: some changes in our northern neighbours as regards “case management”)in Int’l lis, 2006, I, p. 38 

ss..



Development, providing the associations possess certain prerequisites, such as 

effective representation in the country. These are the same associations 

authorized to protect the collective interests of consumers in both a 

prohibitive and corrective manner: the list of these associations is periodically 

sent to the European Commission to allow the associations to enter those 

bodies permitted to perform the same duties at a European level (article 137, 

paragraph 6 of the Consumer Code), allowing them to act in foreign courts in 

cross-border actions brought owing to infringements within the European 

Union. 

In fact, the introduction of this law 47 will certainly extend the consumer‟s 

right, already found in article 37 of the Consumer Code (and previously in the 

amended 1469-sexies of the Civil Code), to place an action for an injunction 

against an unlawful clause. This will then be extended to include consumers‟ 

and users‟ associations, establishing a synergy between the two modes: if the 

action for an injunction intervenes at a preliminary stage and prevents the 

continued used of unlawful contractual forms 48 , also by a foreign 

professional 49 , the action for damages ensues ex post , granting compensation 

for damages caused. 50 

V. LEGAL SCHOLARSHIP AND LEGAL EDUCATION 

14. Please include a short bibliography of items concerning private 

international law on consumers’ protection in your legal system (listed 

by authors in alphabetic order). 

ALPA G., La codificazione del diritto dei consumatori. Aspetti di diritto comparato, (The 

codification of consumers’ rights. Aspects of comparative law) in Nuova giur. civ. 

comm, 6, 2009. 

47 Cfr. G. ALPA, L’azione collettiva risarcitoria. Alcune osservazioni di diritto sostanziale,(Collective actions for damages. 

Some observations of substantial law) in Contratti, 2008, p. 547 ss. 

48 Cfr. G. ALPA, L’azione collettiva risarcitoria. Alcune osservazioni di diritto sostanziale, in Contratti, 2008, p. 547 ss. 

49 Cfr. G. ALPA, L’azione collettiva risarcitoria. Alcune osservazioni di diritto sostanziale, in Contratti, 2008, p. 547 ss. 

50 Cfr. G. ALPA, L’azione collettiva risarcitoria. Alcune osservazioni di diritto sostanziale, in Contratti, 2008, p. 547 ss.

Bruno Meoli 


ALPA G., In tema di azioni collettive, (On group actions) in Rass. forense, fasc. 4/2006, 

p. 1845. 

ALPA G., Introduzione al diritto dei consumatori, (An introduction to consumers’ rights) 

Roma-Bari, 2006. 

BASTIANON S., La tutela del consumatore alla luce delle nuove norme legislative e 

regolamentari in materia di pratiche commerciali sleali, (Consumer protection in the light of 

new laws and regulations on unfair business practices) in Resp. civ. e prev., 2008, 7-8, p. 

1460. 

CAVAZZONI G., DI NELLA L., MEZZASOMA L., RIZZO V. (editors), Il diritto dei 

consumi: realtà e prospettive, (Consumer law: Fact and fiction), Napoli, 2008; 

APPIANO E.M., I sistemi A.D.R. nell’ottica del legislatore comunitario, (ADR in the 

view of Community legislation) in Contratto e impresa/ Eur., 1, 2009, p. 59; 

LAMORGESE A., Lineamenti della tutela processuale dei consumatori nell’Unione 

Europea, (Features of consumers’ procedural protection in the European Union) in Giust. 

civ., 3, 2008, Pt. 2, p. 159; 

PAGANO E., La materia civile con implicazioni transfrontaliere e le competenze 

comunitarie di diritto internazionale privato, (Civil matters with cross-border implications 

and community authority in private international law) in Il Diritto dell’Unione Europea, 

1, 2008, p. 127; 

ROSSOLILLO G., I mezzi alternativi di risoluzione delle controversie (ADR) tra diritto 

comunitario e diritto internazionale, (Alternative dispute resolution methods (ADR) in 

community and international law) in Il Diritto dell’Unione Europea, 2, 2008, p. 670; 

SANGIOVANNI V., L’informazione del consumatore nella commercializzazione a distanza 

di servizi finanziari,(Consumer information in the commercialization of distance financial 

services) in Diritto dell‟internet, 4, 2008, p. 399; 

SATURNO A., Le associazioni dei consumatori e le azioni collettive, Consumer associations 

and group actions) in P. STANZIONE, A. MUSIO (a cura di), La tutela del 

consumatore, (Consumer protection) p. 671 et seq., in Trattato di Diritto Privato diretto 

da M. BESSONE, vol. XXX, Torino, 2009. 

SCIANCALEPORE G., Clausole vessatorie, tutele individuali e collettive in dispute 

transfrontaliere, in Europa e diritto privato, (Unlawful clauses, individual and collective 

rights in cross-border disputes, in European and internal law) 1999, 4, p. 1007.



SCUFFI M., Tutela antitrust del consumatore e azione di classe, (Consumer and 

group action antitrust protection) in Il Diritto industriale, 4, 2009; 

VILLA G., Il danno risarcibile nell’azione collettiva, (Group actions for damages) in 

Danno e responsabilità, 1, 2009, p. 11; 

ZENCOVICH Z., PAGLIETTI M.C., Verso un ? 

Towards a ? (pt. 1), in Nuova giur. civ. comm., 5, 

2009, p. 216; 

ZENCOVICH Z., PAGLIETTI M.C., Verso un ? 

Towards a ? (pt. 2), in Nuova giur. civ. comm., 6, 

2009, p. 251. 

15. Please include a list of the relevant case law concerning 

international consumers’ protection (listed by dates in chronological 

order). 

European Court of Justice, Sess. I, 03/09/2009, sentence C- 489/07 

European Court of Justice, Sess. IV, 04/06/2009, sentence C- 243/08 

European Court of Justice, sess. IV, 04/06/2009, sentence C- 243/08 



European Court of Justice, Sess. IV, 16/10/2008, sentence C- 298/07 

Civil Court of Cassation 10/07/2008, n. 18863 

Civil Court of Cassation 21/05/ 2008, n. 13051 


Constitutional Court, 20/11, 2002, n. 469 


Civil Court of Cassation, 17/03/1965, n. 451 

16. Is there, in your country (or in your organization), any specific 

education program (in Universities or other institutions) totally or 

mostly devoted to international consumers’ transactions? 

There are no education programs that deal explicitly with international 

consumers‟ transactions. However, the following postgraduate courses 

contain some study in this field: 

Consumer Rights - University of Rome “Tor Vergata” 

European Rights and Economy – Inter-university Consortium “For.Com. – 

Communications program”, Rome;

Bruno Meoli 


Economics and Anti Money Laundering Legislation – University of Macerata; 

Business Law - Alma Laboris Rome; 

International Business Law - LUISS Business School Rome; 

Law Studies – Business Economics „E-Commerce‟ – University of Camerino; 

Ethics and Social Responsibility in Businesses and Professions – University of 

Insubria; 

Business Law - Alma Laboris Milano; 

Business Law - Alma Laboris Salerno; 

Legal Business Consultant - LUISS Business School Roma.

International Academy of Comparative Law 

18th International Congress of Comparative Law 

Topic II.B. Private International Law : Recent private international law codifications 

National Report for Switzerland 

The Swiss Codification of Private International Law of 1987 

I. Introduction 

Andrea Bonomi * 

The Swiss Federal Act on Private International Law (hereinafter the “Private International 

Law Act” or “PILA”) was enacted on 18 December 1987 and entered into force on 1 January 

1989. 

It replaced a previous codification, i.e., the Federal Act on the Private Law Conditions of 

Domiciliaries and Sojourners of 1891 (the “NAG”), the principal purpose of which was to 

regulate internal conflicts (between “cantons”), at a time when, prior to the adoption of the 

Civil Code and of the Code of Obligations, private law had not yet been unified at the federal 

level. This being said, the provisions of the NAG were, however, applicable by analogy to 

international conflicts, but this statute was not very modern and did not cover all fields of PIL. 

Prior to the adoption of the PILA, some important areas (in particular contracts and torts) 

were only regulated by case law. 

At the time of its adoption, the PILA was a very modern and advanced PIL codification. This 

Act was regarded as a legislative model by legal scholars around the world and it has inspired 

several national legislators, both within and outside of Europe. 

Two general features of the PILA must be emphasized here. 

The first feature is that the PILA constitutes a very complete and detailed piece of legislation, 

covering all main areas of PIL. Contrary to other codifications of PIL, the Swiss Act not only 

regulates choice-of-law issues, but also jurisdiction, recognition and enforcement of foreign 

decisions, international bankruptcy and international arbitration. Compared to other 

codifications, it is quite detailed and includes more than 200 articles. While there are only few 

provisions regulating general choice-of-law issues (Arts 13 to 19 PILA), the regulation of the 

single specific areas is often very detailed. Thus, the PILA includes specific provisions 

dealing with particular issues that are rarely found in other national codifications of PIL, such 

as change of name (Arts 38 and 39 PILA), pactes successoraux and mutual wills (Art. 95 

PILA), retention of title (Arts 102(2) and 103 PILA), unjust enrichment (Arts 127 and 128 

PILA), specific types of contracts (Arts 118 to 122 PILA) and torts (Arts 134 to 139 PILA), 

company transfers (Arts 161 to 164 PILA). 

* Professor of Private International Law and Comparative Law, University of Lausanne ; Director of the Centre 

of Comparative, European and International Law of the Faculty of Law and Criminal Justice, University of 

Lausanne. 

1

The second general feature that deserves attention is that the PILA often includes reference to 

international PIL conventions, in particular to several Hague Conventions. 

The reference sometimes has no other purpose than to draw attention to the fact that a certain 

area is covered by an international convention and that the latter takes priority over the PILA 

provisions, according to the general principles of Swiss law. This is, for instance, the case for 

Art. 118 PILA, which simply states that international contracts of sale are subject to the 

Hague Convention of 15 June 1955: since this convention is applicable erga omnes, Art. 118 

PILA does not add anything to its own scope of application. 

More often, the reference in the PILA is used as a means of extending the application of a 

convention to situations that are outside of its material or personal scope. Thus, Art. 93 PILA 

not only refers to the Hague Convention on the Conflicts of Laws relating to the Form of 

Testamentary Dispositions of 5 October 1961 for the form of wills, but also extends the 

material scope of application of this convention’s rules (“by analogy”) to the form of other 

mortis causa dispositions, in particular pactes successoraux (Art. 93(2) PILA). 

More recently, the reference to an international convention has been also used with the 

purpose of anticipating the applicability of the convention that is not yet in force. Thus, the 

reference to the Hague Convention to the Law Applicable to Certain Rights in Respect of 

Securities Held with an Intermediary of 5 July 2006 included in the new Art. 108c PILA, 

makes this treaty applicable in Switzerland as of the 1 January 2010, although it is not yet in 

force in international law. 1 

II. Legal Certainty and Flexibility 

1. The escape clause and its operation 

The PILA contains a general escape clause at Art. 15, which, in some circumstances, permits 

a judge to set aside the law designated by the Act: 

The law designated by this Statute is, by way of exception, not applicable if under 

all the circumstances, the case has only a slight connection with the designated law, 

and has a much closer connection with another law. 

At the time of the enactment of the PILA, this kind of escape clause was quite rare in national 

PIL codifications. Art. 15 PILA was, thus, regarded by legal scholars as one of the most 

innovative features of the Swiss codification. 

According to the view of a majority of legal scholars, 2 the main purpose of Art. 15 PILA is to 

achieve “conflict justice”, by selecting the jurisdiction to which the situation is most closely 

connected. There is a wide-reaching opinion that this provision does not prescribe the 

application of a “better law” and should not be invoked for selecting the applicable law 

because of its material content. However, this opinion is not entirely confirmed by case law; 

1 See Message relatif à la Loi fédérale sur les titres intermédiés et à la Convention de La Haye sur les titres 

intermédiés du 15 novembre 2006, Feuille Fédérale 2006, p. 8817, n° 2.2.1.5.1. 

2 See A. BUCHER, La clause d’exception dans le contexte de la partie générale de la LDIP, in A. BONOMI & 

E. CASHIN RITAINE (eds), Vingt ans LDIP, Zurich: 2009, 59, 60; A. VON OVERBECK, The Fate of Two 

Remarkable Provisions of the Swiss Statute on Private International Law, Yearbook of Private International 

Law 1999, 119, 127. 

2

as a matter of fact, the provision has sometimes been used by courts (at least in an implicit 

way) to favor a certain material result. 

The escape clause of Art. 15 PILA cannot be used when the applicable law has been chosen 

by the parties (Art. 15(2) PILA). The same is also true when – notwithstanding the absence of 

a formal choice of law – the applicable law is de facto determined by the parties’ will. This is 

the case, for instance, in company law, where the founders of the company can freely decide 

in which country the company will be incorporated and thus determine the law applicable to 

it; 3 therefore, Swiss courts have refused to set aside the law of the country of incorporation on 

the basis of Art. 15 PILA, even if the company has only a slight connection to that country. 4 

According to a scholar’s opinion, the application of Art. 15(1) is only possible to correct such 

choice-of-law rules that are based on the principle of the closest connection (principle of 

proximity). 5 Further to this view, Art. 15 is not applicable in those areas of law, where choiceof-law 

rules are based on material considerations (see infra, point IV). 

The innovative qualities of Art. 15 PILA, although very interesting from a theoretical point of 

view, have not proved very successful in practice. Since the entry into force of the PILA, the 

escape clause has been applied by the Swiss Federal Court in only three cases, all of which 

involve similar facts. All three of them were divorce cases. In all three instances, Art. 15 

PILA was used to set aside a foreign law, which would have been applicable as the common 

national law of the parties under Art. 61(2) PILA, 6 and to replace it by Swiss law. In all three 

cases, material considerations largely influenced the final decision, although these were not 

always openly spelled out as the ratio decidendi of the case. 

The first case was decided in 1992. 7 The facts are as follows. A German national had married 

a Canadian woman in Quebec in 1960. In 1962, the spouses became naturalized US citizens in 

Texas, where they lived. After moving to various (11!) countries, where they lived for 

relatively short periods of time, the spouses settled in Switzerland in 1979. Five years later, 

they separated and the wife moved to Germany. Her German husband filed for divorce before 

the Swiss courts in 1986. The Court of first instance held that the law, which would have been 

applicable as the law of the common nationality of the parties under Art. 61(2) PILA, i.e., 

Texas law, had a far too remote connection to the case. The Court decided therefore to apply 

Swiss law, holding that the case had a much closer connection to Switzerland. The Federal 

Court upheld the decision. 

As it was rightly pointed out by a commentator, 8 the only truly controversial issue in this case 

was (not divorce, but) the entitlement of the wife to post-divorce maintenance, 9 which would 

have been very difficult to obtain under Texas law. Nevertheless, the ruling of the Federal 

Court is based on a formal comparison of the connections existing with Texas and 

3 

Under Art. 154 PILA, companies are subject to the law of the place of incorporation. 

4 

ATF 117 II 494; 128 III 346. 

5 

BUCHER (n. 2), 61-62; contra VON OVERBECK (n. 2), 130. 

6 

According to Art. 61(2) PILA, if the spouses have a common foreign nationality and only one of them is 

domiciled in Switzerland, the law of the State of their common nationality is applicable to divorce and legal 

separation. 

7 

ATF 118 II 79. 

8 

BUCHER (n. 2), 65. 

9 

According to Art. 8 of the Hague Convention on the Law Applicable to Maintenance Obligations of 2 

October 1973, maintenance obligations between divorced spouses are governed by the law applied to the 

divorce. 

3

Switzerland, without any reference to the material content of the conflicting laws, nor to the 

respective interests of the States involved. We do not think, therefore, that this decision can be 

regarded as the expression of a result-oriented (or interested-oriented) choice-of-law 

methodology. 

More recently, there have been two other cases concerning the application of the escape 

clause of Art. 15 PILA, and they both dealt with the same issue: the law applicable to a 

divorced spouse’s entitlement to a part of the capital accumulated by the other spouse during 

his/her professional activity under a mandatory pension plan. According to Swiss law, a part 

of this capital – deposited with and administered by a social security institution – must be 

divided between the ex-spouses in the case of divorce (this is considered as an ancillary effect 

of divorce). 10 This rule does not necessarily have an equivalent counterpart in other foreign 

systems of law (e.g., no such rule exists in the laws of France, Italy, Spain, Portugal). 

According to a scholarly view, the spouse’s claim to a part of the pension capital should be 

governed by the law of the State, under which the social security institution is organized. 11 

However, in neither of the following two cases did the Federal Court follow this approach. It 

held, instead, that it is the law applicable to divorce that governs the post-divorce division of 

social security assets. 12 This solution raises serious problems when Swiss courts are seized of 

a divorce case between a foreign national, who is (or has been) employed in Switzerland, and 

his/her spouse, who shares the same nationality but is domiciled abroad (this is a quite 

common situation in practice in an immigration country, such as Switzerland). In such a case, 

the foreign law of the common nationality of the spouses is applicable to divorce under Art. 

61(2) PILA. 13 Consequently, whenever this law ignores the division of the pension capital, the 

claim of the spouses should be rejected. In the two cases discussed below, the Swiss Federal 

Court has applied Art. 15 PILA to correct this result. 

In the one case, 14 a French woman claimed – after obtaining a divorce in France – the division 

of the social security capital, which her former French spouse had accumulated during several 

years of work in Switzerland. Since both spouses had been domiciled in France for a duration 

of ten years before the divorce, the law applicable to the ancillary effects of divorce ought to 

have been French law. 15 The Federal Court determined, however, that Swiss law was 

manifestly more closely connected to the issue, and allowed the claim. The decision was 

certainly justified according to substantive law considerations, but it did not correspond to the 

traditional understanding of Art. 15 PILA. Some of the reasons given by the court were based 

on geographical links (e.g., the long professional activity of the husband in Switzerland), but 

others were clearly based on material considerations of substantive fairness (e.g., the fact that 

the marriage had been very long and that the spouses had not organized their pension by way 

of a private insurance or through the accumulation of property). Moreover, since the domicile 

of the former spouses was in France, the connection to that country could hardly be regarded 

as too weak in the particular circumstances. 

10 

Art. 122 of the Swiss Civil Code. 

11 

A. BUCHER, Le couple en droit international privé, Basle: Helbing & Lichtenhahn 2004, 144. 

12 

ATF 131 III 289. According to Art. 63(2) PILA, ancillary effects of a divorce are governed by the law 

applicable to the divorce, subject to various exceptions. 

13 

See n. 6. 

14 

ATF 131 III 289. 

15 

See n. 12. The law applicable to divorce also governs ancillary measures that are required in a proceeding for 

supplement or modification of a divorce decree (Art. 64(2) PILA). 

4

This unorthodox use of the escape clause has been confirmed by the Federal Court in a more 

recent decision as well. 16 In this case, two Spanish nationals were finalizing the division of 

social security capital after obtaining divorce. The common domicile of the spouses during 

the marriage had always been in Spain, where the wife was resident. The husband had worked 

for a duration of 30 years in Switzerland, where he had a residence. Notwithstanding the 

absence of any connection between the marriage and Switzerland, the Federal Court 

considered that a closer connection with this country existed with respect to the issue of the 

division of the social security capital, which the husband had accumulated in Switzerland. 

Once again, material considerations of substantive fairness (as opposed to the search for 

“proximity”) were decisive. 

2. No further exception to the choice-of-law rules 

Since the entry into force of the PILA, Swiss courts have not created further exceptions to the 

application of the choice-of-law rules in the Act. This would have been superfluous because 

of the large and general scope of application of Art. 15 PILA. 

III. Issue-by-Issue Choice and Dépeçage 

The general approach in the PILA is to adopt a single choice-of-law rule for the law 

applicable to the entire cause of action and thus limit dépeçage. 

1. Contracts, torts, successions 

This is, in particular, true for contracts. Arts. 116 et seq. PILA determine the law applicable to 

the contractual relationship as a whole, without distinguishing between issues of validity and 

performance. This “unitary” solution was originally adopted by case law prior to the entry 

into force of the PILA. It dates back to the well-known Chevalley case of 12 February 1952 17 , 

in which the Federal Court ruled that the whole contract was governed by one law (that of the 

place of the “characteristic performance”), thus rejecting the dépeçage that was previously 

practiced between the formation and the effects of the contract. 18 

The “unitary” approach is also followed in the field of torts, where all the constitutive 

elements of a tort, as well as its effects are, in principle, regulated by a single law (Art. 142 

PILA). 19 The same is also true for successions, where the applicable law (normally that of the 

deceased’s last domicile) 20 not only applies to issues of devolution (both intestate succession 

and wills), but also to a large extent to the administration of the estate (Art. 92 PILA). 21 

16 

Decision of 8.3.2007, 5C.297/2006, RSDIE 2007, 322. 

17 

ATF 78 II 74. 

18 

The formation of the contract was governed by the law of the place of the contract, the performance by that 

of the place of performance. Such « grand scission » (« grande coupure ») of the contract originated also, in 

some cases, a « small scission » (« petite coupure ») between the single obligations arising out of the 

contract, if these had to be performed in different places, see ATF 62 II 125; 64 II 349; 73 II 204; 76 II 36. 

19 

Art. 142(1) PILA: « The law governing the tort determines in particular the capacity to commit a tort, the 

conditions and the scope of liability, as well as the liable person ». 

20 

See Arts. 90(1) and 91(1) PILA. 

21 

Art. 92 PILA: « The law governing the succession determines which assets are included in the estate and who 

is entitled to it and to what extent, who is liable for the debts, which remedies are availble and under which 

conditions ». 

5

Despite the above, in each of these areas, specific questions can be subject to specific choiceof-law 

of law rules, which can lead to the application of a law different from that regulating 

the relationship as a whole. This limited dépeçage is favored by the fact that the PILA 

contains, as mentioned earlier, quite detailed choice-of-law rules concerning very specific 

issues. 

Thus, with respect to contracts, a separate law can be applicable not only to the parties’ 

capacity and to the form of the contract (Art. 124 PILA), but also to the effects of silence of 

an offeree (Art. 123 PILA), to the practical modalities of performance and inspection of the 

goods (Art. 125 PILA), and to issues related to agency (Art. 126). With respect to torts, a 

limited dépeçage may result from the consideration of a security or conduct rule of the place 

of conduct (Art. 142(2) PILA). Similarly, in the field of successions, the form of wills and 

other mortis causa dispositions is governed by the Hague Convention of 5 October 1961 (Art. 

93 PILA) and the procedural aspects of the administration of estates are subject to the law of 

the forum (Art. 92(2) PILA). Furthermore, the validity and certain effects of pactes 

successoraux and mutual wills are regulated by a law determined at the time of the execution 

of such acts (Art. 95 PILA), 22 which may be different from the law applicable to the 

succession as a whole. 

2. Family law 

In the area of family law, depeçage is accepted on a broader scale, since different laws may be 

applicable to different aspects of the same family relationship. This is, however, not a 

particular feature of the PILA, since similar distinctions are generally found in most PIL 

codifications. 

Thus, the choice-of-law rules concerning the celebration of a marriage in Switzerland and the 

recognition of foreign marriages (Arts. 44 and 45 PILA) are different from those relating to 

the general effects of marriage (Arts. 48 and 49 PILA) and to matrimonial property (Arts. 52- 

56 PILA). Special choice-of-law rules apply to divorce and legal separation (Art. 61 PILA) 

and to their accessory effects, such as maintenance obligations (Arts. 63 and 64 PILA; Hague 

Convention on the Law Applicable to Maintenance Obligations of 2 October 1973). The same 

is also true for registered partnerships, since the choice-of-law rules concerning marriage 

apply by analogy to such relationships (Art. 65a PILA). 

Different laws may also be applicable to the establishment of parent-child relationships, on 

one hand (Arts. 68, 69, 72), and the effects of such relationships, on the other hand (Arts 82 

and 85, Hague Convention on the Protection of Children of 19 October 1996). 23 

3. Voluntary dépeçage 

In certain areas, dépeçage can also be the effect of the parties’ choice of the applicable law. 

22 It can be the law of the de cuius domicile or the law chosen at the time of execution of the act. 

23 According to the recently modified Art. 85(1) PILA, the law applicable to measures for the protection of 

children is governed by the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement 

and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 

October 1996. 

6

In the area of contracts, notwithstanding the silence of Art. 116 PILA, it is generally admitted 

that the parties can make a partial choice: i.e., select the law applicable to only certain aspects 

of their relationship. 24 

In the field of successions, Arts. 87 and 91(2) PILA expressly allow a Swiss citizen domiciled 

abroad to submit his/her estate, or the part thereof situated in Switzerland, to Swiss law (and 

to the jurisdiction of Swiss courts). 25 In the latter case, the result will be a scission of the 

estate. The partial choice is, however, not available to a foreigner domiciled in Switzerland 

(Art. 90(2) PILA); in this case, the choice of the deceased national law is possible only for the 

estate as a whole. 26 Voluntary dépeçage is also excluded with respect to matrimonial property 

(Art. 52 PILA). 27 

4. Third party rights 

In the case of a parties’ choice, dépeçage can also be the involuntary consequence of the fact 

that, in general, the choice of law made by the parties cannot affect third party rights. This is 

true for matrimonial property (Art. 57 PILA) and for the loss and acquisition of property 

rights in movables (Art. 104(2) PILA). In these cases, the “external relations” with third 

parties will be governed by a law determined through an “objective” choice-of-law rule, 

which can be different from the law chosen by the parties to be applicable to their “internal 

relations”. 

A similar distinction between “internal” and “external” relations is also typical of the law of 

agency (Art. 126 PILA), where such differentiation is independent of party choice. 

5. Mandatory rules 

A limited dépeçage can also result from the application of overriding mandatory provisions of 

the forum or of a third State (Arts 18 and 19 PILA; see infra, point VII). 

6. Escape clause 

Last but not least, the case law concerning Art. 15 PILA shows that dépeçage can also be the 

effect of the application of the escape clause. In some of the above-mentioned cases (see 

supra, point II), the Federal Court used the escape clause to separate the issue of a divorced 

spouse’s entitlement to part of the pension capital accumulated by the other spouse, and to 

submit it to a different law than that applicable to the divorce. 

24 See F. VISCHER, L. HUBER & D. OSER, Internationales Vertragsrecht, 2 nd ed., Berne : Stämpfli 2000, n° 93; 

M. KELLER & J. KREN KOSTKIEWICZ, in: Zürcher Kommentar zum IPRG, 2 nd ed., Zurich : Schulthess 2004, 

Art. 116 n° 81; B. DUTOIT, Droit international privé suisse. Commentaire de la loi fédérale du 18 décembre 

1987, 4 th ed., Basle : Helbing & Lichtenhahn 2005, Art. 116, n° 4; M. AMSTUTZ et al., in Basler Kommentar, 

Internationales Privatrecht, 2 e éd., Basle : Helbing & Lichtenhahn 2007, Art. 116, n° 13; A. BUCHER & A. 

BONOMI, Droit international privé, 2 nd ed., Basle : Helbing & Lichtenhahn 2004, 259. 

25 Choice of law (so-called professio juris) and choice of forum (so-called professio fori) are in principle linked 

in the case of Arts. 87 and 91(2) PILA, the former implying the latter, subject to a contrary will of the de 

cuius. 

26 Although Art. 90(2) PILA is silent on this point, all commentators agree that it should be interpreted as 

excluding the partial choice, because the latter contradicts the principle of unity of the estate on which the 

choice-of-law rules of the PILA in the field of successions are based: see DUTOIT (n. 24), Art. 90 n° 6. 

27 DUTOIT (n. 24), Art. 52 n° 2. 

7

IV. State-Selection and Conflict Justice versus Content-Oriented Law-Selection and 

Material Justice 

1. Jurisdiction selecting rules 

The overall approach of the PILA is based on jurisdiction-selecting rules, tending to “conflict 

justice”. This means that the choice-of-law rules of the PILA are normally neutral: i.e., they 

are not designed to further a specific substantive law result. The choice-of-law process is 

conducted in a rather mechanical way, without considering the content of the conflicting laws. 

The designated law is therefore applicable irrespective of its content, with only the limited 

exception of public policy (Art. 17 PILA). 

The existence of the general escape clause of Art. 15 PILA and its wording indirectly confirm 

that most conflict rules of the PILA are designed to select the law to which the relationship is 

most closely connected (principle of proximity). If such purpose is manifestly not attained in a 

particular case, the escape clause can be used by the courts to correct the result and to select a 

different law, which is more closely connected to the case. 

Material considerations are however very important in the PILA. 

2. Abstract consideration of substantive law interests in the choice-of-law rules 

First, one should note that the choice of the connecting factors in the single choice-of-law 

rules is generally based on an abstract appreciation by the legislator of the interests involved 

in each kind of relationship. Therefore, one can say that the content of all choice-of-law rules, 

even those that are jurisdiction-selecting, is fundamentally based on material considerations. 

Thus, the use in several choice-of-law provisions of the PILA (in particular in the field of 

personal status and capacity, family and succession law) of domicile as a connecting factor is 

based, among other considerations, on the assumption that Switzerland, as an immigration 

country, has an interest in the generalized application of its domestic rules to all persons 

domiciled on its territory. At the same time, it also reflects the idea that all Swiss 

domiciliaries (including foreigners) also have an interest in the application of the local law, 

not only because of its proximity, but also because it ensures equality of treatment both, 

among them and with the Swiss citizens living in Switzerland. 

To provide another example, the application to companies of the law of their place of 

incorporation (Art. 154 PILA) reflects the material interest in promoting freedom of 

establishment, even if such connection can favor in some cases the avoidance of local 

mandatory requirements. This explains the Federal Court’s refusal to “correct” that approach 

by using the escape clause or other devices, such as the notion of fraude à la loi or the abuse 

of right. 28 

The material considerations that lie beneath the choice-of-law rules normally reflect the 

policy of the domestic legislation. Thus, the application of the law of the deceased’s last 

domicile to an international estate is a way of ensuring that a single law will govern it, thus 

reducing the (material) difficulties resulting from a scission. This reflects the principle of 

28 ATF 117 II 494. 

8

unity and universality of succession, which inspires domestic legislation in the area of 

successions. 

In all cases mentioned above, material considerations are taken into account in an abstract 

way, but the material content of the conflicting laws does not have a direct influence on the 

choice-of-law process. In other cases, however, the PILA allows a result-oriented 

methodology. 

3. Result-oriented rules 

As a matter of fact, some choice-of-law rules of the PILA are designed to favor a specific 

material result. 

a) Alternative connections 

The most obvious expression of this methodology are rules based on alternative connections, 

often used to uphold the formal or material validity of an act. Art. 124 PILA adopts such a 

technique to uphold the formal validity of a contract. 29 A similar approach is used, in a more 

extreme way, in the Hague Convention on the Form of Testamentary Dipositions of 1961; the 

Swiss legislation has endorsed the treaty’s solution, and has extended it by analogy to the 

formal validity of other mortis causa dispositions such as pactes successoraux (Art. 93(2) 

PILA). Alternative connections are also used in the field of international arbitration to uphold 

the material validity of an arbitration agreement (Art. 178(2) PILA; see infra point XIII(B)). 

b) Subsidiary connections 

A similar technique is based on subsidiary connections, which come into play if (and only if) 

a certain material result cannot be reached under the law designated by the principal 

connection. Thus, the capacity and other material conditions for the celebration of a marriage 

are normally subject to Swiss law (Art. 44(1) PILA); however, the national law of one of the 

future spouses can be applied in subsidiary ways if they are both foreigners and the marriage 

cannot be celebrated under Swiss law (Art. 44(2) PILA). 30 Material considerations also 

inspire the “cascade” system of the Hague Convention on the Law Applicable to Maintenance 

Obligations of 2 October 1973 based on the application of successive subsidiary connecting 

factors (the law of the common nationality of the parties, the lex fori), when the maintenance 

creditor cannot obtain maintenance under the law of his/her habitual residence. This solution 

has also been incorporated by reference in the PILA (Arts 49 and 83 PILA). 

c) Unilateral options 

A different technique, which is also inspired by material considerations, consists in 

recognizing for one of the parties concerned (normally the weaker party) a unilateral option 

among various connecting factors. This right to opt, which is open after the dispute has arisen, 

will normally be used by the person concerned to select the law that is more favorable to 

29 According to Art. 124 PILA, a contract is valid as to its form if it conforms to the law governing the contract 

or to the law of the place where it is concluded. If at the time of contracting, the parties are in different 

countries, the contract is formally valid if it conforms to the law of one of these countries. 

30 This solution is however subject to public policy and mandatory rules of the forum, so its practical interest is 

de facto limited to cases concerning the marriage of minors. This rule could be abrogated in the near future, 

as a result of proposed legislative measures to prevent forced marriages and the marriage of minors. 

9

his/her interests because of its material content. Applications of such technique are to be 

found in the area of tort law. 

Thus, in product liability cases, Art. 135 PILA gives the victim the right to choose between 

(a) the law of the country where the tortfeasor has his/her place of business or his/her habitual 

residence and (b) the law of the country where the product was acquired, unless the tortfeasor 

proves that it was marketed in that country without his/her consent. A similar solution is 

adopted in Art. 138 PILA for cross-border environmental damages (where the victim has the 

choice between the law of the State of the conduct and that of the place of the injury) and in 

Art. 139(1) PILA for violations of personality rights (where the victim has the option among 

three different laws, (a) the law of his/her habitual residence, (b) the law of the country of the 

tortfeasor’s place of business or habitual residence, and (c) the law of the place of the injury, 

provided that the tortfeasor should have expected the injury to occur in that country. 

d) Party autonomy 

More generally, party autonomy can be regarded, to a certain extent, as a device to favor the 

material solutions that correspond better to the interests of the parties involved, subject to 

public policy and “loi de police” (Arts. 17 to 19 PILA). This is particularly true in those areas, 

where the choice of law can be made unilaterally by one person, such as successions and 

trusts. Party autonomy is widely recognized in the PILA (see infra, point XI). 

e) Result-oriented choice by courts 

Contrary to other PIL systems, the PILA does not contain rules allowing the court to select the 

law that favors one of the parties or a certain material result. Nevertheless, the escape clause 

of Art. 15 PILA was sometimes used by courts to favor a certain material result, though it was 

not originally intended to be for that purpose (supra, point II). 

V. Unilateral Rules and Rules of Immediate Application 

Choice-of-law rules of the PILA are generally bilateral, in the sense that they do not only 

determine the reach of Swiss law, but also designate foreign law when forum law is not 

applicable. 

Some of its provisions are drafted as classical bilateral choice-of-law rules. In such cases, the 

choice between the lex fori and foreign law will only depend on a neutral, jurisdictionselecting 

connective factor, such as domicile or habitual residence. Forum law and foreign 

law are placed on an equal footing, and their respective chances of being applied only depend 

on the connecting factor and the circumstances of the case. Examples of this technique can be 

found in the area of family law (e.g., Art. 48(1) PILA: law of the common domicile governs 

the effects of marriage; Art. 54 PILA: law applicable to matrimonial property; Art. 68(1) 

PILA: the law of the country of the habitual residence of the child governs the establishment 

and the contestation of the parent-child relationship) and also for property rights (Arts 99 and 

100 PILA, lex rei sitae), intellectual property rights (Art, 110 PILA, law of the place of 

protection), torts and contracts (see infra, point XII and XIII), companies (Art. 154 PILA: law 

of the place of incorporation). 

In other cases, the application of Swiss and foreign law is regulated in two formally separated 

provisions, but it depends on one and the same connecting factor. Thus, the estate of a person 

10

who died domiciled in Switzerland is governed by Swiss law (Art. 90(1) PILA), whereas the 

estate of a person who died domiciled abroad is governed by the law designated in the PIL 

rules of the country of the deceased’s last domicile (Art. 91(1) PILA). Although this may not 

be immediately clear from a first reading of the law, such provisions are also based on a 

bilateral approach. 

The equality between the lex fori and foreign law is, however, often derogated from, 

particularly in the area of family and successions law. 

In some instances, the law of the forum is designated as applicable, subject to certain 

exceptions. Thus, Swiss law is applicable to divorce, but is replaced by the national law of the 

spouses whenever they have a common nationality and only one of them is domiciled in 

Switzerland (Art. 61(1) and (2) PILA). In other cases, Swiss law is applicable, but a foreign 

law can be invoked to reach a substantive result (e.g., to make the celebration of a marriage 

possible in the absence of certain conditions required by Swiss law, Art. 44(1) and (2) PILA). 

In some cases, Swiss law is exclusively applicable without any alternative. This is for instance 

the case for capacity (Art. 34 PILA) and for the formal validity of a marriage (Art. 44(3) 

PILA). Swiss law is also generally applicable in the exceptional circumstances when Swiss 

courts have jurisdiction based on the nationality of one of the persons concerned because 

proceedings abroad are impossible or highly impractical (e.g., Art. 47 for the effects of 

marriage, Arts 60 and 61(4) PILA for divorce and legal separation, Arts 67 and 76 for the 

establishment of a parent-child relationship and adoption). Swiss law is also applicable in the 

field of successions, where Swiss courts have jurisdiction to regulate the estate of a person 

who died domiciled abroad to the extent that the foreign authorities do not deal with the estate 

(Arts 87(1), 88 and 91(2) PILA). 

In at least one case, Swiss law is applicable as a last resort, in the absence of other relevant 

connecting factors; thus, the Swiss law rules of separation of property during marriage (which 

is, under Swiss law, a conventional régime) is applicable as a legal régime to spouses who 

were never domiciled in the same State and do not have a common nationality (Art. 54(3) 

PILA). 

Finally, it is important to note that the PILA recognizes the concept of “lois de police” / “lois 

d’application immediate”. According to Art. 18 PILA, certain mandatory rules of Swiss law 

are applicable because of their purpose, irrespective of the law designated by the choice-oflaw 

rules of the PILA. Such rules can be regarded as a limited expression of a unilateral 

approach to conflict issues. 

VI. International Uniformity and Protection of National Interests 

No choice-of-law rule of the PILA is specifically based on the protection of “national 

interests”. However, some choice-of-law rules can be regarded as an expression of 

sovereignty or national interests. This is obviously the case with respect to the traditional rule 

submitting immovable property to the lex situs (Art. 99 PILA), coupled with the exclusive 

jurisdiction of local courts (Art. 97 PILA). The application of the law of the country of 

protection to intellectual property rights (Art. 110 PILA) is probably also tainted by national 

interests, as it is confirmed by the existence of exclusive jurisdiction for proceedings relating 

to the registration and the validity of some of these rights (Art. 109 PILA, Art. 16 Lugano 

Convention, Art. 22 of the revised Lugano Convention of 2007). 

11

In some areas, the exclusive application of Swiss law is also designated to promote certain 

domestic values and policies. This is for instance the case for the form of a marriage (Art. 

44(3) PILA); this provision makes clear that Switzerland is not prepared to accept on its 

territory any derogation from the principle that marriage is celebrated by a civil and not by a 

religious authority. 

Public policy and “lois de police” (Arts 17 and 18 PILA) can also be used to the effect of 

protecting national interests or policies. Thus, the federal legislation imposing certain 

restrictions on the acquisition of land by persons domiciled abroad is generally regarded as a 

“lois d’application immediate”, which the courts have to apply irrespective of the law 

governing the contract of sale. 31 

In at least one case, the protection of national values is ensured by the notion of fraude à la 

loi. Thus, the rule excluding the recognition of a marriage celebrated abroad by a Swiss 

national, or by spouses domiciled in Switzerland with the manifest intention of eluding the 

rules of Swiss law on the annulment of marriages (Art. 45(2) PILA), purports to protect 

certain fundamental values of Swiss law on marriage. At the same time, this rule is a means of 

preventing the phenomenon of sham marriages, and therefore reflects a specific domestic 

policy limiting immigration. 

VII. Ordre Public and Mandatory Rules 

1. Ordre public 

The ordre public-exception of Art. 17 PILA is interpreted and applied by the Swiss court in a 

rather restrictive way. This protective mechanism can certainly be applied where the result of 

the application of foreign law is perceived as the violation of human rights or other 

fundamental principles widely recognized in the international community. The principle of 

non-discrimination and the best interest of the child are generally regarded as such; they play 

an important role in the field of international family law. 

On the contrary, important principles of domestic law are not necessarily considered as part of 

the international public policy. Thus, the Federal Court has considered that the rules of Swiss 

successions law providing for a forced share (réserve) of certain close family members (such 

as children, parents and spouses) do not belong to the international ordre public. 32 

The interpretation of public policy is even more restrictive in the field of arbitration. The 

Swiss Federal Court has never set aside an arbitral award because of a violation of public 

policy although awards rendered in Switzerland have often been challenged on this ground. In 

a well-known case, the Federal Court affirmed that the violation of EC antitrust law is not 

grounds for annulment of an arbitration award, since antitrust law does not belong to 

international public policy. Although rendered in a particular framework, this decision clearly 

demonstrates the trend to a restrictive construction of ordre public. 

31 According to Art. 119 PILA, a contract regarding a right to an immovable property is normally subject to the 

law of the situs, but can be submitted to a foreign law by party choice. 

32 ATF 102 II 136, Hirsch c. Cohen. 

12

2. Lois de police 

The PILA also recognizes the concept of “lois de police” / ”lois d’application immediate”, 

i.e., overriding mandatory provisions that must be applied because of their particular purpose, 

without regard to the law applicable under the choice-of-law rules (Art. 18 PILA). The wellknown 

Art. 19 PILA also allows a Swiss court to “take into account” foreign mandatory 

provisions belonging to a law other than that designated by the choice-of law rules, if interests 

that are, according to Swiss legal perspective, legitimate and clearly paramount so require, 

and provided that the case is closely connected to the foreign law in question. 

Swiss courts have made a very limited application of these provisions. The application of 

Swiss mandatory rules has been normally ensured, where necessary, through the public 

policy-clause of Art. 17 PILA. Art. 18 PILA has been held applicable with respect to Art. 2 of 

the Swiss Civil Code (prohibition of the abuse of right). 33 By contrast, the Federal Court has 

denied the quality of lois de police to the following provisions: Art. 263(1) of the Swiss Civil 

Code, providing for a limitation period for a paternity action; 34 Art. 104 of the Swiss Code of 

Obligations, providing the duty to pay interests in the case of delayed payment of a sum of 

money (“intérêts moratoires”); 35 former Art. 513 of the Swiss Code of Obligation, stating the 

unenforceability of gambling debts; 36 the rules of company law permitting, in certain 

circumstances, to “pierce the corporate veil” (“Haftungsdurchgriff”). 37 

Art. 19 PILA has never been applied by the Swiss Federal Court. In some cases, the 

application of this provision has been rejected. In one case, the Federal Court refused to give 

effect to the provisions of § 541 et seq. of the US Bankruptcy Code requiring the payment to 

the trustee of money belonging to the debtor, because the effects of a foreign bankruptcy 

proceedings on assets located in Switzerland are exclusively regulated by Chapter 11 of the 

PILA. 38 In another case, the Federal Court held, with respect of a property claim brought by 

the Indian Union, that there was no reason to give effect, in application of Art. 19 PILA, to 

the mandatory provisions of Indian law providing for the nullity of contracts on cultural 

objects illegally exported from the Indian territory. 39 

VIII. Renvoi 

The issue of renvoi is not dealt with in the PILA in a uniform way. Three different solutions 

may apply, depending on the matter concerned. 

1. General rule 

The general rule is that renvoi is not allowed, unless the law provides otherwise (Art. 14(1) 

PILA). Thus, foreign PIL rules are irrelevant in several important areas, in particular for most 

33 ATF 128 III 201. 

34 ATF 118 II 475. 

35 ATF 125 III 448. 

36 ATF 126 III 534. 

37 ATF 128 III 346. The opposite view was based on the idea that the rules on piercing the corporate veil are an 

expression of the general prohibition of the abuse of rights (Art. 2 Swiss Civil Code): see Federal Court, 

23.4.1992, 5C.255/1990. 

38 ATF 130 III 620. 

39 ATF 131 III 418. 

13

patrimonial matters, such as matrimonial property régimes, maintenance, real property rights, 

contracts, unjust enrichment, torts, and company law. 

2. Reference back with regard to personal and family status 

In matters concerning personal or family status (“état civil”) however, renvoi is accepted 

whenever it leads to the application of Swiss law (Art. 14(2) PILA). Only a reference back to 

Swiss law (“renvoi au 1er degré”, “Rückverweisung”) is relevant, and not a reference onward 

to another foreign system (“renvoi au 2e degree”, “Weiterverweisung”). 

The reason for this solution is essentially practical: in the area of personal and family status, 

the application of foreign law can prove very difficult for public officials who maintain the 

civil registry (“officiers de l’état civil”), and who are normally in charge of such matters. 

Therefore, foreign law has been excluded whenever it refers back to Swiss law, because in 

this case, uniformity is, in any case, difficult to achieve. 

Art. 14(2) PILA does not clarify how to proceed in the case of “double renvoi”, that is, where 

the foreign PIL system designates Swiss law, but at the same time is ready to accept the 

reference resulting from the Swiss choice-of-law rules. In such typical “tennis-play” 

situations, if one considers the reasons that are behind renvoi in the area of personal and 

family status, the more logical solution is to “accept” the reference back to Swiss law and to 

apply Swiss domestic law, without taking into account the foreign rules on renvoi. 

Art. 14(2) PILA applies in the area of personal and family status. In many cases however, this 

rule will not be applicable. This is obviously the case whenever Swiss law is applicable, either 

because it is designated by a bilateral connecting factor or because it is exclusively applicable. 

Renvoi is also excluded when the foreign law is designated by result-oriented choice-of-law 

rules (such as Art. 44(2) PILA for the celebration of marriage), because in this case the 

application of domestic law would then contradict the material purpose of the rule. As a result 

of all of these qualifications, renvoi only plays a practical role in the field of divorce (Art. 

61(2) PILA) and for the establishment of the parent-child relationships (Art. 68 PILA). 

3. The special rules on renvoi for name and successions 

A different solution has been adopted however in two particular areas: names and 

successions. According to Art. 37(1) PILA, the name of a person domiciled abroad is 

governed by the law designated by the PIL rules of the country of his/her domicile. Similarly, 

the estate of a person who died domiciled abroad is governed by the law designated by the 

PIL rules of the country of the deceased’s last domicile (Art. 91(1) PILA). 

These two provisions allow renvoi in a broader way than Art. 14(2), since they refer to all 

private international rules of the State of domicile. The reason for these specific solutions is 

that, in these matters, uniformity with the lex domicilii has been perceived as particularly 

important. The best way to attain it is to entirely follow the choice-of-law solutions adopted 

by that law, as if the competent Swiss court were sitting in the foreign country and applying 

the local private international law system (so-called “foreign court-theory”). 

This has two practical consequences. First, not only a reference back to Swiss law, but every 

renvoi is relevant, even if it leads to the application of the law of a 3 rd , or 4 th State, and so on 

(“renvoi au 2 e , 3 e ,…n e degré”, “Weiterverweisung”). Second, in the case of “double renvoi” 

14

mentioned above, Swiss courts cannot limit themselves to the consideration of only the 

foreign choice-of-law rules referring back to Swiss law. Rather, they must consider the entire 

PIL system of the lex domicilii, including its rules on renvoi. Swiss courts must decide as if 

they were sitting in the foreign country. Thus, if the foreign court in the same situation would 

accept the reference back resulting from Swiss PIL (i.e., from Arts. 37(1) and 90(1) PILA) 

and apply its own domestic law, then the latter would be applicable in Switzerland as well. 

IX. Characterization 

The PILA does not address the question of characterization. Swiss courts traditionally apply 

the lex fori. 40 

X. Judicial Application 

In general, Swiss courts have been faithful to the codification’s letter. It must be emphasized 

that they have been rather restrictive in the application of the general clauses included in the 

PILA, such as the escape clause of Art. 15 PILA, the public policy exception of Art. 17 and 

the lois de police of Art. 18 and 19 PILA. 

XI. Other General Features that Deserve Note 

It is important to note that party autonomy is widely recognized in the PILA, compared to 

other national PIL codifications. A choice of law is possible in following areas: 

- Matrimonial property régimes (Arts 52 and 53 PILA) 

- Successions (Arts 90(2) and 87(2) PILA) 

- Loss and acquisition of property rights in movables (Art. 104 PILA) 

- Contracts (Art. 116, see infra, point XIII(1)) 

- Torts (art. 132, see infra, point XII(1)) 

- Trusts (Art. 149c, referring to the Hague Convention on the Law Applicable to Trusts 

and on their Recognition of 1 July 1985) 

XII. Torts 

A specific section of PILA (chapter 9, section 2) is devoted to torts. Choice-of-law issues are 

regulated in Arts 132 to 142 PILA. Some of these provisions deal with the law applicable to 

specific issues (Arts 140 to 141 PILA, concerning multiple liability and the direct claim 

against the insurer of the tortfeasor). Art. 142 PILA broadly define the scope of application of 

the governing law. Arts 134 to 139 PILA regulate the law applicable to specific types of torts 

(such as traffic accidents, product liability, unfair competition, acts restraining free 

competition, environmental damages and violations of personality rights). Arts 132 and 133 

PILA contain the general rules; the former deals with the parties’ choice of applicable law, the 

latter with the law applicable in the absence of choice. 

1. The lex loci delicti rule and the derogations therefrom 

40 BUCHER & BONOMI (n. 24), 142. See ATF 111 II 276; 112 II 450; 127 III 390. 

15

The lex loci delicti rule is stated in Art. 133(2) PILA. According to this provision, if the 

tortfeasor and the victim do not have their habitual residence in the same country, the law of 

the country where the tort was committed is applicable. If the damage did not occur in the 

country where the tort was committed, then the law of the country where the damage occurred 

is applicable provided that the tortfeasor should have expected the damage to occur in that 

country. 

This rule is however subject to several exceptions and only plays a residual role in the PILA 

system. Under the influence of Anglo-American case law, the Swiss codification was one of 

the first in Europe to reduce the role of the classical lex loci delicti approach by providing an 

articulated set of rules, adapted to the particular types of torts and the interests involved in the 

different kinds of situations. 

First, the PILA contains, as mentioned, specific choice-of-law rules for particular types of 

torts. Some of these rules are also based on the lex loci delicti rule, but most of them adopt 

specific criteria. Thus, the lex loci delicti plays a central role for environmental damage (Art. 

138 PILA); it is also relevant, together with other connecting factors, for traffic accidents 

(which Art. 134 PILA submits to the Hague Convention on the Law Applicable to Traffic 

Accidents of 1971), and for violation of personality rights (Art. 139(1) PILA, in particular lit. 

c). For unfair competition and acts restraining competition, the applicable law is that of the 

market where the act has its effect (Arts 136 and 137); this can be regarded as a specific 

adaptation of the lex loci rule. By contrast, the lex loci delicti is not applicable in product 

liability cases (Art. 135 PILA). 

A second derogation may result from a party’s choice of the applicable law. This is permitted 

by Art. 132 PILA, but only after the damaging event and only in favor of the Swiss lex fori. A 

party’s choice is possible not only for torts which are not covered by specific rules, but also 

for certain specifically regulated torts, such as product liability, environmental damages and 

violation of personality rights. By contrast, the applicability of Art. 132 PILA is excluded for 

traffic accidents (because party autonomy is not allowed by the Hague Convention of 4 May 

1971) and controversial for unfair competition and acts restraining competition because of the 

public interests involved in such cases. 

Two further exceptions to the lex loci delicti rule are provided by Art. 133 PILA for the torts, 

that are not submitted to a specific regulation and in the absence of a party’s choice. Thus, 

Art. 133(1) PILA provides for the application of the law of the country where both the 

tortfeasor and the victim have their habitual residence. This solution has been clearly inspired 

by the Babcock v. Jackson case law. Furthermore, if the tort is closely connected with a 

preexisting legal relationship between the parties (e.g., a contract or a family law 

relationship), the law applicable to such a relationship also governs the liability in tort (so 

called “ancillary connection”). These derogations from the loci delicti rule have both, 

influenced other national legislations and, more recently, the Rome II EC Regulation on the 

law applicable to non-contractual obligations (Art. 4(2) and (3)). 

2. Cross-border torts 

The geographical dissociation of the place of the tort and the place of the injury only arises in 

those areas where the choice-of-law rules of the PILA are (directly or indirectly) based on the 

lex loci delicti principle. 

16

According to the residual rule of Art. 133(2) PILA, priority is given to the law of the injury. 

The latter is applicable, provided that the tortfeasor could have expected the effect to occur in 

that country. This foreseeability test is designed to protect the interests of the tortfeasor. Its 

way of operating is not entirely clear. Some conceive it as a sort of defense clause, allowing 

the party concerned to contest the application of the law of the place of injury by proving that 

the occurrence of the injury in that country was unforeseeable. Others consider that it is up to 

the plaintiff to prove the foreseeability. According to a third opinion, the decision of this issue 

remains in the judge’s discretion: neither of the parties carrying a real onus probandi 

regarding this point. In court practice, the test does not seem to have played an important role. 

A similar solution is adopted in Art. 139(1) PILA for violations of personality rights. This 

provision gives the victim the option among three different laws, (a) the law of his/her 

habitual residence, (b) the law of the country of the damaging party’s place of business or 

habitual residence, and (c) the law of the place of the injury, provided that the damaging party 

should have expected the injury to occur in that country. There is, however, a significant 

difference between this rule and Art. 133(2) PILA (discussed above). If the “foreseeability 

test” is not met, instead of referring to the law of the place of the conduct, the choice of the 

lex loci delicti under Art. 139(1)(c) PILA, is simply precluded. 

The place of the injury has also priority under Arts 136 and 137 PILA. According to these 

provisions, unfair competition and acts restraining competition are governed by the law of the 

market where they produce their effect. For these types of torts, the PILA does not require a 

foreseeability test: the paramount interest in a uniform application of the law of the market to 

all competitors suggests that such a subjective criterion as foreseeability should not be taken 

into account. 

An entirely different solution has been preferred in Art. 138 PILA for cross-border 

environmental damages. As mentioned above, this rule gives the victim a choice between the 

law of the State of the conduct and that of the place of the injury, thus favoring the material 

interests of the victim. 

3. Specific rules for different types of torts 

Under the previous headings, we have already discussed the specific solutions adopted by the 

PILA for several types of torts. Here, we will only mention the choice-of-law rule adopted for 

product liability, which is not based on the lex loci delicti principle. 

According to Art. 135 PILA, the victim has a choice between (a) the law of the country where 

the tortfeasor has his/her place of business or his/her habitual residence or (b) the law of the 

country where the product was acquired, unless the tortfeasor proves that it was marketed in 

that country without his/her consent. 

XII. Contracts 

A specific section of PILA (chapter 9, section 1) is devoted to international contracts. Choiceof-law 

issues are regulated in Arts 116 to 126. Some of these provisions deal with the law 

applicable to specific issues (Arts 123 to 126, concerning the effect of silence by the offeree, 

the formal validity of the contract, the practical modality of performance and inspection of the 

goods, contracting through an agent). Arts. 118 to 122 regulate specific types of contracts 

(such as contracts of sale of goods, contracts on immovable property rights, consumer 

17

contracts, employment contracts and contracts on intellectual property rights). Arts 116 and 

117 contain the general rules; the former deals with the parties’ choice of applicable law and 

the latter with the applicable law in the absence of choice. 

1. Party autonomy 

Party autonomy is one of the cornerstones of the PILA provisions on contracts. According to 

Art. 116(1) PILA, contracts are governed by the law chosen by the parties. 

The parties’ choice is regulated in a wide and liberal way. The only general limitations to its 

effect are public policy and “lois de police” (Arts 17 to 19 PILA). Nevertheless, specific 

restrictions exist for particular contracts involving weak parties, such as consumers and 

employees (Arts 120 and 121; see infra). 

The parties’ choice of law must be declared explicitly or be clearly demonstrated by the terms 

of the contract or the circumstances of the case (Art. 116(2) PILA). This provision makes 

clear that a tacit choice is possible, but only if it is clear that the parties really wanted it. This 

is different from a purely hypothetical choice: i.e., a choice that the parties would have 

probably made if they had considered the issue of the applicable law. 41 In practice however, 

the borderline between these two situations is not always clear. 

Case law has clarified that the choice of a court, or of the courts of a given State, is not in 

itself equivalent to a choice of the law of that State, although it represents one of the factors to 

be taken into account in considering whether a choice of law has been clearly demonstrated. 42 

Courts have also admitted that a choice of law can result from the conduct of the parties 

during court proceedings, provided that it is clearly demonstrated that the parties were aware, 

in the particular circumstances of the case, of the existence of a choice-of-law problem. Thus, 

a choice of law cannot simply be inferred from the non-contestation, by one of the parties, of 

the reference to the law of the forum made by the counterparty in its submissions to the 

court. 43 

According to Art. 116(3), a choice-of-law agreement can be concluded or modified at any 

time, i.e., before or even after the formation of a contract. An agreement made after the 

contract, takes effect retroactively from the time of contracting. Third party rights are, 

however, reserved. 

Regarding the object of the choice, although Art. 116 PILA does not expressly state it, it is 

generally admitted that the parties may designate the law of any country, even if their 

relationship has no other objective connection with that country. 44 The parties can also ‘split’ 

the contract by making a partial choice of law. 45 

The question of the admissibility of a choice of non-State rules occasionally arises with 

respect to the reference, sometimes included in international commercial contracts, to such 

notions as the customs of international trade, the general principles of law or the lex 

41 See ATF 87 II 194; 119 II 173; 123 III 35; 19 février 2004, 4C.307/2003; 11 septembre 2006. 

42 ATF 100 II 34; 111 II 175; 19 janvier 2001, 4C.54/2000. 

43 ATF 91 II 44; 119 II 173; 123 III 35; 19 février 2004, 4C.307/2003. 

44 See VISCHER, HUBER & OSER (n. 24), n° 81; KELLER & KREN KOSTKIEWICZ (n. 24), Art. 116 n° 14; DUTOIT 

(n. 24), Art. 116, n° 4; AMSTUTZ et al. (n. 24), Art. 116 n° 12; BUCHER & BONOMI (n. 24), 257 ss 

45 See n. 24. 

18

mercatoria, or to international conventions that are not applicable (or not yet in force), or to 

compilations or restatements of principles, such as the UNIDROIT Principles on International 

Commercial Contracts. Art. 116 PILA does not include any reference to the choice of non- 

State rules. Swiss legal scholars have diverging views on the admission of such a choice; 46 the 

case law has not yet provided a conclusion to this question. 

The wording of Art. 116 PILA (“contracts are governed by the law chosen by the parties”) 

could be regarded as exclusively referring to the choice of State laws. As a matter of fact, 

texts that intend to admit the choice of non-State rules generally underline this possibility by 

referring to the choice of ‘rules of law’, or by using similar expressions. This is the case of 

Art. 187(1) PILA, which admits the designation of non-State rules as applicable to the merits 

of a dispute submitted to arbitration, following the example of Art. 28 of the UNCITRAL 

Model Law on International Commercial Arbitration. However, this argument, based on the 

black letter law of Art. 116 PILA, is not very convincing. 

The Federal Court has ruled that the reference by the parties to rules elaborated by a private 

(professional or sportive) organization, such as the FIFA (Fédération International de Football 

Association) or the SIA (Swiss Society of Engineers and Architects), cannot be regarded as a 

choice of law, but only represents an incorporation by reference of these rules into the 

contract. 47 As such, it is valid, but it cannot derogate from the mandatory provisions of the 

law applicable to the contract. According to a widespread view however, this ruling does not 

put an end to the issue, because it was not meant to cover those type of rules, that are 

elaborated upon by an independent body of experts, under the supervision of an international 

organization (like the UNIDROIT Principles). 

As a results of the above-mentioned Federal Tribunal decision, the exclusion of the choice of 

non-State law does not mean that the parties’ reference to such rules has to be completely 

ignored. Swiss courts will normally regard the reference to such rules as an incorporation of 

these rules into the contract, and consider it valid insofar a the parties are free to determine the 

content of their contract under the applicable domestic law. Consequently, all mandatory rules 

of the applicable law (and not only the ‘lois de police’ of Arts 18 and 19 PILA) take priority 

over the non-State rules chosen by the parties. 

2. Choice-of-law and arbitration agreements 

International arbitration agreements and forum selection agreements are the objects of a rather 

liberal regulation in the PILA (Arts 177-178 and 5 PILA). These agreements are admissible 

for all patrimonial matters (Art. 5 and 177 PILA). Contrary to choice-of-law agreements, they 

are subject to formal requirements since they must be concluded in writing (Arts 5 and 178(1) 

PILA). To uphold the substantial validity of arbitration agreements, Art. 178(2) PILA 

provides for three alternative connections: i.e., the law applicable to the arbitration agreement, 

the law applicable to the merits of the dispute or Swiss law as the law of the seat of the 

arbitration. 

Choice-of-law agreements are of course possible in arbitration. In international arbitration, 

Art. 187(1) PILA allows for the choice of “rules of law”, which clearly include non-State 

rules of law. 

46 VISCHER et al. (n. 24), n° 118 ss; AMSTUTZ et al. (n. 24), Art. 116, n° 21; DUTOIT (n. 24), Art. 116 n° 4; 

KELLER & KREN KOSTKIEWICZ (n. 24), Art. 116, n° 17. 

47 ATF 132 III 285. 

19

3. Law applicable in the absence of choice 

In the absence of a party’s choice, the law applicable to the contract is regulated by Art. 117 

PILA. The choice-of-law mechanism provided for in this rule is similar to that of Art. 4 of the 

Rome Convention on the Law Applicable to Contractual Obligations of 19 June 1980. It is 

based on the interaction between the general principle of the closest connection and the 

presumptive concretization of that principle through the concept of characteristic 

performance. 

Art. 117(1) PILA states the principle that, in the absence of a parties’ choice, a contract is 

governed by the law of the country to which it is most closely connected. Pursuant to Art. 

117(2) PILA, the closest connection is presumed to exist with the country where the party 

required to effect the characteristic performance has his/her habitual residence or, if the 

contract is concluded in the course of a professional or commercial activity, his/her place of 

business. 

The notion of characteristic performance has been developed by legal Swiss scholars and 

adopted by the Federal Tribunal since 1952. The PILA does not include a definition of 

characteristic performance. Contrary to the Rome Convention however, Art. 117(3) includes a 

catalogue specifying characteristic performance for the most common contractual types (e.g., 

the transfer of title in a contract having this object, the provision of services in a contract for 

services). From this provision, it is possible to infer that the characteristic performance is, in 

most bilateral (“synallagmatic”) contracts, the non-monetary one. The Swiss experience 

shows that courts and lawyers appreciate the precisions included in Art. 117(3) PILA; the 

legislative criteria often avoid long and rather abstract speculations on the notion of 

characteristic performance, thus facilitating the solution of the disputes arising out of 

international commercial relations. 

With respect to the relationship between the principle of the closest connection and the 

presumption based on the characteristic performance, Swiss case law has opted for quite a 

rigid approach. According to this interpretation, the presumption normally indicates the 

country to which the contract is most closely connected and it can be set aside only under 

exceptional circumstances. This is the case – as the Federal Tribunal put it – “when the 

rationale of the normal connection fails, because a factual element, which is implicitly 

presupposed as essential by the conflict rule and which constitutes the basis of that rule, is 

absent in the particular case”. 48 In practice, the Federal Tribunal has almost always applied 

Art. 117(2) PILA. 

The principle of the closest connection is, however, important whenever the characteristic 

performance cannot be determined in a particular contract. This is namely the case when the 

parties assume obligations of the same nature (e.g., a contract of barter or money-exchange) 

or when the contract is so complex that it is impossible to single out an specific obligation 

which characterizes the contract. 

Some of the rules contained in Arts 116 and 117 PILA are derogated from for specific types 

of contracts: 

48 Decision of 11.7.2002, 4C.99/2002. 

20

• For contracts on the sale of goods, Art. 118 PILA refers to the Hague Convention on 

the Law Applicable to International Sales of Goods of 15 June 1955. This text also 

recognizes the parties’ choice, but its regulation of the applicable law in the absence of 

choice does not correspond to that of Art. 117 PILA. 

• Contracts on immovable property rights are regulated by the law of the place where 

the property is situated. This coincides with the law applicable to immovable property 

rights (Art. 99 PILA). The parties’ choice of a different law is, however, permitted for 

the contractual obligations regarding immovable properties (Art. 119(1) PILA). 

• Consumer contracts are governed by the law of the country of habitual residence of the 

consumer. A party’s choice of the applicable law is excluded (Art. 120 PILA). 

• Employment contracts are subject to the law of the country where the employee 

habitually carries out his/her work or, if the employee performs his/her work in more 

than one country, by the law of the country where the place of business of the 

employer is situated (Art. 121(2) and (3) PILA). The parties may nevertheless choose 

either the law of the country of the employee’s habitual residence or the law of the 

employer’s place of business, domicile, or habitual residence. 

• Contracts on intellectual property rights (such as transfer of technology or licensing 

contracts) are governed by the law of the country where the transferor or the licensor 

has his/her habitual residence (Art. 122(1) PILA). This solution is based on the 

concept of characteristic performance. A choice of law is, however, permitted 

according to the general rules (Art. 122(2) PILA). 

21

ESSENTIAL BIBLIOGRAPHY ON THE SWISS CODIFICATION 

� A. BUCHER, Droit international privé suisse - Tome I/1, Tome I/2 et Tome II, Basle : Helbing & 

Lichtenhahn 1998 (Tome I/1), 1995 (Tome I/2) et 1992 (Tome II). 

� A. BUCHER, L’enfant en droit international privé, Basle : Helbing & Lichtenhahn 2003. 

� A. BUCHER, Le couple en droit international privé, Basle : Helbing & Lichtenhahn 2004. 

� A. BUCHER & A. BONOMI, Droit international privé, 2 nd ed., Basle : Helbing & Lichtenhahn 2004. 

� B. DUTOIT, Droit international privé suisse, Commentaire de la Loi fédérale du 18 décembre 

1987, 4 th ed., Basle : Helbing & Lichtenhahn 2005. 

� A. HEINI et al., Zürcher Kommentar zum IPRG - Kommentar zum Bundesgesetz über das 

Internationale Privatrecht (IPRG) vom 18 Dezember 1987, 2 nd ed., Zurich : Schulthess 2004. 

� H. HONSELL et al., Kommentar zum Schweizerischen Privatrecht - Internationales Privatrecht, 2 nd 

ed., Basle : Helbing & Lichtenhahn 2007. 

� F. KNOEPFLER / P. SCHWEIZER/ S. OTHENIN-GIRARD, Droit International Privé Suisse, 3 rd ed., 

Berne : Stämpfli 2005. 

� J. KREN-KOSTKIEWICZ, Internationales Privatrecht, Bern : Stämpfli 2004. (2010, mai) 

� P.M. PATOCCHI & E. GEISINGER, Code de Droit International Privé Suisse annoté, Lausanne : 

Payot 1995. 

� K. SIEHR, Das internationale Privatrecht der Schweiz, Zurich : Schulthess 2002. 

� A.K. SCHNYDER & M. LIATOWITSCH, Internationales Privat- und Zivilverfahrensrecht, Zurich : 

Schulthess 2000. 

� I. SCHWANDER, Einführung in das internationale Privatrecht - Erster Band: Allgemeiner Teil, 3 rd 

ed., Sankt-Gallen : Dike 2000 ; Zweiter Band: Besonderer Teil, 2 nd ed., Sankt-Gallen : Dike 1997. 

� G. WALTER, Internationales Zivilprozessrecht der Schweiz, 4 th ed., Bern : Haupt 2007. 

22

CLASS ACTIONS / LES ACTIONS COLLECTIVES 

DIEGO CORAPI (GENERAL EDITOR) * 

1. In our world of complex societies, where people daily interact with 

other anonymous people, where products and services are provided in 

massive standardized series by large organizations, where the financing of 

different economic activities is made through impersonal networks, where 

citizens in their daily life are at times consumers, users, investors, subject to 

the same kind of opportunities and of risks, disputes arising from their 

interactions require to be resolved by procedures different from the 

traditional bipolar litigation model. 

In the 19 th century the working conditions created by the rising 

industrial society imposed a dramatic change in labour relations. Trade 

unionism and employment contracts negotiated in a collective way were the 

answer. The traditional doctrine of contracts as expression of the free will of 

the parties had to be adjusted to this evolution and the solution of conflicts 

arisen from them requested different kind of proceedings. 

Now, in the 21 st century, the conditions created by mass consumption 

and use of goods and services have imposed a change in contract law granting 

a collective protection of consumers and investors. To make such protection 

effective it is not only necessary to adjust the traditional doctrine of contracts 

as expression of the free will of the parties and of tort liability based on fault, 

but it has become also necessary to devise collective redress mechanisms. 

In fact, collective redress mechanisms in case of consumer protection 

and of mass torts have been introduced in many legal systems. In many other 

legal systems their introduction is widely discussed and proposals have been 

prepared. 

The goals of collective redress are the same in all jurisdictions. We can 

take as an example art. 1 of the Israeli Class Action Law of 2006 which spells 

them out as follows: 1. The goal of this law is to set uniform rules in the matter of the 

submitting and managing of class actions, in order to improve the defence of privileges, and 

in doing so particularly promote these: actualizing the privilege of access to the court house, 

including the types of the population that find it difficult addressing the court as individuals; 

enforcing the law and deterring its breaking; giving proper assistance to those harmed by the 

violation of the law; efficient, fair and exhaustive management of suits 1 . 

* Diego Corapi is Professor of Comparative Private Law at the University of Rome “La Sapienza” 

1 Quoted by prof. Michael Karayanni in his report for Israel.



However, the structure of collective redress mechanisms varies greatly 

in different jurisdictions. 

Also the terminology used to define them is different. Some remarks 

on it seem necessary 2 . 

The term “class action” could be restricted to the US-style procedure 

whereby many subjects are represented by one single claimant; the term 

“collective actions” to procedures where different organizations or 

associations act on behalf of a number of persons (not necessarily their 

members); the term “test” or “model cases” to procedures in which an 

individual case may become a precedent for a multitude of other cases. 

All such procedures have in common that “at the bottom of these 

lawsuits there are usually interests of a larger group or even a public interest 

although they might formally appear as traditional two-party cases” 3 . 

For the purpose of this report it is suggested to reserve the term “class 

action” for the US style procedure because in that country this redress 

mechanism was first developed and gained such importance to become 

ingrained in the system as one of its most typical institutions. 

A comparative outlook to the procedures envisaged in other 

jurisdictions may, therefore, be usefully conducted moving from the US style 

“class action” to discover and understand their convergences and their 

divergences from it. 

2. Any national system of law depends from the culture of its country 

of origin. 

The close link between civil procedural law and the cultural milieu in 

which it developed is a well-known phenomenon 4 . 

Also in the area of collective redress procedures the approach of 

legislators, judges and lawyers is influenced not only by socio-political and 

economic factors in general but also by considerations based on their cultural 

aspect. 

The transplant of US style class action was very strongly opposed also 

for such cultural reasons. 

In the words of an American observer of the civil law world 5 , the 

culture of civil law countries considered “the class action intellectually untidy. For 

Continental Europeans all legal institutions, whether substantive, procedural or in the 

interstices, begin from fundamental premises and structures and work their way patiently 

towards the details. Rule 23 [of Federal Rules of Civil Procedure] seemed like a 

2 The point is raised by prof. Astrid Stadler in the introduction to her report for Germany. 

3 I quote again prof. Stadler’s report. 

4 W. De Vos, French civil procedure revisited, Stellenbosch Law Review, vol. 9, n. 2, 1998, p. 217. On the point L. 

Cadiet, Culture et droit processuel, Rapport aux Journées Louisianaises de l’Association Henri Capitant, Droit et Culture 

Bruxelles 2010, p. 409 Baton Rouge. 

5 R.B. Cappalli in R.B. Cappalli and C. Consolo, Class Action for Continental Europe? A Preliminary Inquiry, Temple 

In Land Comp. Law Journal, vol. 6, 1993, 217 at 219.

Diego Corapi (General Editor) 

Class Actions / Les Actions Collectives 

Rube Goldberg artefact – a strange looking melange of pushes and pulls and bells and 

bumbles. The Rule had some goals, some standards and some procedures, but little in the 

way of either internal coherence or integration with larger community of means in which it 

was placed”. 

This attitude has slowly changed. A vision not only of some 

unacceptable aspects of US class action, but also of its positive impacts has 

been developed. 

Consideration has been given to the fact that also in the US criticism of 

an excessive use of class action procedures and of its sometimes abusive 

effects is spreaded and has produced in 2005 a reform, the Class Action 

Fairness Litigation Act (CAFA), which transferred to Federal District Courts 

and subtracted from so called “magnet” state courts interstate class actions, 

i.e. practically all large class actions. 

In analysing the class action procedure in the US a distinction must be 

drawn between the aspects which are only a reflection, and a very enhanced 

one, of typical institutions and rules of American civil procedure and the 

fundamental character of the class action. 

Pre-trial discovery, trial by jury, the way oral testimony is taken and 

cross examination, the large discretion of judges in case managements, 

punitive damages, the financing of the action by law firms and contingent 

fees are all aspects which until not long ago simply horrified lawyers formed 

in civil law jurisdictions and today still leave them very skeptical of the 

possibility to transplant in their systems a class action with such 

paraphernalia. 

On the other hand there is a growing perception that the essence of 

class action US style does not lay in such so different procedural and socioeconomic 

characteristic. 

In the words of two European observers 6 “the kernel of the concept” of class 

action US style is in “an opt-out procedure whereby consumers can be represented by default 

if given adequate notice of the action”. 

In the landmark case Hansberry v. Lee 311, US 32 (1940), the Supreme 

Court approved representative suits as “due process” as long as the procedures 

employed adequately protect absentee interests. In Phillips Petroleum v. Shutts, 

472 US 797 (1985) the Supreme Court declared not only the constitutionality 

but also the necessity of the opt-out device. 

What impresses lawyers formed outside the US is the way the principle 

that everyone has an individual right to assert a legal claim 7 and its corollary 

rule that “nul ne plaide par procureur” 8 is so candidly disposed of in the class 

action procedure. 

6 D. Fairgrieve and G. Howells, Collective Redress Procedures – European Debates, ICLQ vol. 58, 2009, p. 379. 

7 Art. 24, para. 1 of the 1948 Italian Constitution: “Everyone can act at law for the assertion of his own rights 

and ligitimat4e interests”. 

8 See prof. Mélina Douchy-Oudot, Où on est-on l’action de groupe, paper annexed to her report for France.



On the other hand, outside the US little attention is given to the fact 

that in the US opt-out system, a class member must usually return to the court 

a claim form stating his or her claim within a defined period, that, in other 

words, even in an opt-out system, a class member must take an active step to 

benefit from the class judgement 9 . 

The adoption of the opt-out rule entails some consequences also in the 

procedural rules which govern a class action. 

Judges must certify with great accuracy the requisites of numerosity, 

commonality and adequacy of representation. The way notification is 

disposed and effected becomes essential. Case management is the rule. The 

waiver and the settlement of the action need to be scrutinized and approved 

by the court. Judge have the power to award a flexible range of remedies, 

including but not restricted to the awards of damages to identified individuals. 

3. The 26 national reports that were sent on this subject give an 

interesting overall picture of the above situation 10 . 

Some countries have introduced or are currently proposing to 

introduce a legislation on collective redress based on the US experience, but 

even so they either have not introduced the opt-out rule or, when they have 

done it, they have harmonized it with their procedural principles. In none of 

such countries other aspects of class action US style have been adopted 

(except when were already present in their systems: e.g. in common law 

jurisdictions the rule about no shifting of costs on the losing party). 

Other countries have introduced a collective redress action in the form 

of group action by a representative body or organisation. 

Finally a third group of countries have only adjusted their existing 

procedures to the need of collective redress. 

All the national reports illustrate their respective situation and even 

those who are limited to an answer to the questionnaire I sent for guidance 

are rich of information and thoughtful remarks. 

In this general report, therefore, I will confine myself to a survey of the 

solutions they have presented. 

9 The point is made by A. Gidi in his report on the US. Antonio Gidi adds that “the result of this practice is worse 

than an “opt-in” class action because the class member that does not return the form in effect is a class member bound by the class 

judgment, is precluded and cannot bring his or her own proceeding and also cannot recover because he or she missed the deadline”. 

10 The following national reports were sent: Argentina (prof. Guillermo Treacy); Australia (prof. Camille 

Cameron); Austria (prof. Walter Rechberger); Belgium (prof. Piet Taelman and Stefan Voet); Brazil (prof. 

Antonio Gidi); Canada (prof. Janet Walker) Danemark (prof. Peter Møgelvang-Hansen); England (prof. 

Duncan Fairgrieve) Finland (prof. Antti Jokela); France (prof. Melina Douchy Oudot); Germany (prof. Astrid 

Stadler); Greece (prof. Dimitrios Tsikrikas); Hungary (prof. Petrovichné Wopera Zsuzsa ès Nagy Adrienn); 

Israel (prof. Michael Karayanni); Italy (prof. Andrea Zoppini); Mexico (prof. Eduardo Ferrer Mac-Gregor, 

Alberto Benitez and Antonio Gidi); Netherlands (prof. Marie-José van der Heijden); Poland (prof. Janusz 

Jankowski and prof. Slawomir Cieślak); Portugal (prof. Miguel Teixeira de Sousa); Scotland (prof. Sarah 

Bleichner); Spain (prof. Regina Garcimartin); Sweden (prof. Per-Henrik Lindblom); Switzerland (prof. Karen 

Jeanneret-Druckman); Taiwan (prof. Kuan-Ling Shen); USA (prof. Antonio Gidi); Venezuela (prof. Hildegard 

Rondoòn de Sansò).



4. Among the countries who have introduced a class action similar to 

the US one, the rules of countries like Canada and Australia are the nearest to 

the US ones. 

The Australian Federal Act on the matter, in fact, initially structured 

the procedure as an opt-out procedure. However, a Federal Court decision 11 

endorsed the validity of clauses of a funding agreement which requested the 

member of a class to sign the agreement in order to participate in the class 

action. 

This decision created the equivalent of an opt-in situation, making 

possible what the Australian reporter prof. Camille Cameron, defines “closed 

classes”. 

It is noticeable that this solution derives from the practice to obtain 

financial support for the class action not from law firms (which in Australia 

are prohibited to stipulate contingent fees), but from other subjects, so called 

commercial funders. 

In Canada the rule in the legislation of most provinces is opt-out class 

action. In some of them, however, there are special provisions requiring nonresidents 

to opt-in and also public authorities, ombudsman and other 

organizations may start a class proceeding (although in practice it never 

happens). 

Also Israel, where – as it was remembered above – a Class Action Law 

was enacted on 2006, has an opt-out system. 

5. A number of European countries has recently enacted class action 

legislation. 

Sweden in 2003, Norway in 2005 12 , Danemark in 2008. 

Swedish law is based on a mandatory opt-in procedure. The Danish and 

Norwegian rules allow the possibility of using the system with automatic 

group affiliation compiled with the right to opt-out in certain cases. 

In Italy, a new art. 140-bis listed as “Class Action” (Azione di Classe) was 

introduced in the Consumer Code in 2009. The class action had already been 

introduced by a law of 2007, but never entered into force. The new provision 

of 2009 not only established its entry into force on January 1, 2010, but also 

modified the original structure of the action. 

While in the previous version the redress was sought by a collective 

action which could be brought by consumer associations, in the new and final 

text the action is brought by each single person seeking redress. 

11 Multiplex Funds Management Ltd. V. P. Dawson Nominees Pty Ltd [2007] FCAFC200 

12 We have received no report for Norway, but reference to its system is made in the reports for the other 

Scandinavian countries.



The structure is opt-in and the class action can be used for the 

enforcement of “homogenous, individual rights of consumers and users”. An 

association may have standing if the injured party grants it powers. 

The choice for the opt-in solution allows the application to the class 

action Italian style of the provisions of the civil procedure code (except for 

some specificity) with little room for case management. In fact, the persons 

who opt-in do not become technically parties in the proceedings, but only 

share its results. From a formal procedural point of view, the proceeding 

remains a bilateral one with only one party representing all the persons who 

opted in. 

Another example of class action based on the US style, but with the 

opt-in solution may be found in Taiwan, where a Consumer Protection Act of 

1994 and an Investor Civil Procedure Code of 2003 have regulated two kinds 

of class action: a class action by statutory assignment (which grants 

consumers’ associations the action for injunction relief in the protection of 

public or collective interests) and a class action in which a representative party 

or an association act by parties’ assignment on behalf of persons who optedin. 

Portugal has introduced in 1995 a “civil popular action”, by which an 

individual (as in the class action) or a representative body (as in the collective 

action) may bring actions related to consumer protection, environment, 

public health, cultural heritage, public property. 

It appears that the same mechanism may be employed in the protection 

both of “diffuse interest” and of homogeneous individual interests. 

More articulated is the mechanism introduced in the Netherlands. The 

new Civil Code has provided for a collective action which may be started by 

associations representing the interested individuals, but only in order to 

obtain injunctive relief. A Settlement of Mass Damages Act (2005) has 

introduced a procedure for the collective settlement of mass claims. 

According to this procedure, a foundation or association representing 

the injured persons may request the Court to declare that a settlement 

reached with the infringing party is fair and equitable. The decision binds also 

the injured persons who were not represented. He who does not wish to be 

bound by the settlement agreement has to declare it within a term determined 

by the court. The mechanism works on an opt-out basis. 

In Spain a law of 2007 has introduced a collective action for 

consumers’ protection, which provides that consumers’ associations may 

claim also for persons not belonging to the association. The same association 

may also bring action for the protection of diffuse interests. 

More recently a new kind of action against gender discrimination was 

introduced, where again associations have standing. 

A somewhat similar mechanism functions in Austria, where on the 

basis of existing legislation (para. 227(1) of ZPO, which allows the collection



of several claims in one action under certain circumstances: objektive 

Klagenhäufung) a kind of collective litigation was developed: several claims of 

harmed individuals are assigned to an association. 

This solution has been defined “the Austrian model of the class 

action”, but projects for an organic legislative intervention on the matter are 

pending. 

6. An interesting solution has been adopted by the country which was 

one of the first to introduce a collective redress action: Brazil. 

Art. 81 of the Brazilian Consumer Code 1990 provides that “the 

protection of consumers’ interests or rights may be granted on Court individually or 

collectively and that the collective protection shall be allowed in case of: I – diffuse interests or 

rights, meaning transindividual, indivisible interests or rights held by indeterminate persons 

linked by factual circumstances; II – collective interests or rights, meaning the 

transindividual, indivisible interests or rights held by a group, category or class of persons 

linked to each other or to the opposing party by a common legal relationship; or III – 

homogenous individual interests or rights, meaning those stemming from a common origin”. 

The wide-ranging object of this action is explained by the circumstance 

that, according to art. 82 of the same Act, the entities who have collective 

standing for bringing it are: I – the office of the Attorney General; II – the Federal, 

State or Municipal Government and the Federal District; III – entities and agencies of the 

direct and indirect public administration, including those without legal personality, 

specifically designed for the protection of the interests and rights protected by the Consumer 

Code; IV – associations legally incorporated for at least one year, whose institutional 

purpose include the protection of the interests and rights protected by the Consumer Code 13 . 

The circumstance that the Attorney General (Ministerio Publico) has 

standing tinges the action as public. The Ministerio Publico in Brazil is a 

completely independent body, which performes its task with vigour. 

Another country which has chosen to confer to a public body the 

action for protection of collective interests of consumers and users is Finland, 

where an Act, which came into force in 2007, establishes that the Consumer 

Ombudsman is the primary actor to bring the action as representative of the 

class. Individuals have a right to act only if the Consumer Ombudsman has 

decided not to do so. 

7. Other countries are experiencing different solutions and are 

approaching the idea that a more thorough and complete intervention will 

eventually be needed. 

In England the Civil Procedure Rules enacted in 1999 introduced the 

Group Litigation Order (GLO), a flexible procedure allowing for a register to 

13 The above english translation of the Consumer Code provisions is taken from the Appendix to Antonio 

Gidi, Class Actions in Brazil. A model for civil law countries, Am. J. of Comparative Law, vol. 51, 2003, p. 406. Prof. 

Antonio Gidi’s report for Brazil to this Congress makes reference to this article.



be established where a number of claims give rise to common or related 

issues of fact or law. 

Exercising powers under a sort of case management, the judge may 

order that persons which a claimant claims to represent be notified and 

allowed to opt-in. The controversy may then be resolved in one single 

proceeding. It has to be noticed that persons who opt-in become parties in the 

proceedings, so that the GLO may be considered as a sort of organized 

multiparty proceeding. 

Germany, too, where legal circles appear to be fiercely opposed to the 

introduction of class actions or collective redress mechanism, has enacted in 

2005 a test case procedure in the field of securities: the Capital Market Model 

Case Act (Kapitalanlage – Musterverfahrensgesetz – KapMuG). 

Where several claims are brought for damages due to false, misleading 

or omitted public capital market information, upon application of one of the 

parties and the opting–in of nine other plaintiffs, a model or test case 

proceeding can be established in order to decide on issues of fact or law 

which are common to all cases pending and being related to the same dispute. 

The Court having jurisdiction for the model case proceeding (Higher 

Regional Court), then has to select the case of one plaintiff as model case. All 

other cases pending will be suspended ex officio and the decision on the model 

case will be binding also for them. 

In France discussions about group actions are very fervid and many 

proposals have been put forward also in official way. Two kind of actions, 

however, are in existence: 

- l’action d’intérêt collectif, or action en cessation d’agissement illicite which allows 

consumers associations registered in an official list to bring claims against the 

infringement of a collective consumer interest or a collective interest of 

investors. This kind of action is in application to the EC directive on 

consumer protection; 

- l’action en representation conjointe, which is based on a proxy to claim for 

damages granted to an association agrée et reconnue représentative sur le plan national. 

Both actions are not much used in practice. The second one, in 

particular, meets a limit in that “le mandat ne peut être sollicité par voie d’appel public 

télévisé on radiophonique, ni par voie d’affichage, de tract ou de lettre personnalisée” 14 . 

8. The reports from Mexico, Venezuela and Argentina indicate that in 

those countries collective redress proceeding are based on an action of 

constitutional character (amparo) which is envisaged as an action to be 

employed by public bodies or local communities to protect diffuse and 

collective interests. 

14 This prohibition was applied by a Court decision against a group of lawyers who had created a site 

classaction.fr, which offered assistance to other lawyers in the organization of actions en représentation conjointe.



9. The reports of other countries (Belgium, Greece, Hungary, Poland, 

Scotland, Switzerland) show that the issue of collective redress has arosen 

interest, debates and proposals for the introduction of new forms of action. 

But in none of such countries the proposals have been yet definitively 

approved. 

10. The different solutions presented by the reports for each country 

offer food also for consideration of one of the fundamental issues which the 

globalization of economic and social life poses in our time. 

It is a common experience that consumers and investors contracts very 

often have a transnational character, that mass tort may be caused by firms 

who are located and/or operate in countries different from the countries 

where the consumers or investors live. 

This situation makes more and more necessary an integration or, at 

least, a coordination of different substantive right and procedural actions of 

consumers and investors. 

How can such integration and coordination be reached? 

Political and economic problems have, of course, to be solved. 

But in order to prepare the ground for their solution, something may 

be done or, I would say, must be done from a purely legal point of view. 

Comparative law scholars are called to the task to analyse the questions 

which collective redress mechanisms pose in each jurisdiction and to see what 

kind of solution may be offered. 

Studies and essays in this field are already very numerous. I like to 

mention here one study which represents a generous attempt to give an 

answer to the difficulty that civil lawyers meet when dealing with “class 

actions”: Antonio Gidi has published in 2005 a class action code, as a model 

for civil law countries 15 . 

11. The reports which came from European countries also confirm one 

common thread which has been already noticed 16 , namely the desire to find a 

model of collective redress procedures which is distinct from that of the US 

class action and which draws upon more specifically european concepts. 

The preference for the opt-in regime, the role of consumers associations 

and of public entities (Ombudsman, etc.), the check on the admissibility of 

the collective claim, the more limited scope of collective redress procedures 

may be seen as aspects of the different model emerging in European 

countries, together with the refusal of American procedural devices such as 

discovery, punitive damages, jury system, contingency fees. 

15 A. Gidi, The Class Action Code: A Model for Civil law Countries, Arizona Journal of Int. and Comp. Law, vol. 23, 

2005, p. 37. 

16 D. Fairgrieve and G. Howells, quoted supra at note 6.



This process of creating a more harmonized development of collective 

redress procedures in Europe could be sustained by the EU’s policy as it has 

been indicated in the Green Paper on Consumer Collective Redress. Com (2008) 794 

final.

CLASS ACTIONS / LES ACTIONS COLLECTIVES 

_____________________________________________ 

QUESTIONNAIRE 

ANDREA ZOPPINI * 

I. GENERAL ISSUES 

1. Does a specific procedure exist in your legal system for dealing with a 

series or a group of homogeneous and/or related claims? 

Answer 1): Beginning on January 1, 2010, pursuant art. 49 of the law of July 

23, 2009, n. 99, article 140-bis of the Consumer Code, listed as “Class 

Action” (“Azione di classe”) entered into force in our legal system. 

The class action had already been previously introduced by the financial Law 

for the year 2008 (law n. 244 of 24-12-2007, art. 2, 446 th paragraph), but it 

never effectively entered into force. In fact, the class action, under the 

financial law of 2008, should have become applicable starting from July 1, 

2008 but the legislature postponed its entry into force several times: first on 

January 1, 2009, then on July 1 2009, and finally, after having deeply modified 

its text (art. 49 of the Law of L. July 23, 2009, n. 99), the Legal Decree 

78/2009 provided for its entry into force on January 1, 2010. 

2. If such a procedure exists, how do its rules fit with the principles and 

general rules of civil procedure in your system? 

Answer 2): 

The class action is an institution of a procedural nature which permits 

multiple parties damaged by the same wrongful conduct to bring their 

respective claims for damages or restitution through a single action against a 

common defendant 

The class action is a “new, general, protective instrument within the frame 

work of national measures aimed at the regulation of consumers’ and users’ 

rights, in conformity with the principles established by the EU laws aimed at 

raising the level of protection.” 

From this premise it follows that the class action lies in continuity with the 

configuration of the traditional damages action provided for under our legal 

system, but additionally has the goal of facilitating the protection of rights in 

cases where the individual plaintiff would have no incentive to undertake a 

* Andrea Zoppini is Professor of Comparative Private Law at Roma Tre University



suit alone because of costs would exceed the possible gains because of the 

small amount of the claim at stake. 

4. Do the rules on class / groups actions apply to all areas of law or to 

certain sectors only (e.g. banking and financial services, product 

liability, competition, etc)? In the latter case outline the specific rules 

pertaining to such sectors 

Risposta 4): 

The class action can be used for the enforcement of “homogenous, individual 

rights of consumers and users.” 

At paragraph 2 of art.140 bis the legislature expressly determined which 

categories of rights can be protected: 

a) contractual rights of a number of consumers and users who claim against 

the same company in an identical situation; 

b) identical rights of final consumers of a determined product against its 

producer, even without a direct contractual relationship; 

c) identical rights of the same consumers and users for relief from damage 

deriving from incorrect commercial practices or from anti-competitive 

behaviour. 

5. How many class / group actions are brought each year in each area 

of law they are allowed? 

Answer 5): 

Given the very recent introduction into our legal system of the class action it 

is difficult to determine the effective amount of cases currently underway. 

The new institution has certainly had a very wide exposure and publicity in 

our country and many consumer organizations have been organized to under 

take collective actions, to protect damaged consumers/users. 

6. Does the procedure provide for (a) a class action, in the sense that 

the decision on one claim is binding for all claims of the same class or 

(b) a group action (“action collective”) where related claims may be 

managed together, but the decision on such claims does not create a 

binding precedent for other claims? 

Answer 6): 

Art. 140 bis at paragraph 14 provides that the judgment determining the case 

is binding not only on the plaintiffs bringing the action but also on the 

members of the class action itself.


Class Actions / Les actions collectives 

The rights of the members who have not expressly consented to waive them 

and transactions taken between the parties are excluded. 

Further actions are not possible based on the same facts against the same 

company outside of the terms established by the judge in the order with which 

s/he decides admissibility. 

Collective actions eventually proposed to be joined to the first which are 

brought within the terms determined by the judge, are officially combined if 

they are pending before the same court; otherwise the judge to whom the case 

is later assigned the cancelation of the case from the docket establishing a 

deadline for its resumption before the same judge. 

The individual cause of action of plaintiffs who do not join the class action in 

any case survives. 

7. Is the procedure structured as “opt-in” or “opt-out”? 

Answer 7): 

The Italian class action belongs to the opt-in type: the judgment with which 

the case is decided has effect only and exclusively for the damaged parties 

who have joined, while all the other subjects can not enjoy the effects of the 

favorable judgment, but can in any case bring individual actions on the basis 

of ordinary procedures. 

8. Is there a minimum of claims (in number or amount) that can be 

managed under the procedure? 

Answer 8): 

Italian law, referring generally to “a number of consumers and users who take 

action against the same business in an identical situation,” imposes no 

minimum – nor a maximum – on the number of persons who can join 

together to bring a class action. 

9. How homogeneous or similar must the claims be in order to be 

included in a class action or in a group action? 

Answer 9): 

The norm on the Italian class action uses interchangeably the expression 

“homogeneous individual rights” and “identical rights owed to consumers”. 

Art. 140 bis only provides the names of these two categories without dictating 

useful criteria for their identification and qualification.



Legal doctrine aimed to clarify this point has identified homogeneous 

individual rights as those interests of the single user or consumer (damages 

deriving from a defective product, from non-performance of a contract, from 

incorrect commercial practices) that share an analogous basis regarding 

multiple subjects. 

The requirement of homogeneity is based on a common foundation: the 

presence of a substantial assimilability of the various claims relative to the 

injured right. 

Regarding instead identical rights, the identity is subject to the judge’s 

consideration; if he does not recognise the case at bar, he declares the class 

action inadmissible. 

Doctrine has repeatedly shown how the use of the word “identical” would 

risk excessively restricting the sphere of the norm’s application if it is strictly 

interpreted. The identity of the legal positions means “complete equality,” 

and the occurrence of this circumstance - regarding the rights belonging to 

consumers - is rather rare. 

10. Which subjects are entitled to bring a class action or a group action 

(e.g. individuals, groups or other representative bodies)? 

Answer 10): 

Art. 140 bis considers not only consumers/users who suffer damages firsthand 

as legitimate plaintiffs to bring class actions but also the associations to 

whom the injured party grants powers and the committees of which the 

injured party belongs. 

11. Which subjects are the defendants in a class / group action? 

Answer 11): 

The defendants are companies. 

12. May a class / group action be brought in the context of criminal 

proceedings concerning facts which involve also a civil liability? 

Risposta 12): 

Currently there are no legal connections between the class action and the 

criminal process. 

13. May a class / group action be brought by foreigners or non 

residents?



Answer 13): 

Yes, foreign citizens or non-residents on the Italian territory can bring a class 

action. 

14. Are there rules to discipline possible “forum shopping”? 

Answer 14): 

Forum shopping is prevented in the following manner: 

The competent forum for class actions is the ordinary court of the capital city 

of the region where the defendant company has its registered office, which 

hears the case with a collective body, sitting en banc. 

The unification of jurisdiction for some contiguous regions is also provided 

for, with the result that there are only eleven courts called upon to judge class 

actions. 

15. Where a class / group action is filed with or approved by the Court, 

must potential claimants be informed of the action? If so, in which way 

(formal notification, advertising). 

Answer 15): 

Article 140 bis paragraph 9 provides that the judge, through an order with 

which the class action is admitted (certified), provides the terms and the 

modalities of the most opportune public notification to achieve the timeliest 

method of joining the injured parties to the class 

Because the class action is not re-presentable later by other injured parties, it is 

indispensible that the action be widely knowable, and that – therefore – the 

public notification be very diffused to assure the greatest number of interested 

parties can join within the established terms. 

Public notification is a condition for the prosecution of the claim. 

16. Is advertising the class / group action permitted? Are there 

particulars requirements or restrictions? 

Answer 16): 

Means of public notification of the class action are established by the judge in 

the order of admissibility.



17. What remedies are available to claimants (injunctions, declaratory 

relief, monetary compensation). 

Answer 17): 

Injured parties can obtain compensation for damages or restitution through 

the class action. 

18. Are representative bodies (public authorities, ombudsmen, 

organisations) entitled to start a class / group action? 

Answer 18): 

Yes, associations to which the consumer delegates authority or committees to 

which the consumer belongs have standing to sue. 

19. In which areas of law and/or under which circumstances is the class 

/ group action of representative bodies allowed? 

Answer 19): 

Class actions by consumer associations are allowed in all the circumstances in 

which a single consumer is permitted. 

20. What remedies are available where class / group actions are 

brought by a representative body? 

Answer 20): 

Remedies are the same as in the case where the suit is brought by an 

individual. 

II. PROCEDURAL ISSUES 

21. Are there time limits to bring a class/group action? 

Answer 21): 

Art. 140 bis, paragraph 9, letter b) provides that the court, by the order with 

which the action is admitted (certified), establishes a final date, not exceeding 

120 days from the deadline provided for public notification within which the



documents must be filed to join the class action must be deposited with the 

office of the court’s clerk. 

22. Are the proceedings a trial by jury? 

Answer 22): 

No, the competent judge is the ordinary court, en banc, located in the city 

where the defendant has its legal office. 

23. Are the proceedings dealt with by a special Court? 

Answer 23): 

Italian law does not provide expressly for a special forum in the technical 

sense. Art. 140 bis paragraph 4 however does provide for the unification of 

jurisdictions for contiguous regions, identifying eleven courts called upon to 

hear class actions. 

24. How is the class or group certified? Is there a dead-line to join in 

the proceedings? 

Answer 24): 

The deadline for injured consumers/users to file the pleadings to join the 

class is established by the court, with an order that decides the admissibility 

(certifiability) of the action. 

This deadline is final and cannot exceed 120 days from the deadline provided 

for the execution of the public notification. 

25. Do the Courts select “test” or “model” cases to be tried? 

Answer 25): 

No 

26. Do the Courts determine issues of law or fact to be preliminary 

decided? 

Answer 26): 

The class action is submitted to the preliminary judgment of admissibility 

(certifiability). After the first hearing, “the court decides the admissibility of 

the claim with an order” based on the following criteria:



1) The manifest unfoundedness of the claim. 

2) The conflict of interests. 

3) The non-recognition of the identity of the individual rights defendable by 

the class action. 

4) Suitability of the claimant. 

27. Are there case management procedures? 

Answer 27): 

The order by which the court admits (certifies) the class action governs both 

the substantive and the procedural development of the class action. 

It establishes the terms and means of public notification so that all interested 

consumers are notified and can evaluate whether to join. 

“It defines the character of the individual rights subject to the decision, 

explaining the criteria by which those who ask to join are included in the class 

or must be excluded from the case.” 

It establishes the deadline for joining the action by other injured 

consumers/users. 

Last, the admission (certification) order governs the organizational 

management of the collective action, dictating the rules on procedure, through 

which the judge must assure “with respect to the debate, the fair, efficient and 

speedy management of the trial.” 

28. Are the parties allowed to submit expert evidence? Are the Courts 

allowed to appoint their own expert to assist them? 

Answer 28): 

The parties can present experts and the court can name official technical 

Consultants, following the usual rules dictated by the Code of Civil Procedure 

for the normal civil trial. 

29. What obligations of disclosing evidence (“discovery”) may be 

imposed to a party? 

Answer 29): 

In the Italian legal system there is no procedure analogous to “discovery,” 

typical of common law legal systems. 

30. Towards whom has the decision the effect of res iudicata?



Answer 30): 

The judgment has res judicata effect vis a vis all those who have joined the 

class action. 

The possibility for those who did not join to proceed in individual actions is 

preserved. 

31. How and when is the judicial decision enforceable? 

Answer 31): 

The judgment rendered at the end of the collective action is executed after 

180 (one hundred and eighty) days from the day of its publication. 

32. What kind of appeal is allowed against such a decision? 

Answer 32): 

Art. 140 bis provides first of all for the possibility to appeal against the order 

that concludes the judgment of admissibility (certifiability) by presenting a 

claim before the Court of Appeals within the deadline of 30 days from its 

disclosure or notification, whichever occurs. The Court of Appeals 

pronounces the answer within 40 days from the filing of the appeal, with an 

order handed down in closed session. 

The appeal brought against the order does not suspend the proceedings 

before the court. 

Second, it is possible to appeal to the Court of Appeals against a judgment 

that decides the case. The Court may even provide for the suspension of the 

executability of the judgment. 

33. What kind of damages are recoverable (bodily injuries, 

psychological damages, economic loss)? 

Answer 33): 

In general, damaged parties may be compensated for consequential damages 

and for lost profit. The former consists of the effective diminution of the 

damaged party’s assets; the latter is the loss of profits that would have been 

added to the assets of the damaged party if the damage had not occurred.



34. How are damages quantified? 

Answer 34): 

The court’s finding of liability establishes definitive amounts, based on an 

equitable evaluation, owed to anyone who has joined the action”, under 

Article 1226 of the civil code, or it “establishes the homogeneous criteria to 

calculate the establishment of said amounts.” 

35. May a party be condemned to punitive damages? 

Answer 35): 

These do not exist in our legal system; “Punitive Damages” belong to civil law 

jurisdictions. 

36. Can costs and expenses be recovered by the successful party? Does 

the “loser pay” rule apply? 

Answer 36) 

In the class action the “loser-pays” rule applies, therefore the losing party will 

be obligated to pay all court costs. However, in application of Article 96 civil 

code of procedure, the judge’s order of inadmissibility has the power to divide 

the expenses between the parties in a different way. 

If the suit is determined to be frivolous, the judge may additionally order the 

plaintiff of the class action to pay the costs and compensation for damages. 

The plaintiff also has the duty to publicize at his own expense the order of 

inadmissibility. 

37. Can the court fix a cap on the amount of costs recoverable? 

Answer 37) 

No maximum cap is provided in our legal system. 

38. Are contingent fees allowed? 

Answer 38): 

Yes



39. Is legal aid available? 

Risposta 39): 

Article. 140 bis provides that consumers and users that decide to join the class 

action may do so without a “counsel for the defense.” [i.e., for the plaintiff] 

40. How are damages divided among the members of a class / group? 

Answer 40): 

The court issues a judgment of liability with which “it establishes – according 

to Article 1226 of the Civil Code - the final amounts due to those who have 

joined the act shall be paid,” or “it shall establish the homogeneous 

calculation criterion to pay these sums.” 

41. Are there special rules for the settlement of claims? Is the approval 

of the Court required? 

Risposta 41): 

The Italian class-action law does not govern specific means of settlement 

between the parties to resolve the case or controversy. Ordinary remedies 

provided by the ordinary procedures therefore will be applied. 

42. Are statutory compensation schemes available for small claims? 

Answer 42): 

No statutory compensation scheme exists for small claims. 

43. Are alternative methods of dispute resolution (ADR) provided for 

class / group actions? 

Answer 43): 

No specific connection is provided for in our legal system between the class 

action and alternative methods of dispute resolution.

ADATTAMENTO E CONSERVAZIONE NEL DIRITTO 

ITALIANO DEL ‘CAMBIAMENTO CLIMATICO’ * 

GIAMPIERO DI PLINIO ** 

PARTE I. – LE STRATEGIE DELL’ADATTAMENTO 

1. – PROFILI INTRODUTTIVI 

1.1. – POSIZIONI POLITICHE E LIVELLO DI CONSAPEVOLEZZA 

Indipendentemente dalla scientificità o meno del legame di causalità tra azioni 

antropiche e cambiamenti climatici, e anche indipendentemente dalla certezza 

scientifica del concetto stesso di „cambiamento climatico‟ 1 , le questioni legate 

all‟adattamento hanno assunto negli ultimi anni importanza crescente 

nell'agenda politica italiana 2 , anche se con differenti visioni e approcci a 

seconda delle forze politiche al governo 3 , e anche se, coerentemente allo stile 

politico italiano, non è del tutto visibile lo spartiacque tra impegno sostanziale 

ed esigenze di immagine. 

In realtà, al di là delle dichiarazioni a effetto, in Italia manca una autonoma 

strategia complessiva delle politiche di risposta e di adattamento al Climate 

Change: azioni mirate all'adattamento ai cambiamenti climatici sono rinvenibili 

solo all'interno di alcune politiche settoriali, e da ciò derivano sovrapposizioni 

e azioni parallele e spesso non coordinate tra i vari soggetti pubblici all'interno 

delle rispettive competenze (ministeri, enti locali, autorità tecniche), per di più 

funzionali in genere al recepimento di indirizzi eterodiretti di origine 

* Il presente lavoro, alla cui stesura hanno collaborato Gianluca Bellomo e Ferdinando Franceschelli, 

costituisce una rielaborazione aggiornata della versione in lingua italiana del secondo Report italiano al 

Congresso dell‟IACL - International Academy of Comparative Law, Washington 2010 (il primo Report, 

affidato alla Prof. Barbara Pozzo, riguarda gli aspetti di «prevenzione» e «gestione»). A Gianluca Bellomo si 

devono, in particolare, i paragrafi 2, 2.1, 2.2, 2.3, 2.4, 2.5 della Parte I; a Ferdinando Franceschelli i paragrafi 

1.2, 1.3, 1.4, della Parte I e 1.1, 1.2 della Parte II. 

** Giampiero Di Plinio è Professore di Istituzioni di Diritto Pubblico alla Facoltà di Economia dell‟Università 

degli Studi di Chieti. 

1 Su cui per primo quadro d'insieme v. A. Lanza, Il cambiamento climatico, Bologna, Il mulino, 2000. 

2 Il dibattito parlamentare su tali tematiche ha evidenziati posizioni differenziate, talora anche profondamente 

(cfr. XV Legislatura - Relazione dell'VIII commissione sulle tematiche relative ai cambiamenti climatici, in 

); più di recente l'intervento di On. G. Fini presidente della Camera dei Deputati in data 12.06.2009 

in occasione del VI forum parlamentare sui cambiamenti climatici dei Paesi del G8+5, in 

; ma anche l'intervento del 

Ministro dell'Ambiente S. Prestigiacomo in occasione del G8 Ambiente tenutosi a Siracura il 22, 23 e 24 aprile 

2009, in e che ha prodotto la c.d. "Carta di Siracusa" sulla biodiversità che 

impegna i partecipanti su una serie di azioni specifiche su biodiversità e clima. 

3 «Cambiata la maggioranza di Governo, lo Schema di PNA 2008-2012, - il cosiddetto PNA II, - già proposto 

alla consultazione nel giugno 2006, e` stato a lungo discusso e rinegoziato tra Ministero dell‟Ambiente e 

Ministero dello Sviluppo economico, fino alla definitiva versione approvata con D.M. 18 dicembre 2006, 

pubblicata in G.U. il 13 febbraio 2007, e approvato dalla Commissione europea, su cui cfr. A. MURATORI, 

Protocollo di Kyoto: senescenza precoce?, in Ambiente e Sviluppo, Milano, Ipsoa, 4/2007, 326.



sovranazionale piuttosto che al perseguimento di autonome iniziative 

nazionali o locali. 

In sostanza, le politiche di adattamento ai cambiamenti climatici hanno 

trovato prevalente sviluppo nel settore della protezione della costa, in 

agricoltura e nella lotta alla desertificazione. Il Ministero dell'Ambiente, della 

Tutela del Territorio e del Mare (MATTM) è responsabile per le misure 

nazionali di adattamento relative agli impatti sulla biodiversità, sulle riserve 

naturali, sull'ambiente marino e sulle valutazioni di impatto ambientale. 

In Italia esistono solo poche valutazioni economiche sull'adattamento agli 

effetti dei cambiamenti climatici e comunque sempre inerenti specifici siti. 

Molteplici azioni sono state intraprese solo di recente per l'adeguamento ai 

cambiamenti climatici. 

Il MATTM ha organizzato la Conferenza nazionale sul cambiamento climatico, oltre 

ad una serie di workshop preparativi incentrati sulle situazioni a maggior 

criticità in ambito nazionale, così come le problematiche inerenti la 

desertificazione, l'erosione e gli allagamenti di aree costiere, la perdita di 

ghiacciai e di copertura nevosa, i rischi idro-geologici, e le problematiche 

legate all'area idrografica del fiume Po. 

La Conferenza ha analizzato le problematiche relative alle modifiche dei livelli 

di vulnerabilità derivanti dai cambiamenti climatici con particolare attenzione 

alle opzioni di adattamento disponibili ed ha proposto un manifesto per 

l'adattamento sostenibile e per la sicurezza ambientale, invitando alla 

predisposizione di strategie di adattamento nazionale, regionale e locale, 

attraverso la proposta di tredici azioni per l'adattamento sostenibile che 

possano essere implementate su base prioritaria 4 . 

Peraltro le preoccupazioni delle ricadute negative sulla competitività dei 

sistemi industriali nazionali derivanti dai costi necessari per il perseguimento 

degli obiettivi di riduzione d'emissione dei gas serra restano tangibili e attuali 5 . 

Più in generale va notato che i settori industriali sui quali si è deciso di 

intervenire più massicciamente, nel quadro di una strategia di tutela della 

competitività, sono quello termoelettrico e della raffinazione essendo quelli 

4 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change (cur. Ministero 

dell`Ambiente e della Tutela del Territorio e del Mare), 2007 (rivisto e ripresentato il 12 Giugno 2008), p. 

14/16 (reperibile in ). 

5 «But tempers flared at the quarterly European Council in Brussels, with Silvio Berlusconi, the Italian Prime 

Minister, clearly furious at the pressure being applied. During a stand-up row behind the scenes, he told Mr 

Sarkozy that the targets would crucify Italian industry. 

“Our businesses are in absolutely no position at the moment to absorb the costs of the regulations that have 

been proposed,” Mr Berlusconi said later. 

Donald Tusk, the Polish Prime Minister, said: “We don‟t say to the French that they have to close down their 

nuclear power industry and build windmills, and nobody can tell us the equivalent.” 

In an extraordinary break with EU protocol, both leaders said that they did not have to stick to the deal 

because neither had been in office when it was signed by their predecessors in March 2007», in 

. 

Più di recente durante il consiglio dei ministri dell'ambiente europeo tenutosi nel mese di ottobre 2009, l'Italia 

ha chiesto l'inserimento del principio di "comparabilità degli sforzi" tra i paesi sviluppati.

Giampiero Di Plinio 

Adattamento e conservazione nel diritto italiano del „cambiamento climatico‟ 

meno esposti alla concorrenza internazionale rispetto agli altri comparti 

manifatturieri. Si noti che si tratta proprio di quei settori in cui è più probabile 

l'esternalizzazione dei maggiori costi ambientali imposti, con una conseguente 

traslazione di questi sui consumatori finali 6 . 

1.2. – LA PARTECIPAZIONE ITALIANA A PROGRAMMI E STRATEGIE 

SOVRANAZIONALI 

Come è stato già osservato, la politica nazionale in materia di adattamento ai 

cambiamenti climatici è fortemente etero diretta in senso verticale, a causa 

dall'adesione dell'Italia ad una serie di fonti sovranazionali. 

Premesso che la comunità scientifica internazionale è principalmente orientata 

nel riconoscere la sussistenza dei cambiamenti climatici e la loro origine 

antropogenica, in particolare a causa delle emissioni di gas ad effetto serra 

(GHG), al fine di mitigare gli effetti dei cambiamenti climatici e di procedere 

ad un adattamento rispetto alle trasformazioni in corso ed avvenute, si è 

scelto, a livello internazionale, un approccio che prevede sforzi ed azioni 

congiunte; in particolare è stata scelta la strada degli accordi internazionali, che 

consente di dettare una normativa di base comune a tutti gli Stati che 

aderiscano all‟accordo. 

In quest‟ottica il 9 maggio 1992 è stata adottata a New York la UNFCCC - 

Convenzione quadro delle Nazioni Unite sui cambiamenti climatici 7 , entrata in 

vigore il 21 marzo 1994, alla quale hanno aderito fino ad oggi 194 Stati tra cui 

l‟Italia, con legge di ratifica ed esecuzione n°65 del 15 gennaio 1994 8 . 

La UNFCCC è stata successivamente integrata e modificata da un Protocollo 

addizionale, il Protocollo di Kyoto 9 dell‟11 dicembre 1997, entrato in vigore il 

16 febbraio 2005, al quale hanno aderito fino ad oggi 191 Stati tra cui l‟Italia, 

con legge di ratifica ed esecuzione n°120 del 1° giugno 2002 10 . 

Lo scopo principale della UNFCCC è indicato all‟art. 2 e consiste nell‟ottenere 

la stabilizzazione della concentrazione di GHG nell‟atmosfera ad un livello 

che sia idoneo a prevenire una pericolosa interferenza antropogenica con il 

clima; questo livello dovrebbe essere raggiunto entro uno spazio di tempo 

sufficiente a permettere all‟ecosistema di adattarsi naturalmente al 

cambiamento del clima, al fine di assicurare che la produzione di cibo non sia 

minacciata ed al fine di dar avvio ad un processo di sviluppo economico 

6 A. MURATORI, op.cit. 

7 UNFCCC: United Nations Framework Convention on Climate Change; il testo della Convenzione è reperibile in 

. 

8 In GU n°65 del 29 gennaio 1994. 

9 Kyoto Protocol to the United Nations Framework Convention on Climate Change; il testo del Protocollo è reperibile in 

. 

10 In GU n°142 del 19 giugno 2002.



sostenibile. Ai sensi della Convenzione, i governi degli Stati membri sono 

tenuti a raccogliere e condividere le informazioni sulle emissioni di GHG, le 

politiche nazionali e le buone prassi, ad avviare strategie nazionali per 

affrontare le emissioni di gas serra e di adattamento agli impatti previsti, 

compresa la fornitura di un sostegno finanziario e tecnologico ai Paesi in via 

di sviluppo; a collaborare nel predisporre strumenti di adattamento rispetto 

agli impatti dei cambiamenti climatici. 

Con il Protocollo di Kyoto viene stabilito che gli Stati membri devono 

raggiungere i loro obiettivi di riduzione delle emissioni in primo luogo 

attraverso misure nazionali. Tuttavia, il Protocollo offre loro un ulteriore 

strumento per conseguire tali obiettivi, attraverso l‟utilizzo di tre meccanismi 

flessibili: a) lo scambio di quote di emissione (ET – Emissions Trading, anche 

noto come “carbon market”) previsto dall‟art. 17; il meccanismo di sviluppo 

pulito (CDM – Clean Development Mechanism) previsto dall‟art. 12; la messa in 

opera congiunta (JI - Joint Implementation) previsto dall‟art. 6. 

Indipendentemente dagli aspetti toccati dalla UNFCCC e dal Protocollo di 

Kyoto più attinenti al tema della “mitigazione” dei cambiamenti climatici, va 

segnalato un importante contributo che essi danno alle politiche di 

“adattamento” rispetto agli effetti negativi già cagionati dal mutamento del 

clima nonché a quelli che si registreranno in futuro. 

La Convenzione, in particolare, impegna tutte le Parti ad attuare strumenti che 

consentano l‟adattamento, includendovi le forme di cooperazione tra Stati, in 

particolare per quel che riguarda i rapporti con i Paesi in via di sviluppo; tra le 

misure attinenti alle disposizioni della Convenzione vi sono quelle sui 

finanziamenti, quelle sul trasferimento di tecnologie e quelle sull‟assistenza 

tecnica e scientifica 11 . 

Tra le attività svolte in seno alla UNFCCC in tema di adattamento va in primo 

luogo segnalato il potenziamento delle azioni di adattamento come parte del 

cd. Piano d‟Azione di Bali, sotto l‟egida di un gruppo di lavoro ad hoc 12 : il 

piano d'azione di Bali, adottato in occasione del COP-13 13 nel 2007, individua 

nell'adattamento una delle componenti chiave necessarie per una risposta più 

decisa nei confronti dei cambiamenti climatici, al fine di consentire 

l'attuazione piena, effettiva e duratura della UNFCCC attraverso un‟azione di 

cooperazione a lungo termine. In secondo luogo, va menzionato il 

programma di lavoro di Nairobi sugli impatti, la vulnerabilità e l‟adattamento 

ai cambiamenti climatici, che mira a favorire le iniziative di adattamento, in 

particolare negli Stati insulari e nei Paesi in via di sviluppo 14 . Questi ultimi 

11 Cfr. il paper Adaptation assessment, planning and practice: an overview from the Nairobi work programme on impacts, 

vulnerability and adaptation to climate change (cur. UNFCCC), 2010, p. 15. 

12 Si tratta dello “Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA)”. 

13 COP-13: tredicesima Conferenza delle Parti dell‟UNFCCC, tenutasi a Bali nel mese di dicembre 2007. La 

COP è l‟organo supremo di decisione, gestione e controllo della UNFCCC; si tratta di un organo collegiale 

costituito dall‟assemblea dei rappresentanti di tutti i Paesi che hanno ratificato la UNFCCC. 

14 Cfr. .



sono destinatari anche di ulteriori misure adottate nell‟ambito della stessa 

UNFCCC, tra le quali il National Adaptation Programmes of Action (NAPA). 

Osservazioni di carattere diverso concernono l‟appartenenza dell‟Italia 

all‟IPCC. L‟Italia è Paese membro dell‟IPCC 15 , organo intergovernativo 

istituito dall‟UNEP 16 e dal WMO 17 che svolge una attività fondamentale, a 

livello mondiale, di valutazione sia delle informazioni scientifiche, tecniche e 

socio-economiche relative al rischio di origine antropica del cambiamento 

climatico, sia delle sue ripercussioni e della possibilità di intraprendere 

strategie di adattamento 18 e di mitigazione. L'IPCC svolge il proprio ruolo 

mediante la preparazione di report ad intervalli regolari. Di particolare 

importanza, a tal proposito, è il lavoro svolto presso l‟IPCC dal Working Group 

II: nei suoi rapporti questo organo valuta gli aspetti scientifici, tecnici, 

ambientali, economici e sociali della vulnerabilità (sensibilità ed adattabilità) al 

cambiamento climatico dei sistemi ecologici, dei settori socio-economici e 

della salute umana, con particolare attenzione alle tematiche regionali settoriali 

ed intersettoriali 19 . 

Con il D.lgs 216/2006 così come modificato dal D.lgs. 51/2008, è stato 

istituto in Italia il “Comitato nazionale per la gestione della direttiva 2003/87 CE e per 

la gestione delle attività di progetto del Protocollo di Kyoto”, con la funzione di autorità 

nazionale competente nonché di Focal Point per l‟IPCC; l‟attività del Focal Point 

nazionale IPCC mira a porre in relazione l‟attività dell‟IPCC con le iniziative 

svolte dalla comunità scientifica nazionale e con le esigenze di divulgazione e 

comunicazione delle informazioni nei confronti dei cittadini. Il Focal Point 

Nazionale IPCC partecipa, peraltro, alle sessioni plenarie e agli incontri 

dell'IPCC e lo rappresenta nel proprio Paese. 

Per quel che riguarda le ulteriori iniziative italiane a livello sovranazionale e 

transfrontaliero, sono numerose le attività che incidono sull‟adattamento ai 

cambiamenti climatici, sia nel quadro della cooperazione multilaterale sia in 

quello della cooperazione bilaterale sia, infine, in quello della cooperazione 

scientifica e tecnologica. 

Tra il 2006 e il 2008 il MATTM 20 ha intrapreso molteplici progetti sia di 

cooperazione con i Paesi più industrializzati su questioni relative 

all‟adattamento ai cambiamenti climatici, sia di sostegno al trasferimento verso 

15 IPCC: Intergovernmental Panel on Climate Change. Cfr. . 

16 UNEP: United Nations Environment Programme. 

17 WMO: World Meteorological Organization. 

18 L‟IPCC fornisce una interpretazione “ufficiale” ed univoca del termine “adattamento”, definendolo come 

un “adeguamento dei sistemi naturali o umani rispetto ad un ambiente nuovo o cambiato. L‟adattamento ai 

cambiamenti climatici si riferisce ad una regolazione dei sistemi naturali o umani in risposta a stimoli climatici 

reali o previsti o ai loro effetti, che consenta di attenuare i danni o di sfruttare possibili benefici. Possono 

essere individuati vari tipi di adattamento, incluso l‟adattamento preventivo e quello reattivo, l‟adattamento 

pubblico e quello privato, nonché l‟adattamento autonomo e quello pianificato” (cfr. Glossary of terms used in the 

IPCC third assessment report, reperibile in . 

19 Cfr. . 

20 MATTM: Ministero dell‟ambiente, della tutela del territorio e del mare.



i Paesi meno sviluppati di tecnologie che consentano di affrontare in maniera 

più efficace le questioni relative all‟adattamento. In questo stesso periodo il 

MATTM ha erogato trenta milioni di euro per la cooperazione bilaterale e 

multilaterale con i Paesi in via di sviluppo, per iniziative legate ai cambiamenti 

climatici. Ciò è in linea con il trend dell‟impegno italiano nella cooperazione 

con tali Paesi, che, in termini nominali, ha portato a far registrare un aumento 

dell‟ODA 21 del 173% nell‟intervallo 2001-2008 22 . 

In particolare, la cooperazione è stata sviluppata con UNESCO, UNIDO 23 , 

FAO, REC-CCE 24 , GEF 25 , Banca Mondiale, IUCN 26 , UNEP 27 , MAP 28 , BEI 29 

e BERS 30 . 

La comunicazione NC5 depositata dall‟Italia presso l‟UNFCCC nel 2010 

contiene un elenco delle principali iniziative di questo genere 31 , alcune delle 

quali inerenti specificamente ad attività di adattamento ai cambiamenti 

climatici. Possono essere menzionati, ad esempio: 

- il programma con l‟UNESCO intitolato “Water Programme for Environmental 

Sustainability - Towards adaptation measures to human and climate change impacts” 

(2007-2010); 

- il progetto con la FAO intitolato “Communication for Sustainable Development 

Initiative – CSDI” (2008); 

- alcuni progetti attivati tramite lo Italian Trust Fund – ITF (istituito nel 2001 

come contributo del MATTM diretto al REC-CEE); questi progetti, tra i quali 

quello intitolato “Adaptation to the Consequences of Climate Change Process” 

prevedono apposite iniziative di adattamento al cambiamento climatico; 

- alcuni progetti implementati con la FAO e la IUCN, nell‟ambito delle due 

partnership globali denominate “Sustainable Development in Mountain Regions” e 

“Island biodiversity conservation and sustainable development”; tra essi, la “IUCN 

Climate Change Initiative”; 

- la “Task Force on Extreme Weather Events” (2008-2009), istituita sulla base del 

Protocollo del 1999 sull‟acqua e la salute (Protocollo addizionale alla 

Convenzione dell‟UNECE 32 del 1992 sulla protezione e l‟uso dei corsi d‟acqua 

transfrontalieri e dei laghi internazionali). 

21 ODA: (Official Development Assistance) è una statistica compilata dal DAC (Development Assistance Committee), 

organo istituito in seno all‟OECD-OCSE (Organizzazione per la cooperazione economica e lo sviluppo). 

22 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, 2010, p. 157. 

Reperibile in . 

23 UNIDO: United Nations Industrial Development Organization. 

24 REC-CEE: Regional Environmental Centre for Central and Eastern Europe. 

25 GEF: Global Environment Facility. 

26 IUCN: International Union for Conservation of Nature. 

27 UNEP: United Nations Development Programme. 

28 MAP: Mediterranean Action Plan. 

29 BEI: Banca europea per gli investimenti. 

30 BERS: Banca europea per la ricostruzione e lo sviluppo. 

31 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit., p.155. 

32 UNECE: United Nations Economic Commission for Europe.



Molteplici sono poi le iniziative che l‟Italia ha intrapreso sulla base della 

cooperazione internazionale diretta con altri Paesi, tra le quali si possono 

ricordare i MoUs 33 in campo ambientale con i Paesi dell‟Europa Orientale e 

dei Balcani (ad esempio i MoUs che riguardano – spesso incidentalmente – la 

gestione dell‟acqua, tema che può essere fondamentale in determinate 

politiche di adattamento ai cambiamenti climatici); il programma di 

cooperazione ambientale con la Cina; il progetto “Niger, Benin, Burkina - 

Regional Programme W/ECOPAS Park”; il programma di cooperazione su 

cambiamenti climatici e ambiente con 14 Paesi appartenenti al South Pacific 

Small Islands Developing States (South Pacific SIDS); i programmi di ricerca 

scientifica e trasferimento di tecnologie (R&D phase of key technologies) in Asia, 

nei Balcani e nel Mediterraneo; l‟accordo del 2001 tra Italia e USA sulle 

scienze e sulle tecnologie riguardanti i cambiamenti climatici (con impegno da 

parte di entrambe le presidenze dei rispettivi esecutivi di collaborare nella 

ricerca sulle scienze e sulle tecnologie riguardanti i cambiamenti climatici 34 . 

Tale impegno in occasione dell'incontro tenutosi il 16 giugno 2003 a 

Washington, ha dato luogo ad una formale dichiarazione congiunta di Stati 

Uniti ed Italia sulle scienze e sulle tecnologie riguardanti i cambiamenti 

climatici). 

Un‟ulteriore iniziativa, che si caratterizza per la sua natura prettamente 

politica, è quella che è sfociata nella cd. Carta di Siracusa sulla Biodiversità 35 , 

adottata il 24 aprile 2009 da parte dei Ministri dell‟ambiente del G8 di 

concerto con i Ministri di Australia, Brasile, Cina, Repubblica Ceca, Egitto, 

India, Indonesia, Messico, Repubblica di Corea, Sud Africa, Svezia, e con le 

Organizzazioni Internazionali partecipanti al meeting di Siracusa. Tra i punti 

salienti della Carta vi è l‟obiettivo di sviluppare linee politiche sinergiche che 

tengano in considerazione il contributo che la biodiversità e gli ecosistemi 

forniscono per l‟adattamento e la mitigazione del cambiamento climatico a 

livello locale, nazionale e globale, avendo ben presente che la biodiversità e i 

servizi legati all'ecosistema sono alla base del benessere dell‟uomo e risultano 

strategici per la regolazione del clima. 

1.3. – L‟ADATTAMENTO NELLE DINAMICHE DELL‟UNIONE EUROPEA 

L‟Italia, in quanto Paese membro dell‟Unione europea, partecipa alle iniziative 

dell‟Unione relative ai cambiamenti climatici. L‟Unione europea è 

particolarmente sensibile ai problemi del clima e si è attivata in maniera 

concreta per affrontarli, in modo particolare per mezzo di una apposita 

33 MoU: Memorandum of Understanding. 

34 Reperibile in 

. 

35 Fonte: .



“azione europea”. L‟importanza che assume il tema del clima nell‟attività 

dell‟Unione trova una chiara conferma nella recente decisione di istituire un 

organo ad hoc: il 17 febbraio 2010 la Commissione ha infatti creato la 

Direzione Generale “climate-action”, ed ha proceduto alla nomina del 

Commissario europeo per la climate-action 36 . 

L‟UE ha, inoltre, partecipato ai negoziati sfociati nell‟adozione della 

Convenzione UNFCCC, ha provveduto alla approvazione della Convenzione 

stessa per mezzo della decisione 94/69/CE del Consiglio del 15 dicembre 

1993 37 , ed ha altresì approvato il Protocollo di Kyoto con decisione 

2002/358/CE del Consiglio del 25 aprile 2002 38 . Per quel che riguarda il 

futuro dell‟azione globale contro il clima, in vista della imminente scadenza, 

nel 2012, dell‟operatività del Protocollo di Kyoto, l‟Unione Europea, in 

occasione della Conferenza ONU sui cambiamenti climatici tenutasi a 

Copenhagen nel dicembre 2009, ha offerto il suo sostegno in favore del 

cosiddetto “accordo di Copenaghen”, atto che costituisce il primo passo verso 

un trattato globale giuridicamente vincolante che sostituisca il Protocollo di 

Kyoto a partire dal 2013 39 . 

Vista la stretta correlazione tra l‟attività svolta dall‟Unione e quella svolta in 

seno all‟ONU (in particolare nell‟ambito dell‟UNFCCC), è opportuno fare un 

breve cenno alla normativa comunitaria in tema di scambio di quote di 

emissione, che è stata adottata in conformità alle disposizioni contenute nel 

Protocollo di Kyoto in merito al meccanismo flessibile noto come Emissions 

Trading. 

L‟UE ha, infatti, emanato una serie di atti vincolanti che hanno dato vita ad un 

proprio sistema di Emissions Trading 40 il quale ha il suo fondamento nella 

direttiva 2003/87/CE (cd. “direttiva Emissions Trading”) 41 , così come emendata 

dalla direttiva 2004/101/CE (cd. “direttiva Linking”) 42 e recentemente 

modificata dal cd. “Pacchetto Energia” del 2009, costituito quest‟ultimo, a sua 

volta, da quattro atti comunitari 43 : la direttiva 2009/29/CE (relativa allo 

“E.T.S. – Emissions Trading System”); la decisione 406/2009/CE (cd. “Effort 

sharing”), la direttiva 2009/28/CE (relativa all‟uso di energia proveniente da 

fonti rinnovabili); ed infine la direttiva 2009/31/CE (relativa al “C.C.S. – 

Carbon Capture and Storage”). In conformità ad alcuni degli adempimenti 

36 Cfr. il Press Release IP/10/164 del 17 febbraio 2010. Reperibile in 

, nel quale si dà atto della creazione della “DG climate action” e della “DG energia”. 

37 In GUUE serie L n°33 del 7 febbraio 1994. 

38 In GUUE serie L n°130 del 15 maggio 2002. 

39 Fonte: . 

40 POZZO B. (a cura di), La nuova direttiva sullo scambio delle quote di emissione, 2003, Giuffrè Editore, Milano; 

JACOMETTI V., La direttiva Emissions Trading e la sua attuazione in Italia: alcune osservazioni critiche al termine della 

prima fase, in Rivista Giuridica dell‟Ambiente, 2008, n°2, p. 273-289; GERBETI A., La nuova direttiva europea sullo 

scambio delle quote di emissione: luci ed ombre, in Rivista giuridica dell‟ambiente, 2010, n°1, p. 183-189. 

41 In GUUE serie L n°275 del 25 ottobre 2003. 

42 In GUUE serie L n°338 del 13 novembre 2004. 

43 Tutti in GUUE serie L n°140 del 5 giugno 2009.



prescritti dal sistema dell‟Emissions Trading europeo, è stato adottato in Italia 

un Inventario nazionale delle emissioni 44 nonché un Registro nazionale delle 

emissioni 45 . 

Tra gli altri atti di fonte comunitaria che toccano l‟ambito dei cambiamenti 

climatici riveste particolare importanza anche la normativa in tema di gas 

fluorurati ad effetto serra: con il regolamento n°842/2006/CE (cd. 

regolamento F-Gas) 46 l‟Unione europea ha inteso attenersi a quanto stabilito 

dal Protocollo di Kyoto anche in relazione alla riduzione di emissioni di tali 

tipologie di gas. 

Il pacchetto clima-energia, in particolare, prevede l‟adozione di criteri che 

consentano di orientarsi verso un futuro sostenibile con una economia a bassa 

emissione di anidride carbonica e ad elevata efficienza energetica, mediante il 

cosiddetto “sistema 20-20-20”, che prevede: 

- la riduzione delle emissioni gas ad effetto serra del 20% (30% se si stipulano 

accordi internazionali), rispetto ai livelli del 1990; 

- la riduzione del consumo di energia del 20% attraverso l‟aumento 

dell‟efficienza energetica; 

- il raggiungimento della quota del 20% di consumo di energia proveniente da 

fonti rinnovabili. 

La copiosa normativa comunitaria in tema di emissioni tocca, tuttavia, solo 

indirettamente il tema dell‟adattamento ai cambiamenti climatici, essendo più 

che altro incentrata sul tema della mitigazione mediante l‟abbattimento delle 

emissioni di gas ad effetto serra. 

Invece, sullo specifico tema dell‟adattamento ai cambiamenti climatici, il 1° 

aprile 2009 la Commissione europea ha adottato il Libro Bianco dal titolo 

“L'adattamento ai cambiamenti climatici: verso un quadro d'azione europeo” 47 . Il Libro 

Bianco si basa sulle consultazioni ad ampio raggio che, nel 2007, hanno fatto 

seguito al Libro Verde dal titolo “L'adattamento ai cambiamenti climatici in Europa 

– quali possibilità di intervento per l'UE” 48 , e sui successivi studi che hanno 

condotto ad una identificazione delle azioni da intraprendere nel breve 

periodo. 

44 Inventario nazionale delle emissioni: con la L. 120 del 1° giugno 2002, di ratifica ed esecuzione del 

Protocollo di Kyoto, è stato previsto l‟inventario nazionale delle emissioni (istituito successivamente con 

l'art.14/bis del D. lvo. 216/2006, che recepisce le direttive 2003/87/CE e 2004/101/CE, c.d. ETS) che 

raccoglie i dati delle emissioni in aria dei gas-serra, delle sostanze acidificanti ed eutrofizzanti, dei precursori 

dell‟ozono troposferico, del benzene, del particolato, dei metalli pesanti, degli idrocarburi policiclici aromatici, 

delle diossine e dei furani. 

45 Registro nazionale delle emissioni e delle quote di emissioni: con l'art. 14 del D. Lvo. 216/2006 (che 

recepisce le direttive 2003/87/CE e 2004/101/CE, cd. ETS) è stato istituito presso l'APAT (attuale ISPRA) il 

Registro nazionale delle emissioni e delle quote di emissioni. 

46 In GUUE serie L n°161 del 14 giugno 2006. 

47 Reperibile in . 

48 Reperibile in .



Nel Libro Bianco l‟azione europea è interpretata come complementare 

rispetto a quella degli Stati membri ed è previsto che parte delle risorse sia 

destinata ai Paesi in via di sviluppo. 

Lo scopo del sistema di adattamento che vi è disciplinato è quello di ottenere 

un miglioramento della capacità di fronteggiare gli impatti derivanti dai 

cambiamenti climatici. Il sistema rispetta il principio di sussidiarietà e sostiene 

gli obiettivi globali dell'Unione europea sullo sviluppo sostenibile. 

Per supportare la cooperazione e l‟adattamento e con il fine di portare avanti 

questo sistema, la Commissione intende istituire un gruppo direttivo 

sull‟impatto e l‟adattamento al cambiamento climatico (IASG 49 ) e costituire un 

segretariato. Questo gruppo sarà composto da rappresentanti degli Stati 

membri dell‟UE coinvolti nella formulazione di programmi di adattamento 

nazionali e regionali e si consulterà con i rappresentanti della società civile e 

della comunità scientifica. 

Il Libro Bianco sottolinea, inoltre, la necessità di promuovere strategie che 

perseguano un aumento della capacità di resistere agli effetti dei cambiamenti 

climatici sia nell‟uomo (per salvaguardarne la salute) sia nei terreni (per 

salvaguardarne i livelli di produttività); in tal senso acquista importanza 

centrale la corretta gestione delle risorse idriche. E‟ proprio per questo 

motivo che, nel mese di dicembre 2009, gli amministratori degli impianti idrici 

dell‟UE hanno adottato un documento 50 di orientamento in materia di 

adattamento ai cambiamenti climatici nella gestione delle acque per garantire, 

tra l‟altro, che i piani di gestione dei bacini idrici siano strutturati in maniera 

tale da non subire ripercussioni dal cambiamento del clima. 

Su questo specifico tema la Commissione si è impegnata a presentare entro il 

2012 un rapporto intitolato “Blueprint to Safeguard European Waters” che, 

affiancato da un‟analisi dei bacini idrici, permetterà di revisionare la Strategia 

sulla scarsità d'acqua e la siccità lanciata dalla Commissione nel 2007 51 , 

rendendola più confacente alle esigenze determinate dai cambiamenti 

climatici 52 . 

Nell‟ambito della propria attività di impulso e di negoziazione nell‟UNFCCC, 

l‟Unione europea sta attualmente lavorando con altri Stati per far sì che 

nell‟accordo che andrà a sostituire dal 2013 il Protocollo di Kyoto, oltre alle 

misure finalizzate alla mitigazione dei cambiamenti climatici (grazie ai tre 

“meccanismi flessibili” contemplati nel Protocollo) vengano introdotte anche 

disposizioni che prevedano iniziative di adattamento ai cambiamenti climatici. 

49 IASG: Impact and Adaptation Steering Group. 

50 Common implementation strategy for the water framework directive (2000/60/CE) Guidance document n. 24 – River basin 

management in a changing climate, 2009. Reperibile in . 

51 Cfr. la comunicazione della Commissione intitolata “Affrontare il problema della carenza idrica e della siccità 

nell'Unione europea” [COM(2007)414], del 18 luglio 2007. Reperibile in . 

52 Fonte: .



La linea proposta, in tal senso, dalla Commissione è descritta nella 

comunicazione intitolata “Towards a comprehensive climate change agreement in 

Copenhagen” 53 nella quale si pone l‟accento su alcuni aspetti fondamentali 

inerenti ai cambiamenti climatici, tra i quali l‟esigenza generalizzata di 

introdurre misure di adattamento, l‟impegno ad inserire sistematicamente 

l‟adattamento nelle strategie nazionali, e l‟esigenza di migliorare gli strumenti 

per definire e attuare le strategie di adattamento. 

1.4. – PROGETTI E INIZIATIVE DI ADATTAMENTO IN ITALIA 

Nell‟esaminare le misure di adattamento intraprese in Italia, è utile far 

riferimento sia alle “comunicazioni nazionali” che l‟Italia è tenuta a 

trasmettere alla COP presso l‟UNFCCC 54 , sia ai “rapporti” mediante i quali il 

gruppo esperto di revisione (ERT) istituto in seno all‟UNFCCC, fornisce di 

volta in volta un‟approfondita e obiettiva analisi di ciascuna comunicazione 

nazionale. 

Nella terza comunicazione nazionale (NC3) 55 trasmessa alla COP nel 2003 56 , 

l‟Italia indicava quali misure di adattamento ai cambiamenti climatici avesse 

intrapreso fino a quel momento. Esaminata la NC3 italiana, l‟ERT, presentava 

un rapporto 57 nel quale dava preliminarmente atto che in Italia mancasse un 

programma nazionale per l‟adattamento ai cambiamenti climatici e che, 

tuttavia, vi fosse una moltitudine di norme che toccavano, da vari punti di 

vista, le tematiche dell‟adattamento e della vulnerabilità. In questo contesto 

l‟ERT poneva l‟accento, in particolare, su alcune iniziative che l‟Italia aveva 

adottato nell‟ottica dell‟adattamento, tra le quali il Piano Nazionale d‟Azione 

per combattere la desertificazione e la siccità (del 1999), e l‟approvazione del 

Progetto MOSE (nel 2003) finalizzato ad attenuare gli effetti pregiudizievoli 

sulla città di Venezia derivanti dall‟innalzamento del livello del mare. 

Nel successivo rapporto 58 dell‟ERT del 2009 nel quale veniva analizzata la 

quarta comunicazione nazionale italiana (NC4) 59 del 2007/2008, il gruppo di 

53 Reperibile in . 

54 Tutti i Paesi che hanno aderito e ratificato la Convenzione UNFCCC sono tenuti a presentare 

periodicamente alla COP, una “comunicazione nazionale” con la quale essi riferiscono sull‟attuazione degli 

impegni assunti e sul previsto andamento per il futuro in relazione alle misure già prese e che si intendono 

intraprendere; contestualmente forniscono gli “inventari nazionali delle emissioni di gas serra”. 

55 Cfr. Third National Communication under the UN Framework Convention on Climate Change. Reperibile in 

. 

56 Si ricordi che nel medesimo anno (2003) l‟Italia ha ospitato a Milano la COP-9, nel corso della quale sono 

stati, tra l‟altro, presentati progetti di riduzione delle emissioni legate alle attività di 

afforestazione/riforestazione (A/R projects). 

57 Cfr. Report of the centralized in-depth review of the third national communication of Italy, 2004, p. 22-24. Reperibile in 

. 

58 Cfr. Report of the centralized in-depth review of the fourth national communication of Italy, 2009, p. 14-16. Reperibile in 

.



esperti dava atto dell‟elenco delle iniziative assunte dall‟Italia in tema di 

adattamento, evidenziando che esse prevedevano azioni di adattamento in vari 

settori, che spaziavano dal comparto agricolo a quello forestale, a quello 

energetico, alla difesa del suolo. 

Tuttavia l‟ERT aggiungeva nel rapporto che “le emissioni totali dell‟Italia nel 2007, 

escludendo il LULUCF 60 , sono state del 6,9% più alte rispetto a quelle dell‟anno base. 

Sulla scorta delle proiezioni presentate nel RDP 61 , l'Italia non raggiungerà l'obiettivo di 

Kyoto con le PaMs 62 previste. Quindi, l'Italia utilizzerà i meccanismi flessibili del 

Protocollo di Kyoto per acquistare l'equivalente di circa 17 Mt CO2 eq/anno 63 in crediti 

nel periodo 2008-2012, sebbene anche questo non sarà sufficiente a colmare il divario 64 ”. 

Dall‟esame delle comunicazioni nazionali e dei rapporti cui si è fatto appena 

cenno emerge che le iniziative assunte in Italia in tema di adattamento 

risentono della mancanza di un piano unitario; le misure adottate dal nostro 

Paese, a prescindere da una valutazione sulle loro caratteristiche, hanno a volte 

carattere frammentario e disorganico e, soprattutto, sono di solito misure 

eterodirette rispetto al tema del cambiamento climatico: esse solo 

indirettamente perseguono l‟adattamento ai cambiamenti climatici, essendo 

state progettate in origine per tutelare l‟ambiente e la salute su piani del tutto 

diversi da quello del cambiamento climatico. 

Ciò trova una parziale conferma anche nella recente comunicazione nazionale 

(NC5) 65 che, il 17 marzo 2010, l‟Italia ha depositato presso la UNFCCC, nella 

quale si legge che “Nonostante l'attuale mancanza di una Strategia Nazionale di 

Adattamento (NAS), alcune misure di adattamento sono state già attuate nel quadro della 

protezione dell'ambiente, della prevenzione dai rischi naturali, della gestione sostenibile delle 

risorse naturali e della tutela della salute ...” e al contempo tali misure “... potrebbero 

rivelarsi vantaggiose anche per l'adeguamento ai cambiamenti climatici...” 66 . Subito di 

seguito, quanto ai settori che sono coperti da iniziative di adattamento, nella 

comunicazione NC5 si afferma che “... queste misure sono in genere volte più a 

ridurre la vulnerabilità rispetto all‟attuale variabilità del clima ed alle condizioni 

atmosferiche estreme (adattamento reattivo), anziché a predisporre ad affrontare i potenziali 

effetti avversi dei previsti cambiamenti climatici (adattamento attivo). L‟adattamento che è 

stato attuato risulta sviluppato perlopiù nel campo della salute umana, della protezione 

costiera, dell'agricoltura, della desertificazione e della protezione delle risorse idriche...”. 

59 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, 2007 (rivisto e 

ripresentato il 12 giugno 2008). Reperibile in . 

60 LULUCF: Land Use, Land-Use Change and Forestry (Uso del Suolo, variazioni dell‟uso del suolo e 

selvicoltura). 

61 RDP: report demonstrating progress (relazione sull‟andamento dei lavori). 

62 PaMs: policies and measures (politiche e misure). 

63 17 Mt CO2 eq/anno: 17 milioni di tonnellate equivalenti ad anidride carbonica per anno. 

64 Cfr. Report of the centralized in-depth review of the fourth national communication of Italy, 2009, p. 19 (reperibile in 

). 

65 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit. 

66 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit., p. 16.



Sebbene, dunque, non si tratti di solito di misure mosse dall‟esigenza di 

fronteggiare i cambiamenti del clima, ma che indirettamente conseguano 

anche questo effetto, va tuttavia riconosciuto che, secondo quanto affermato 

nella comunicazione NC5, l‟Italia, allo stato, è attiva in numerose iniziative che 

toccano, sotto il profilo dell‟adattamento, il settore agricolo 67 e della sicurezza 

alimentare, la biodiversità 68 e l‟ecosistema naturale, le zone costiere, la 

desertificazione, la pesca, la silvicoltura, la salute umana, le risorse idriche, le 

infrastrutture e l‟economia 69 . 

Qualche esempio, a questo punto, può essere utile per meglio comprendere 

quale sia la concreta portata di alcune iniziative di adattamento intraprese in 

Italia: 

- A) Piano nazionale per la lotta alla desertificazione. 

Il Programma nazionale d'azione per la lotta alla siccità e alla desertificazione, 

approvato dal CIPE nel 1999, ha previsto una serie di azioni volte sia a ridurre 

la vulnerabilità rispetto ai fenomeni di desertificazione legati ai cambiamenti 

climatici, sia a promuovere iniziative di adattamento. Il piano è affidato alle 

Regioni e alle Autorità di Bacino cui è attribuito il compito (e la responsabilità) 

di implementare specifiche misure agricole, civili e sociali, nonché di adottare 

programmi di supporto all'informazione, alla formazione ed alla ricerca nei 

settori della protezione del suolo, della gestione sostenibile delle risorse 

idriche, della riduzione dell‟impatto da attività produttive, del ripristino 

ambientale. 

Il Comitato nazionale per la lotta alla siccità e alla desertificazione, istituito 

con il Decreto del Consiglio dei ministri del 26 settembre 1997, ha nel 2005 e 

nel 2006 avviato alcuni progetti pilota nelle regioni più colpite dagli effetti 

derivanti dal mutamento del clima 70 . 

- B) Il progetto pilota condotto a Piana di Fondi 

La scelta della misura di adattamento più adeguata al caso di specie deve 

essere basata su una valutazione economica dell'area in questione: un esempio 

di uno studio condotto in questo senso è rappresentato dal progetto pilota 

67 In particolare con l‟implementazione del Piano nazionale di irrigazione a supporto del settore agricolo e con 

l‟introduzione in 14 regioni italiane della tematica del cambaimento climatico all‟interno dei propri Piani di 

sviluppo rurale (RDPs). 

68 In particolare ponendo le basi per la realizzazione di una Strategia nazionale sulla biodiversità (come previsto 

dalla CBD - Convenzione di Rio de Janeiro sulla diversità biologica che l‟Italia ha ratificato con L. 124 del 14 

febbraio 1994, e dal relativo Protocollo di Cartagena sulla biosicurezza, che l‟Italia ha ratificato con L. 27 del 

15 gennaio 2004) e dando attuazione agli strumenti di origine comunitaria quali, da un lato, ad esempio le 

direttive europee “Habitats” (direttiva 92/43/CEE) e “Birds” (direttiva 2009/147/CE che sostituisce la 

direttiva 79/409/CEE) che assieme hanno dato luogo alla rete di siti protetti denominata “Natura 2000”; 

dall‟altro le chance offerte dall‟accesso ai fondi dell‟UE, primo tra tutti il programma LIFE+ quale strumento 

finanziario per l‟ambiente. 

69 In particolare si segnala l‟attenzione rivolta all‟industria turistica legata agli sport invernali, a causa delle 

ripercussioni sul manto nevoso montano dovute all‟aumento di temperatura determinato dal cambiamento 

del clima. 

70 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, cit., p. 212.



condotto sulla Piana di Fondi, finalizzato allo sviluppo di un approccio 

metodologico che possa essere usato per le diverse tipologie costiere 71 . 

- C) Network sugli effetti delle onde di calore sulla salute umana 

Nel 2003 è stato istituito a livello nazionale un network per la prevenzione 

degli effetti delle onde di calore (ivi incluse quelle determinate dal 

cambiamento del clima) sulla salute umana, coordinato e finanziato dal 

Dipartimento Nazionale della Protezione Civile. In collaborazione con una 

banca dati centrale, il Dipartimento coordina una rete di esperti appartenenti 

al dipartimento di epidemiologia, alle autorità sanitarie locali ed alle agenzie 

regionali dell'ambiente e della protezione civile; inoltre a livello comunale sono 

stati istituiti centri locali di coordinamento. L'implementazione del progetto 

comprende lo sviluppo di un modello previsionale, l'individuazione di piani di 

intervento per ogni città, l'identificazione di reti delle organizzazioni e dei 

servizi che vanno coinvolti, ed infine l'esame dell'effettiva idoneità del sistema 

di riuscire a prevenire eccessi di mortalità. Il “Sistema Nazionale di 

Sorveglianza, previsione e di allarme per la prevenzione degli effetti delle 

ondate di calore sulla salute della popolazione” (HHWWS 72 ) è in continuo 

sviluppo 73 e la sua operatività si è estesa nel 2010 a 27 città italiane per il 

periodo che va dal 15 maggio al 15 settembre 2010 74 . 

- D) Conferenza nazionale italiana sul cambiamento climatico 

La Conferenza nazionale sul cambiamento climatico, promossa dal MATTM il 

12 e13 settembre 2007 75 , è stata incentrata in modo particolare sul tema 

dell‟adattamento, ed ha puntato ad avviare il processo di sviluppo di una vera 

politica nazionale di adattamento. 

Nel corso della Conferenza è stato rimarcato che le misure di mitigamento dei 

cambiamenti climatici necessitano di essere coordinate con le misure di 

adattamento; in particolare, a tal fine, è opportuno che le politiche 

economiche di settore, specialmente nell‟ambito delle norme e dei programmi 

di finanziamento per gli appalti pubblici di grandi dimensioni, prevedano 

misure decise in tema di adattamento. Da quanto è emerso nella Conferenza 

del 2007, sarebbe necessario implementate immediatamente delle misure di 

adattamento nell‟ambito delle politiche concernenti la protezione 

dell'ecosistema e della biodiversità (sia marina che terrestre), la gestione del 

71 Sul punto cfr. il paper di BREIL – CATENACCI – TRAVISI, Impatti del cambiamento climatico sulle zone 

costiere: quantificazione economica di impatti e di misure di adattamento – Sintesi di risultati e indicazioni metodologiche per la 

ricerca futura, 2007, reperibile in . 

72 HHWWS: Heat Health Watch Warning Systems. 

73 Cfr. Italian report on demonstrable progress under article 3.2 of the Kyoto Protocol (cur. MATTM), 2006, p. 46 

(reperibile in ). Questo rapporto (RDP) è stato preparato in 

osservanza a quanto previsto all'art. 3.2 del Protocollo di Kyoto ed in linea con le decisioni 22/CP.7 e 

25/CP.8 della UNFCCC. 

74 Fonte: Ministero della Salute; in . 

75 Cfr. .



suolo e della costa, la gestione delle risorse idriche, la protezione della salute 

umana, lo sviluppo agricolo e rurale, l'industria e l'energia, ed infine il turismo. 

Il problema dell‟adattamento e della mitigazione dei cambiamenti climatici è 

stato, peraltro, anche tra quelli discussi in occasione della Conferenza 

nazionale sulla biodiversità, tenutasi a Roma dal 20 al 22 maggio 2010 76 . 

2. VALUTAZIONE E COPERTURA DEI COSTI DI ADATTAMENTO 

Se il metro di valutazione della reale volontà di uno stato nell'attuazione di una 

specifica politica può essere misurato sulla base dei fondi impiegati nel 

perseguimento degli obiettivi di quella politica, per ciò che concerne le 

politiche di adattamento italiane la situazione è alquanto preoccupante. Infatti 

l'assenza di una Strategia Nazionale di Adattamento (NAS) 77 , unitaria e 

dedicata, si fa sentire anche per ciò che riguarda gli aspetti relativi alla 

valutazione e alla copertura dei costi di adattamento. Spesso infatti le azioni 

legate sia alla valutazione dei costi derivanti dal mancato adattamento e 

dall'adattamento stesso ai cambiamenti climatici, sia i provvedimenti finalizzati 

allo stanziamento di risorse finanziarie destinate alle «politiche di adattamento» 

si sono dimostrate occasionali, dettate dalla gestione dell'emergenza e ad oggi 

spesso più di facciata che guidate da una reale volontà di intervenire, anche se 

rispetto al passato sembra che qualche timido passo si inizi a compiere in tale 

direzione. 

2.1. – I COSTI DI ADATTAMENTO 

A livello comunitario alcune indicazioni strategiche nella valutazione dei costi 

di adattamento sono state fornite attraverso il Libro verde della Commissione, 

del 29 giugno 2007, sull'adattamento ai cambiamenti climatici in Europa 78 . La 

Comunità ritiene possibile incidere positivamente sulla stima dei costi e dei 

benefici derivanti dalle misure di adattamento attraverso un approccio 

integrato tra i vari settori della ricerca scientifica. Nello specifico, tra le altre 

azioni, attraverso: l'elaborazione di metodi globali ed integrati, di indicatori e 

modelli a lungo termine; il miglioramento delle previsioni su scala regionale e 

locale e l'accesso ai dati disponibili; l'analisi approfondita degli effetti dei 

cambiamenti climatici sugli ecosistemi e delle modalità per aumentare la 

capacità di resistenza di questi ultimi; la promozione dei sistemi di 

76 Cfr. 

. 

77 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit., p. 143. 

78 Libro verde della Commissione, del 29 giugno 2007, sull'adattamento ai cambiamenti climatici in Europa: 

quali possibilità di intervento per l'UE [COM(2007) 354 definitivo - Non pubblicato nella Gazzetta ufficiale], 

reperibile in http://europa.eu/legislation_summaries/environment/tackling_climate_change/l28193_it.htm.



informazione; il rafforzamento dei legami tra i ricercatori in Europa e nei 

paesi terzi. 

Salvo recentissime eccezioni 79 in Italia esistono solo pochi studi, sporadici e 

relativi a specifici progetti, finalizzati alla valutazione economica 

sull'adattamento ai cambiamenti climatici. 

In primo luogo, tra questi, si può segnalare lo studio condotto sulle aree alpine 

relativamente ai costi derivanti dall'innevamento artificiale funzionale alle 

esigenze del turismo invernale 80 . Da questo studio emerge che un eventuale 

innalzamento delle temperature medie porterebbe da una parte ad un 

incremento delle spese necessarie per la produzione artificiale della neve, e 

dall'altra all'innescarsi di conflitti tra i diversi soggetti interessati all'utilizzo 

della risorsa idrica, indispensabile in elevati quantitativi per l'impiego dei 

cannoni da neve. 

In secondo luogo, per ciò che concerne le risorse idriche e la riduzione del 

relativo rischio di alluvioni e frane, da uno studio condotto dal Ministero 

dell'Ambiente e della Tutela del Territorio e del Mare (MATTM), risulta che il 

costo stimato, senza tener conto dell'aumento dei rischi derivante dal mutare 

delle condizioni legato ai cambiamenti climatici, per la riduzione di detti eventi 

in Italia ammonterebbe a 42 miliardi di euro. Gli stanziamenti in tal senso si 

sono dimostrati del tutto inadeguati ammontando a 1,15 miliardi nel 2006 ai 

quali si è aggiunto successivamente (6 novembre 2009 81 ) uno stanziamento 

occasionale di un miliardo di euro da parte del CIPE. 

In terzo luogo, va rilevato che ad eccezione di alcuni studi economici condotti 

specificamente sulla città di Venezia 82 e sugli effetti dell'innalzamento del 

livello del mare in Italia 83 , non esistono valutazioni economiche specifiche 

relative alle strategie di adattamento agli effetti dei cambiamenti climatici sulla 

protezione delle aree costiere. 

Infine si può citare l'analisi condotta relativamente ai costi di adattamento agli 

effetti delle onde di calore sulla salute umana. Da alcuni studi condotti nel 

79 Da cui si evince che «In 2050, Italy would therefore suffer a loss equivalent to 20-30 billion euros at current 

prices. This value would be six times higher in 2100» in C. Carraro and A. Sgobbi (2008), Climate Change 

Impacts and Adaptation Strategies In Italy. An Economic Assessment, reperibile in 

, di cui è stata pubblicata 

anche una versione in italiano, C. Carraro (cur.), Cambiamenti climatici e strategie di adattamento in Italia. Una 

valutazione economica, 2008, FEEM, in collaborazione con l'Istituto Superiore per la Protezione e la Ricerca 

Ambientale – ISPRA ed il Centro Euro-Mediterraneo per i Cambiamenti Climatici – CMCC 

80 Bosello F., L. Marazzi and P.A.L.D. Nunes (2007), Le Alpi italiane e il cambiamento climatico: elementi di 

vulnerabilità ambientale ed economica, e possibili strategie di adattamento, Report preparato per l'APAT al Workshop 

sui Cambiamenti climatici e ambienti nivo-glaciali: scenari e prospettive di adattamento, Saint-Vincent, 2-3 July 2007. 

81 MATTM (2009) “Frane: dal Cipe un miliardo di euro contro il dissesto idrogeologico”, 

http://www.minambiente.it/opencms/opencms/home_it/showitem.html?item=/documenti/notizie/notizia 

_0096.xml. 

82 Chiabai A. and P.A.L.D. Nunes (2006), Exploring the use of alternative econometric model specifications so as to assess 

the economic value of high water events in the city of Venice, Italy, Mimeo, FEEM. 

83 Bosello F., R. Roson and R.S.J. Tol (2007), Economy-Wide Estimates of the Implications of Climate Change: Sea- 

Level Rise, Environmental and Resource Economics, (3), 37, 549-571



2006 84 e nel 2007 85 è emerso come sia economicamente conveniente l'ipotesi 

di investire risorse in network per la prevenzione degli effetti delle onde di 

calore sulla salute umana (HHWWS), essendo stato valutato in 134 milioni di 

euro l'ammontare dei benefici derivanti dall'adozione di detto sistema per la 

sola Città di Roma. 

2.2. – INCENTIVAZIONI 

Anche per ciò che riguarda le incentivazioni a livello comunitario, va segnalato 

che sempre nel citato libro verde sull'adattamento ai cambiamenti climatici, sono state 

tracciate delle ipotesi che a cascata potrebbero produrre effetti rilevanti in 

termini di approvvigionamenti finanziari finalizzati all'adattamento ai 

cambiamenti climatici. Infatti è stata prospettata l'ipotesi di integrare la 

questione dell'adattamento all'interno dei programmi di finanziamento 

comunitari e nei progetti finanziati grazie a questi fondi 86 , ciò con particolare 

attenzione ai progetti relativi alle infrastrutture. 

A livello nazionale va evidenziato come la normativa italiana non distingua in 

modo chiaro all'interno degli assi di finanziamento previsti tra progetti di 

«prevenzione» o di «adattamento». Quindi può capitare che con uno stesso 

fondo si possano finanziare sia le prime che le seconde. D'altra parte non è 

escluso che ci si possa trovare di fronte ad interventi o progetti che 

producono effetti positivi incidendo su entrambe le strategie. 

Anche qui come per la valutazione dei costi analizzata nel paragrafo 

precedente l'Italia segna forti ritardi sui finanziamenti in tale settore. Infatti se 

inizialmente i propositi sembravano lodevoli e ciò veniva testimoniato 

dall'istituzione, attraverso la Legge Finanziaria 2007, di un fondo rotativo per 

Kyoto 87 , finalizzato all'investimento in tecnologie pulite, che prevedeva 

l'erogazione di prestiti a tasso agevolato nel triennio 2007-2009 per un 

ammontare di circa 200 milioni di euro l'anno a favore di cittadini, imprese e 

soggetti pubblici, successivamente l'attuazione del provvedimento ha 

dimostrato l'inconsistenza degli sforzi in tale direzione. Infatti prima i ritardi 

nell'emanazione del decreto che stabiliva le modalità di erogazione dei 

84 Alberini A., A. Chiabai and G. Nocella (2006), Valuing the Mortality Effects of Heat Waves, in Menne B. and 

K.L. Ebi (eds.) Climate Change Adaptation Strategies for human health, WHO, Springer. 

85 Alberini, A. and A. Chiabai (2007), Quali sono i costi ed i benefici dell'adattamento rispetto ai rischi per la salute 

dell'uomo dovuti ai cambiamenti climatici?, Rapporto preparato per il Workshop dell' APAT su Cambiamenti climatici 

ed eventi estremi: rischi per la salute in Italia, Roma, 25 Giugno 2007. 

86 Tra i programmi interessati si possono segnalare: il Fondo di coesione; il Fondo europeo di sviluppo 

regionale; il Fondo europeo agricolo per lo sviluppo rurale; il Fondo sociale europeo; il Fondo europeo per la 

pesca; ma anche LIFE+. 

87 Legge 27 dicembre 2006, n. 296, che al comma 1110 ha istituito un apposito Fondo rotativo per il 

finanziamento delle misure finalizzate all‟attuazione del Protocollo di Kyoto alla Convenzione quadro delle 

Nazioni Unite sui cambiamenti climatici, fatto a Kyoto l‟11 dicembre 1997, reso esecutivo dalla legge 1° 

giugno 2002, n. 120, previste dalla delibera CIPE n. 123 del 19 dicembre 2002, pubblicata nella Gazzetta 

Ufficiale n. 68 del 22 marzo 2003, e successivi aggiornamenti



finanziamenti per detto triennio (emanato il 25 novembre 2008); poi la sua 

tardiva pubblicazione in Gazzetta ufficiale dopo ben 5 mesi (il 21 aprile 2009); 

ma soprattutto successivamente la mancata emanazione di una fantomatica 

circolare applicativa che il ministero competente avrebbe dovuto emanare 

entro il 22 giugno 2009, e che ad oggi non è stata mai emanata hanno di fatto 

reso inutilizzabili dette risorse del fondo. Per finire su tale mancata 

emanazione si è arrivati a presentare ad agosto di quest'anno una apposita 

interpellanza urgente 88 in commissione ambiente. 

Ad oggi non è ben chiaro se e quando potranno essere effettivamente 

impiegate queste risorse infatti se da una parte il DPEF 2010-2013 sembra 

riproporre detto fondo aumentandone gli importi, dall'altra sussiste ancora 

scarsa chiarezza sulle procedure di accesso e su ciò che possa essere finanziato 

con dette risorse 89 . 

Tra gli altri interventi settoriali che possono avere ricadute positive sulle 

strategie di adattamento ma che non sembrano specificamente nascere 

all'interno delle strategie di adattamento sono diversi i provvedimenti che si 

possono citare a titolo di esempio. 

Di incentivi per il risparmio energetico si e` occupata la Legge 27.12.2006 n. 

296, pubblicata in G.U. 27.12.2006 (c.d. Legge Finanziaria 2007); 

prevedendo alcuni provvedimenti attuativi in materia, ad esempio, di 

riqualificazione energetica del patrimonio edilizio esistente (art. 1 comma 344), 

di efficienza energetica del settore produttivo (detrazioni per l‟acquisto di 

motori ad elevata efficienza) (art. 1 comma 358), di diffusione della 

produzione di energia elettrica mediante conversione fotovoltaica dell‟energia 

solare (artt. 1 commi 346 e 350) 90 . 

Sotto il profilo delle disposizioni finanziarie l’art. 26 del d.lgs. 216/2006, per 

fare fronte ad alcune attività quali l‟autorizzazione ad emettere gas ad effetto 

serra (art.4), l‟aggiornamento di tale autorizzazione (art.7), l‟assegnazione ed il 

rilascio delle quote di emissioni agli impianti (art.11 commi 2 e 3), gli 

adempimenti relativi al Registro nazionale delle emissioni e delle quote di 

emissioni (art.14), nonché infine l‟accreditamento dei verificatori (art.17), pone 

a carico dei richiedenti il versamento di un corrispettivo secondo determinate 

tariffe e modalità, in modo che vengano effettivamente coperti i costi dei 

servizi resi e che si tenga conto della complessità delle prestazioni richieste. 

Tali entrate, con l‟esclusione di quelle previste per le attività di cui all‟art. 14, 

sono inserite nel bilancio dello Stato per essere successivamente riassegnate ad 

apposito capitolo dello stato di previsione delle amministrazioni interessate 

alle predette attività. 

88 Interpellanza urgente (ex articolo 138-bis del regolamento), nella Seduta n. 363 del 2/8/2010, della 

Commissione Ambiente e tutela del territorio e del mare, reperibile in . 

89 Per la ricostruzione dell'intera vicenda cfr. l'articolo di F. Franchetto, Fondo rotativo per Kyoto, l'incentivo che non 

parte, reperibile in http://www.nextville.it/news/130. 

90 A. MURATORI, Protocollo di Kyoto: senescenza precoce?, in Ambiente e Sviluppo, Milano, Ipsoa, 4/2007, 326.



La L. 24 dicembre 2007, n. 244 (c.d. Legge finanziaria 2008) ha confermato 

la disposizione della L. 27 dicembre 2006, n. 296, recante «Disposizioni per la 

formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 

2007)» relativa allo sconto del 55% agli interventi mirati al risparmio 

energetico e la conseguente disciplina, che nella misura e alle condizioni ivi 

previste, si applicano anche alle spese sostenute entro il 31 dicembre 2010 91 . 

2.3. – PROGRAMMI DI COOPERAZIONE E SVILUPPO 

Nell'ottica di ottemperare a quanto previsto dagli Articoli 4.3, 4.4 e 4.5 della 

Convenzione Quadro sui Cambiamenti Climatici, l'Italia ha stanziato nei paesi 

in via di sviluppo ragguardevoli risorse finanziarie per l'implementazione di 

programmi e progetti sul cambiamento climatico e sulle materie a questi 

collegate 92 , in collaborazione con i soggetti pubblici centrali, regionali e locali; 

con società private; con università ed altre istituzioni pubbliche 93 . 

Gli obiettivi di queste iniziative sono molteplici ed ambiziosi: l'uso efficiente 

delle risorse energetiche e idriche, lo stoccaggio di anidride carbonica, la 

promozione delle fonti di energia rinnovabili, l'apprendimento e lo scambio di 

know-how, la promozione di tecnologie eco-efficienti. 

Tra le proprie maggiori iniziative di cooperazione bilaterale sul cambiamento 

climatico l'Italia ha sviluppato programmi e progetti in Cina, India, nell'area 

mediterranea, nei paesi dell'Europa centrale ed orientale, dell'America Latina, 

dei Caraibi e delle isole del Pacifico. 

A livello multilaterale, l'impegno italiano nelle attività di protezione 

dell'ambiente è stato consistente e ha assicurato continuità negli anni passati 

91 D. Lavermicocca, Le novità della Finanziaria 2008, in Urbanistica e Appalti, 3/2008, 278. 

92 Con ciò raccogliendo le indicazioni europee che invitavano a rafforzare la cooperazione e il dialogo con i 

paesi vicini, in particolare nell'ambito della politica di vicinato, e con gli altri paesi industrializzati che 

incontrano problemi analoghi a quelli dell'UE. Ma ance a fare maggiori sforzi nel favorire gli scambi di beni e 

servizi sostenibili, in particolare per quanto riguarda le ecotecnologie. Inoltre come viene affermato sul sito 

dell'Unione europea «la Commissione ha ritenuto che la politica estera e di sicurezza comune possa svolgere 

un ruolo determinante, così come le relazioni bilaterali o multilaterali, nonostante la molteplicità delle 

situazioni. I paesi in via di sviluppo sono estremamente vulnerabili e i paesi più poveri sono colpiti in misura 

maggiore. Spetta ai paesi sviluppati - vista la loro responsabilità storica nell'accumulo della maggior parte dei 

gas serra nell'atmosfera - sostenere il loro adattamento, in particolare mediante la condivisione delle 

esperienze, ma anche attraverso la programmazione, l'assegnazione di stanziamenti di bilancio e i partenariati 

esistenti. Questo sostegno potrà essere apportato nel contesto della convenzione quadro delle Nazioni Unite 

sui cambiamenti climatici, del piano d'azione dell'UE sui cambiamenti climatici e lo sviluppo () e dell'alleanza 

mondiale per la lotta contro i cambiamenti climatici (Global Climate Change Alliance)». In Libro verde della 

Commissione, del 29 giugno 2007, sull'adattamento ai cambiamenti climatici in Europa: quali possibilità di 

intervento per l'UE, reperibile in http:// europa.eu/ legislation_summaries/ environment/ 

tackling_climate_change/ l28193_it.htm. 

93 Cfr Fifth National Communication under the UN Framework Convention on Climate Change, cit., p. 155, dove 

vengono riportati ulteriori esempi di iniziative di cooperazione con paesi industrializzati sui temi inerenti 

l'adattamento ai cambiamenti climatici, così come progetti intrapresi con paesi in via di sviluppo al fine di 

trasferire tecnologie che consentano a questi ultimi di meglio adottare politiche di «adattamento».



(1997-2000) per mezzo della definizione e dell'implementazione di più 

efficienti strategie di cooperazione con le maggiori istituzioni ed organismi 

ambientali internazionali. 

Detta cooperazione ha coinvolto un ampio spettro di attività, 

dall'approvvigionamento di risorse finanziarie, alla realizzazione ed 

implementazione di programmi e progetti, alla promozione del trasferimento 

di tecnologie eco-efficienti volte alla riduzione degli impatti delle attività 

umane sui cambiamenti climatici, e al supporto a misure di adattamento. 

In particolare, queste iniziative sono state attuate con l'UNESCO, con il 

Regional Environmental Centre for Central and Eastern Europe (REC), il 

Global Environment Facility (GEF), la Banca mondiale (WB), la Food and 

Agriculture Organisation (FAO) e il United Nations Development 

Programme (UNEP). Le risorse finanziarie fornite per l'implementazione delle 

summenzionate attività sono state reperite da differenti canali: dall'Official 

Development Assistance (ODA) e attraverso la legge n. 120 del 1° giugno 

2002 che ha recepito a livello nazionale gli obblighi derivanti dal Protocollo di 

Kyoto. 

La legge n.120 del 1° giugno 2002 rappresenta un adeguamento più che 

proporzionale nel reperimento di risorse finanziarie rispetto agli obiettivi 

previsti dalla Convenzione, infatti detta legge impegna risorse nuove ed 

aggiuntive per un ammontare di 68 milioni di euro/anno per il finanziamento 

di attività in paesi in via di sviluppo finalizzate ad un contributo tangibile per 

l'implementazione della Convenzione Quadro delle Nazioni Unite sui 

Cambiamenti Climatici e del Protocollo di Kyoto. 

Secondo il flusso di dati rilevato dall'Official Development Assistance, l'Italia 

si colloca al settimo posto tra i Paesi OCSE, rappresentando uno tra i 

maggiori finanziatori con un volume ufficiale di assistenza allo sviluppo 

(ODA) per il 2005 di circa 5,091 miliardi di dollari che rappresentano circa lo 

0,29% del PIL con un aumento di più del 106% rispetto ai livelli del 2001- 

2004 94 . 

2.4. – POLITICHE DI SETTORE 

Nonostante le esortazioni provenienti dal livello comunitario 95 anche le 

singole politiche di settore intraprese dall'Italia miranti ad azioni di 

94 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change (cur. Ministero 

dell`Ambiente e della Tutela del Territorio e del Mare), 2007 (rivisto e ritrasmesso il 12 giugno 2008), p. 

16/17 (reperibile in ). 

95 Nel Libro verde della Commissione, del 29 giugno 2007, sull'adattamento ai cambiamenti climatici in 

Europa viene osservato che «occorre prevedere un intervento immediato per integrare la questione 

dell'adattamento ai cambiamenti climatici nella legislazione e in un certo numero di politiche. Questa 

integrazione riguarderà i settori che risentono o risentiranno fortemente dei cambiamenti climatici quali 

l'agricoltura e la silvicoltura, i trasporti, la sanità, le risorse idriche, la pesca, gli ecosistemi e la biodiversità,



adattamento ai cambiamenti climatici sono praticamente inesistenti o 

riconducibili a questi spesso solo in via indiretta. 

Tra i principali provvedimenti di un qualche interesse si può segnalare in 

primo luogo che l'Italia ha ratificato la Convenzione sulla protezione e 

l‟utilizzo dei corsi d‟acqua transfrontalieri e sui laghi internazionali 96 in data 23 

maggio 1996, ma non ha ancora ratificato il relativo Protocollo, che ha 

soltanto firmato in data 17 giugno 1999. 

Il Protocollo sull‟acqua e la salute allegato alla Convenzione del 1992 sulla 

protezione e l‟utilizzo dei corsi d‟acqua transfrontalieri e sui laghi 

internazionali si pone come scopo quello di proteggere la salute umana 

attraverso il miglioramento della gestione dell‟acqua e attraverso la 

prevenzione, il controllo e la riduzione di disastri collegati all‟acqua- Gli 

articoli 6 e 7 del Protocollo obbligano le Parti a stabilire obiettivi nazionali o 

locali e a verificare e valutare i progressi ottenuti per il raggiungimento degli 

obiettivi, inclusi quelli di riduzione dei disastri che influiscono sulle acque. 

L‟art. 8 obbliga le Parti a garantire la creazione, il miglioramento e la 

manutenzione dei sistemi di sorveglianza nazionali e/o locali, oltre a sistemi di 

tempestiva allerta 97 . 

In secondo luogo per ciò che attiene il settore dell‟agricoltura questo ha 

bisogno che si sviluppino proprie strategie di adattamento per contrastare gli 

avversi effetti dei cambiamenti climatici sull‟economia e sull‟agricoltura. 

Nuovi strumenti sono necessari per ridurre il rischio di perdite e, con 

riferimento ad alcune colture specifiche, anche di cercare di trarre vantaggi 

dalle modifiche del clima. 

Le misure economiche saranno rivolte a ridurre le perdite di produzione. 

Alcuni adeguamenti si riveleranno comunque necessari in ogni caso; in questo 

breve termine ci sarà la necessità di adattare e ottimizzare la produzione 

agricola a differenti condizioni climatiche senza cambiare radicalmente il 

sistema di produzione 98 . Nel lungo periodo invece si presenterà l‟esigenza di 

adottare misure più radicali che comporteranno modifiche strutturali che 

necessitano di essere pianificate ad alto livello 99 . 

nonché le questioni trasversali come le valutazioni di impatto e la protezione civile. Nello stesso tempo, 

l'adeguamento offrirà delle opportunità di sbocchi tecnologici e di sviluppo, ad esempio per le industrie e i 

servizi o le tecnologie energetiche», in 

http://europa.eu/legislation_summaries/environment/tackling_climate_change/l28193_it.htm. 

96 In . 

97 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, cit., 210. 

98 A titolo di esempio tra le azioni che possono essere intraprese si può segnalare: l'impiego di cultivar con 

caratteristiche differenti; la sostituzione di specie esistenti; la modifica di pratiche agronomiche e cambio di 

fertilizzanti ed antiparassitari; l'introduzione di nuove tecniche per mantenere l‟umidità del suolo e migliorare 

la gestione dell‟irrigazione delle piante. 

99 Tra queste: modifiche nell‟utilizzo del territorio; sviluppo di nuovi cultiva, specialmente quelli che meglio si 

adattano al caldo ed alla scarsità di acqua; sostituzione di specie esistenti; modificare il microclima delle specie 

agricole.



L‟analisi delle cause di vulnerabilità dei sistemi agricoli ha evidenziato che i 

problemi di carattere idrico sono di gran lunga i fattori decisivi che 

determinano la vulnerabilità delle principali colture regionali. Per quel che 

riguarda le politiche e le misure di adattamento che potrebbero essere adottate 

nel breve e medio termine, le più urgenti sono quelle che riguardano il 

miglioramento della gestione dell‟acqua da irrigazione, inclusa l‟adozione delle 

più efficienti tecnologie di irrigazione. 

Una migliore comprensione degli impatti che la scarsità di acqua comporta 

sulle piante è di vitale importanza per migliorare sia le tecniche agricole 

relativamente ad un uso ottimale dell‟acqua, sia gli sforzi profusi nell‟attività di 

selezione al fine di ottenere nuove specie che facilmente si possano adattare 

alle mutate condizioni climatiche. 

Al fine di coltivare e selezionare quelle varietà che meglio di tutte si adattino ai 

cambiamenti climatici, il progetto RIADE implementato dall‟ENEA ha 

studiato molte varietà di frumento e di altre specie 100 . 

Settore degno di una qualche nota infine è quello automobilistico in cui a 

seguito di un lungo negoziato svoltosi a livello comunitario, il 5 giugno 2009, 

sulla Gazzetta Ufficiale dell'Unione Europea è stato pubblicato il 

Regolamento (CE) N. 443/2009 del Parlamento Europeo e del 

Consiglio del 23 aprile 2009, che definisce i livelli di prestazione in materia 

di emissioni delle autovetture nuove nell'ambito dell'approccio comunitario 

integrato finalizzato a ridurre le emissioni di CO 2 dei veicoli leggeri. Il 

Regolamento individua un target comunitario delle emissioni di CO 2 delle 

autovetture nuove vendute annualmente nella Comunità, di 130 g CO 2/km 

riferito alla media di tutte le autovetture nuove commercializzate nel 2012, da 

conseguire tramite miglioramenti tecnologici apportati ai motori. I restanti 

gCO 2/km dovranno essere abbattuti tramite misure tecniche complementari 

(e.g. pneumatici, carburanti, etc). 

Gli obblighi per i costruttori si applicheranno al 65 % delle loro flotte nel 

gennaio 2012, al 75% nel gennaio 2013, al 80% nel gennaio 2014 e al 100% a 

partire dal 2015. 

Viene inoltre introdotto un obiettivo di lungo termine di 95 g di CO 2/Km da 

raggiungere nel 2020. 

Per assicurare il raggiungimento dell'obiettivo medio comunitario di 130 

gCO2/km, il Regolamento fìssa valori limite per le emissioni specifiche di 

CO 2 delle auto in funzione diretta della loro massa (peso). Tale approccio, 

prevede che al crescere del peso del veicolo aumenti anche il valore limite da 

rispettare; pertanto le autovetture più leggere dovranno rispettare valori limite 

inferiori a 130 g/km mentre per le più pesanti i valori limite saranno di gran 

lunga superiori. Ogni casa costruttrice dovrà dimostrare alla fine di ogni anno 

100 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, cit., 211 s.



che l'insieme delle auto vendute raggiunga un valore medio di emissioni 

corrispondente a quanto richiesto dal regolamento, tale valore viene calcolato 

tenendo conto del numero e del peso delle auto vendute. 

Qualora l'obiettivo annuale non venga raggiunto, i costruttori saranno 

sanzionati dalla Commissione Europea con una multa unitaria che, a partire 

dal 2019, sarà pari a 95 euro per grammo di CO2 di superamento moltiplicata 

per il numero di auto vendute. 

Con il DECRETO DEL MINISTERO DELLO SVILUPPO 

ECONOMICO 1 luglio 2009 101 , Relativo alla approvazione della guida al 

risparmio di carburante ed alle emissioni di CO 2, ai sensi dell'articolo 4 del 

decreto del Presidente della Repubblica 17 febbraio 2003, n. 84, riguardante il 

regolamento di attuazione della direttiva 1999/94/CE concernente la 

disponibilità di informazioni sul risparmio di carburante e sulle emissioni di 

CO 2 da fornire ai consumatori per quanto riguarda la commercializzazione di 

autovetture nuove, tende a ridurre i consumi e le emissioni di CO 2 del 10-15 

% attraverso consigli, forniti a nuovi acquirenti di autovetture, finalizzati al 

perseguimento di una guida intelligente ed una corretta manutenzione 

dell'autovettura. 

Con il Decreto-Legge n. 5 del 10 febbraio 2009, poi convertito con la legge 

11 aprile 2009, n. 33, l'attuale Governo ha deciso nuovi incentivi mirati alla 

sostituzione del precedente parco auto con autovetture con minori emissioni 

di anidride carbonica, specie se alimentate a GPL o metano. 

2.5. – POLITICHE DI CONSERVAZIONE DEL PATRIMONIO NATURALE E MISURE 

PER LA TUTELA DELLA BIODIVERSITÀ 

In Italia esiste una normativa specifica per le aree protette (l. 394/1991, legge 

quadro sulle aree naturali protette) che sebbene consenta agli enti parco di 

creare misure di conservazione per la natura al fine di adattarle agli effetti del 

riscaldamento globale, tuttavia non nasce specificamente per tale fine. Inoltre 

esistono anche varie politiche nazionali e regionali di conservazione della 

natura (es. Decreto 2 febbraio 2005 del ministero dell'ambiente in attuazione 

del protocollo di Kyoto relativamente alla riforestazione), ma anche queste 

raramente sono specificamente nate per l'adattamento agli effetti del 

riscaldamento globale. 

Passando più specificamente ai principali scenari nazionali 102 derivanti dagli 

effetti dei cambiamenti climatici sulla biodiversità è stato ipotizzato 103 che la 

riduzione del numero di specie stabili di piante nel 2100, confrontata con il 

101 In Suppl. ordinario n. 143 alla Gazz. Uff., 6 agosto, n. 181. 

102 A livello comunitario relativamente a tale materia cfr. Commissione europea, Libro verde: La protezione e 

l'informazione sulle foreste nell'UE: preparare le foreste ai cambiamenti climatici, Bruxelles, 1.03.2010, com (2010)66 

103 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, cit., 195.



1990, potrebbe variare tra il 20†40% nell‟Italia Settentrionale e sugli 

Appennini, tra il 60†80% nell‟area mediterranea, tra il 40†60% nell‟Italia 

Meridionale. L‟aumento di aridità osservato nell‟Italia Centro-Meridionale 

rende le foreste italiane più vulnerabili a disturbi biotici e abiotici riducendo la 

loro resistenza e resilienza. 

In generale il cambiamento climatico potrebbe causare una migrazione globale 

degli ecosistemi verso nord e verso l'alto in direzione delle aree montane: per 

esempio un aumento di 3°C della temperatura, entro la variazione prevista per 

il 2100, corrisponde ad un cambiamento della distribuzione delle specie di 

300-400 Km. verso nord (nelle zone temperate) o di 500 metri di altitudine. 

Molte specie avranno difficoltà nel rispondere a tale rapido cambiamento 

dovuto a migrazione o ad adattamento, ed è probabile che diventino meno 

diffuse o che addirittura si estinguano. 

Tenendo in considerazione la complessità orografica e geomorfologica 

dell‟Italia, l'intero equilibrio del paesaggio naturale tenderà a modificarsi in 

relazione alle differenti capacità di adattamento locale. 

In questo scenario, la quota di specie stabili di piante nel 2100, confrontata 

con il 1990, potrebbe variare tra il 60†80% nell‟Italia Settentrionale e negli 

Appennini, tra il 20†40% nell‟area mediterranea, del 40†60% nell‟Italia 

meridionale. 

L‟attuale ricchezza di specie di piante nell‟area del Mediterraneo potrebbe 

ridursi nel corso del 21° secolo a causa della prevista riduzione delle 

precipitazioni, dei più frequenti incendi di foreste, dell‟aumento dell‟erosione 

del suolo e della mancanza di specie che possano sostituirsi a quelle andate 

perse. 

Per quel che riguarda gli ambienti alpini e montani, un cambiamento 

dell‟ecosistema verso altitudini più elevate e lo scioglimento dei ghiacciai 

causato dalle temperature più elevate può anche alterare il ciclo idro-geologico 

delle montagne, con ripercussioni sia sull‟equilibrio dell‟acqua contenuta nei 

bacini di raccolta delle piogge, sia sulla stabilità dei versanti montani. 

In più, è praticamente certo che la flora montana europea subirà notevoli 

modifiche a causa del cambiamento climatico. Le tendenze globali vanno 

verso un incremento della stagione della crescita, fenologia precoce e cambio 

della distribuzione delle specie verso altitudini maggiori. Tali modifiche di 

altitudine sono anche documentate per le specie animali. Si prevede che la 

linea degli alberi si sposterà verso l‟alto di alcune centinaia di metri. Questi 

cambiamenti, insieme con la conseguenza dell‟abbandono del pascolo alpino, 

limiterà l‟area della zona alpina ad altitudini più elevate, minacciando 

gravemente la flora nivale. 

Le foreste italiane sono molto importanti per il paesaggio, la biodiversità, 

l‟equilibrio dell‟ambiente, e per l‟economia. Esse coprono circa 10 milioni di 

ettari (30% della superficie nazionale) e rappresentano il 5% dell‟area boschiva



europea. Quest‟area boschiva è gradualmente aumentata, con un ritmo di circa 

100.000 ettari per anno, nel periodo 2000-2005 attraverso un progressivo 

cambiamento del metodo di utilizzazione agricolo del territorio. 

Tendenze positive rispetto al numero massimo di giorni secchi consecutivi, 

come osservato nell‟Italia Centro-Meridionale, associati ad un aumento di 

episodi di forti precipitazioni determinano una risposta delle foreste italiane 

che vanno verso due differenti direzioni: una tendenza negativa associata alla 

riduzione dell‟approvvigionamento di acqua, e una tendenza positiva associata 

all‟allungamento della crescita e delle deposizioni azotate. 

L‟aumento di aridità osservato nell‟Italia Centro-Meridionale rende le foreste 

italiane più vulnerabili rispetto a disturbi biotici e abiotici che riducono la loro 

resistenza e resilienza. 

Infatti, si osserva un deterioramento delle querce, principalmente associato a 

problemi di acqua durati per venti anni. E‟ un dato allarmante atteso che le 

querce costituiscono il 26,5% delle foreste nazionali. Inoltre, una media di 

55.000 ettari di bosco è più o meno seriamente danneggiata dagli incendi ogni 

anno. 

Inoltre va notato che circa il 3% delle foreste sono situate in aree a rischio di 

cedimento. Ne consegue che circa un terzo delle foreste italiane è seriamente 

minacciato dal cambiamento climatico. Ciò implicherà inevitabilmente una 

significativa perdita di habitat e di biodiversità (Ministro dell‟Ambiente 

italiano, 2003). 

Un‟opposta tendenza causata dall‟allungamento del periodo di crescita viene 

registrato nell‟Italia Centro-Settentrionale dove si assiste ad una espansione 

delle foreste. In più, sebbene non siano disponibili dati riguardanti la 

produttività dell‟ecosistema delle foreste, si possono rilevare effetti negativi 

determinati dal deterioramento, ed effetti positivi causati dall‟allungamento del 

periodo di crescita. 

Gli ecosistemi delle foreste immagazzinano carbonio durante tutta la sua 

fissazione nella biomassa legnosa, nei rifiuti e nel suolo e in particolare la 

sostanza organica del suolo (SOM). Quest‟ultima, a causa della sua stabilità, è 

in grado di immagazzinare il più grande ammontare di carbonio e per il più 

lungo periodo di tempo, riducendo l‟aumento di concentrazione di carbonio 

nell‟atmosfera (Del Gardo e altri, 2003). 

A causa della resistenza e della longevità della biosfera terrestre e del suolo 

come deposito di anidride carbonica, le foreste stanno aumentando 

d‟importanza per quel che riguarda lo stoccaggio del carbonio. Questo può 

essere un risultato derivante da progetti di forestazione e dall‟abbandono dei 

campi coltivati. 

Ogni anno migliaia di ettari sono distrutti o danneggiati dagli incendi. Gli 

incendi sono in ogni luogo il risultato di complesse interazioni tra biomasse



forestali, topografia, uso del territorio incontrollato, condizioni 

metereologiche ed incendi dolosi dell‟uomo. 

Negli ultimi 20 anni 1.100.000 ettari di foresta sono andati bruciati. Ogni anno 

si verificano una media di 11.000 incendi, che distruggono più di 50.000 ettari 

di bosco l‟anno. La causa di questo fenomeno è per un terzo ascrivibile ad 

incendi dolosi, comportamenti sbagliati e disattenzione. Le conseguenze per 

l‟equilibrio naturale sono gravi ed i tempi di recupero sono lunghi. Oggi, come 

risultato di forti campagne di sensibilizzazione e grazie ad un aumentata 

organizzazione regionale e nazionale dei sistemi di prevenzione degli incendi, 

il rischio, sebbene resti alto, è diminuito. La superficie bruciata è diminuita da 

190.640 ettari nel 1985 a 76.427 ettari nel 2001. 

La metà dei 10.000 incendi annuali complessivi si verifica durante i mesi di 

luglio ed agosto. Durante l‟anno torrido del 2003 è stato registrato un totale di 

9.697 incendi, che hanno colpito più di 91.000 ettari di terreno. In quell‟anno 

le regioni che più gravemente sono state interessate sono la Calabria e la 

Campania, nell‟Italia Sud-Occidentale. Le più ampie superfici di terra colpite 

dagli incendi si trovano in Sicilia e in Sardegna. 

Il tempo secco e un ecosistema danneggiato dall‟accumulo di biomasse morte 

fa aumentare il rischio di incendi di boschi e perciò un incremento della 

variabilità del clima fa aumentare il rischio di incendi boschivi. 

All‟interno di questo scenario sono stati implementati i due piani previsti dalla 

Convenzione sulla biodiversità (CBD) e dalla Convenzione dell‟ONU per 

combattere la desertificazione (UNCDD) e precisamente: 

- il Piano nazionale per la biodiversità che mira particolarmente al 

recupero dell‟ecologia e della deframmentazione, approvato dalla Conferenza 

Stato Regioni il 14 febbraio 2008 che, attraverso una breve analisi delle più 

importanti problematiche connesse alla scomparsa e alla continua erosione 

delle risorse genetiche animali, vegetali e microbiche, si pone l'obiettivo di 

fornire, nel rispetto della normativa esistente e dei principi contenuti nei 

documenti programmatici nazionali e internazionali, le linee guida per la 

preservazione e la valorizzazione delle risorse genetiche presenti in 

agricoltura 104 . 

- e il Piano nazionale d’azione per combattere la desertificazione e la 

siccità 105 . 

Infine va ricordato che per ciò che attiene gli OGM la normativa in vigore in 

Italia in materia è sostanzialmente di matrice comunitaria; le norme 

fondamentali sono rappresentate dalla direttiva 98/81/CE del 26.10.1998, 

104 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, cit., 215 

s. 

105 Cfr. supra.



recepita in Italia con il D.lgs. 12.4.2001 n°206 106 , e dalla Direttiva 

2001/18/CE del 12.3.2001, recepita in Italia con il D.lgs. 8.7.2003 n°224 107108 . 

PARTE II - MISURE FINALIZZATE DI ADATTAMENTO 

1.1. CONTROLLO DELLE INONDAZIONI: PROGRAMMI D‟AZIONE E 

FINANZIAMENTO 

La morfologia delle zone costiere, e le sollecitazioni cui esse sono soggette da 

parte del‟uomo, le rendono vulnerabili all‟impatto dei cambiamenti climatici, 

in particolare all‟innalzamento del livello del mare ed all‟aumento 

dell‟incidenza di fenomeni atmosferici devastanti; tutto ciò comporta 

l‟aumento del rischio di inondazioni nonché di erosione della costa 109 . La 

presenza di numerosi fiumi, laghi e pianure circostanti sul territorio nazionale 

fa sì che il rischio di inondazioni ed alluvioni sia notevolmente sentito anche 

nelle zone interne del Paese. 

In tal contesto si prevede che, a causa delle inondazioni, si possano registrare 

gravi conseguenze sia in termini di perdita di terreni produttivi 110 (in 

particolare, per quel che riguarda i terreni limitrofi ai litorali marini, le 

conseguenze dannose possono afferire alle coste basse con elevata densità di 

popolazione, come quelle dell‟Adriatico settentrionale, della zona padanoveneta, 

delle pianure della Versilia e di Grado, della pianura Pontina e di quella 

di Fondi); sia in termini di danni o di perdite nella biodiversità e 

nell‟ecosistema (ad esempio nelle zone umide nei pressi degli estuari); sia in 

termini di uragani e grandine (registrati di fatto sulle coste dell‟Adriatico 

settentrionale); sia in termini di danni sull‟economia rurale costiera (a causa ad 

esempio di infiltrazioni di acqua salata nei letti dei fiumi con conseguente 

inaridimento del terreno e riduzione della disponibilità di acqua dolce); sia, 

infine, in termini di impatti negativi sul comparto turistico (con rischio di 

perdita del bacino d‟utenza a causa dell‟eccessivo innalzamento delle 

temperature e dell‟aumento dei fenomeni di onde di calore concomitanti con 

situazioni di diminuzione della disponibilità di risorse idriche) 111 . 

106 In tema di MOGM – microrganismi geneticamente modificati. 

107 In tema di OGM – organismi geneticamente modificati. 

108 Cfr. S. Nespor, Biotecnologie e ambiente, in S. Nespor, A.L. De Cesaris (cur.), Codice dell'Ambiente, Milano, 

Giuffrè, 2009, 563-667 

109 ENEA – Ente per le Nuove Tecnologie, l‟Energia e l‟Ambiente; in . 

110 ANTONIOLI F. – SILENZI S., Variazioni relative del livello del mare e vulnerabilità delle pianure costiere italiane”, 

in CASTELLARI S. – ARTALE V. (cur.) "I cambiamenti climatici in Italia: evidenze, vulnerabilitá e impatti", 2009, 

Bononia University Press. 

111 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit., p. 132-133.



I danni sulla popolazione che, negli ultimi, sono stati causati dalle alluvioni 

sono ingenti e hanno portato anche a numerosi casi di decessi. La quantità di 

informazioni disponibili a tal riguardo è limitata; tuttavia, da alcuni studi 

condotti a livello europeo e dalle risultanze del database EM-DAT 112 emerge 

appieno la gravità di questo problema (si registra ad esempio che a seguito 

delle inondazioni verificatesi nell‟ottobre 2000 sono state colpite circa 43.000 

persone con danni quantificati in circa otto milioni di dollari). 

Numerose misure di adattamento sono state finora intraprese dall‟Italia, sia a 

livello centrale che dalle Regioni, per fronteggiare il problema delle 

inondazioni, in particolare per quel che riguarda l‟innalzamento del mare (cd. 

SLR – Sea level rise). A questo proposito si registrano misure di carattere 

tecnico (ad esempio con la costruzione di dighe), strategie logistiche (ad 

esempio con il trasferimento delle strutture ricreative in luoghi non soggetti a 

rischi di inondazioni), interventi nella gestione del territorio (ad esempio con 

la scelta di pratiche agronomiche compatibili con il verificarsi di inondazioni) 

e decisioni politiche (ad esempio con la pianificazione dell‟uso del suolo) 113 . 

Tra le opere più complesse in fase di realizzazione va segnalato il “Progetto 

MOSE” (Modulo Sperimentale Elettromeccanico) che ha come obiettivo la 

difesa degli abitanti della laguna e della città di Venezia dai fenomeni di acque 

alte, progettato secondo un criterio precauzionale per fronteggiare un 

aumento del livello del mare sino a 60 centimetri rispetto al parametro di base, 

superiore quindi alle risultanze scientifiche che prevedono un innalzamento 

del livello del mare, entro l‟anno 2099, compreso tra i 18 ed i 59 centimetri 114 . 

Affianco alle misure tradizionalmente utilizzate per arginare le conseguenze 

dannose derivanti dall‟innalzamento dei mari (cioè mediante posizionamento 

di scogliere artificiali, ricostituzione delle spiagge mediante apporto di grandi 

quantità di sabbia, ecc.), recentemente, al fine di sopperire alla 

frammentazione delle locali competenze amministrative e per organizzare un 

coerente sistema di adattamento, il MATTM, dando attuazione alla politica 

europea per la tutela delle zone costiere 115 ha intrapreso una azione coordinata 

e congiunta con gli enti territoriali per pervenire ad una strategia nazionale 

sulla gestione integrata delle zone costiere (ICZM - Integrated Coastal Zone 

Management) 116 . 

112 EM-DAT: International disaster database. Affinché vi sia un inserimento nella banca dati EM-DAT deve 

essere soddisfatto almeno uno dei seguenti criteri: dieci o più persone devono restare uccise a causa 

dell‟evento; cento persone devono essere segnalate come colpite; deve esservi stata una richiesta di assistenza 

internazionale; deve esservi una dichiarazione di stato d'emergenza. I criteri di immissione nel database EM- 

DAT si sono dimostrati utili al fine di dare una visione globale relativa alle catastrofi. I dati relativi ai singoli 

Paesi, tra cui l‟Italia, sono reperibili in . 

113 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit., p. 145. 

114 Cfr. IPCC Fourth Assessment Report: Climate Change 2007 (AR4 Synthesis Report), 2007, p. 45. Reperibile in 

. 

115 Costal Policy Zone dell‟Unione europea; in . 

116 Fonte: MATTM; in 



Inoltre in l‟Italia si è data attuazione al Programma di Gestione delle Aree 

Costiere (CAMP - Coastal Area Management Programme) che si inserisce nelle 

attività intraprese dai Paesi membri della Convenzione per la protezione del 

Mar Mediterraneo dai rischi dell'inquinamento 117 (cd. Convenzione di 

Barcellona) del 1976. Quale componente del Piano di Azione del 

Mediterraneo (MAP), il CAMP è orientato all‟attuazione di alcuni progetti di 

gestione delle coste che sono stati sviluppati in aree pilota situate nel 

Mediterraneo. Il Programma è coordinato dal Centro di Attività Regionale per 

il Programma di Azioni Prioritarie (PAP/RAC) 118 . 

Di specifica rilevanza sul tema delle alluvioni è la direttiva comunitaria 

2007/60/CE per la valutazione e la gestione dei rischi di alluvioni che è stata 

recentemente recepita in Italia 119 con D.Lvo 49/2010, nel quale è previsto un 

coordinamento con il Codice dell‟Ambiente 120 (art. 9 D.Lvo 49/2010). 

La direttiva 2007/60/CE, emanata nell‟ambito dello European Flood Action 

Programme 121 si propone di ridurre e gestire i rischi connessi alle alluvioni in 

termini di salute umana, ambiente, infrastrutture, proprietà, patrimonio 

culturale ed attività economico-sociali. In base a questa normativa il MATTM 

è tenuto a comunicare alla Commissione europea quali siano le misure 

adottate in relazione alla predisposizione di mappe della pericolosità e del 

rischio di alluvioni (art. 6 D. Lvo 49/2010), ed alla elaborazione di piani di 

gestione del rischio di alluvioni (art. 7 D. Lvo 49/2010). 

La direttiva 2007/60/CE fa seguito ad una comunicazione della Commissione 

del 2004 122 sulla gestione delle inondazioni, e contiene alcuni elementi di 

collegamento con la direttiva quadro sulle acque (WFD) 123 (direttiva, 

quest‟ultima, che ha introdotto il principio del coordinamento transfrontaliero 

all‟interno dei bacini idrografici, finalizzato a garantire una buona qualità di 

&m=argomenti.html|Mare.html|Gestione_Integrata_delle_Zone_Costiere__.html|Verso_la_Strategia_Nazi 

onale_per_la_Gest.html>. 

117 Il testo della Convenzione di Barcellona è reperibile in . 

118 Fonte: MATTM; in 

. 

119 D. Lvo n°49 del 23 febbraio 2010 (in GU n°77 del 2 aprile 2010) che attua la direttiva 2007/60/CE del 23 

ottobre 2007 relativa alla valutazione e alla gestione dei rischi di alluvioni (in GUUE n°288 serie L del 6 

novembre 2007). 

120 D. Lvo n°152 del 3 aprile 2006 (in GU n°88 del 14 aprile 2006 – Suppl. Ordin. n°96). Il “Codice 

dell‟Ambiente” contiene alcune disposizioni in tema di risorse idriche, sulla cui base è stata prevista la 

suddivisione del territorio nazionale in distretti idrogeografici e sono state introdotte rilevanti innovazioni in 

tema di gestione e tutela delle risorse idriche; parte delle disposizioni del Codice sono, allo stato, ancora in 

fase di attuazione. 

121 Cfr. . 

122 Comunicazione della Commissione sulla gestione dei rischi di inondazione [COM(2004) 472] def. del 12 

luglio 2004; reperibile in . 

123 Direttiva 2000/60/CE (in GUCE serie L n°327 del 22 dicembre 2000).



tutte le acque, ma che di per sé non ha fissato alcun obiettivo relativo alla 

gestione dei rischi di alluvione). 

Al fine di fornire supporto all‟implementazione della direttiva 2007/60/CE e 

di promuovere una piattaforma per lo scambio di informazioni sulla gestione 

del rischio di alluvioni, è stato istituito nell‟ambito dell‟Unione europea un 

Working Group on Floods. Parallelamente è attiva una piattaforma per lo 

scambio di informazioni denominata “CIRCA - Communication Information 

Resource Centre Administrator” che consente un efficace scambio di informazioni 

sia in funzione delle disposizioni della direttiva 2007/60/CE, sia della direttiva 

quadro sulle acque. 

Merita, infine, un cenno la tematica degli strumenti di finanziamento sul tema 

delle alluvioni. A questo proposito può essere menzionato un vasto progetto 

che è stato finanziato e realizzato nell‟ambito del Sesto Programma Quadro, 

denominato “FLOODsite” 124 , che ha visto anche la partecipazione di alcune 

istituzioni italiane (l‟Università di Bologna, l‟Università di Padova, l‟Istituto di 

Sociologia Internazionale di Gorizia e l‟Università di Roma Tre) nell‟ambito 

del quale vengono elaborati metodi di analisi e gestione integrate del rischio di 

alluvione. 

Il Fondo di solidarietà, inoltre, offre uno strumento finanziario specifico per le 

operazioni di emergenza in caso di gravi catastrofi. 

Infine, un ulteriore canale di finanziamento è rappresentato dalla politica di 

coesione per il 2007-2013, ed in tale ambito, in primo luogo, dai fondi 

strutturali. 

1.2. AGRICOLTURA, FORESTAZIONE E POLITICHE DI RICONVERSIONE 

L‟agricoltura italiana soffre notevolmente gli effetti dei cambiamenti climatici 

e ciò si registra in modo particolare sotto due aspetti: quello dell‟agricoltura di 

qualità, in quanto il nostro è un sistema agricolo basato sulle produzioni locali 

di eccellenza, e sono proprio queste che corrono i maggiori rischi, sia sul 

fronte dell‟agricoltura intensiva, che è spesso associata ad una elevata richiesta 

di approvvigionamento d‟energia. 

L‟impatto dei cambiamenti climatici si manifesta in diversi modi: si possono 

avere ad esempio variazioni qualitative e quantitative delle produzioni, 

alterazioni degli stadi fenologici e del sistema fitopatologico, incrementi delle 

esigenze idriche, spostamenti delle aree produttive, modifiche nell‟utilizzabilità 

di fondi. 

E‟ necessario dunque uno sforzo straordinario di prevenzione e capacità di 

adattamento della nostra agricoltura rispetto alla riduzione delle risorse 

idriche, ai picchi climatici, all‟alterazione della stagionalità delle produzioni, 

con impatto economico-sociale ancora oggi difficilmente quantificabile. E‟ 

124 Cfr. il sito internet del progetto FLOODsite, in .



quindi inevitabile che aumenti l‟esigenza di sostegni finanziari per la ricerca di 

tecnologie e per la diffusione delle informazioni 125 . 

Nel settore agricolo il nostro Paese è privo di una regolamentazione 

sistematica per fronteggiare i cambiamenti climatici; tuttavia alcune iniziative 

tutt‟ora in esercizio o in procinto di essere implementate, riescono a sortire 

risultati positivi anche nell‟azione contro gli effetti negativi dei mutamenti 

climatici. Ciò avviene in modo particolare in riferimento a norme di carattere 

ambientale: data la stretta e complessa interdipendenza tra le problematiche 

sui cambiamenti climatici ed altre tematiche di stampo ambientale, queste 

ultime, sono talvolta idonee ad incidere anche sulle questioni climatiche. 

La più volte ricordata comunicazione che nel 2010 l‟Italia ha inviato 

all‟UNFCCC (NC5) contiene un preciso panorama delle misure di 

adattamento che sono state intraprese nel nostro Paese nel comparto agricolo. 

Tra esse va menzionato prima di tutto il Piano nazionale per l‟irrigazione a 

sostegno del settore agricolo; inoltre, su impulso sia dell‟Unione europea, sia 

del Ministero delle politiche agricole alimentari e forestali (MIPAAF) ben 14 

regioni italiane hanno introdotto il tema della sfida ai cambiamenti climatici 

nell‟ambito dei propri Piani di sviluppo regionale (RDP), prevedendo sia 

strumenti di mitigazione (risparmio di energia, utilizzo di energia da fonti 

rinnovabili, stoccaggio di anidride carbonica, riduzione di emissioni di gas 

serra) sia strumenti di adattamento (introduzione di pratiche agricole 

compatibili con eventi atmosferici di grave intensità e con possibili mutamenti 

del clima, azioni di prevenzione e controllo degli incendi in considerazione del 

possibile incremento di focolai causato dall‟aumento delle temperature, azioni 

di manutenzione delle foreste per aumentare la loro resistenza ai cambiamenti 

climatici, riedificazione di muri in pietra a secco nelle zone collinari per 

permettere una gestione più efficiente del suolo e dell‟acqua). Nei termini 

appena accennati, gli RDP possono dunque essere considerati quali efficaci 

misure di adattamento ai cambiamenti climatici. 

Nel panorama frammentato delle iniziative nazionali che toccano i 

cambiamenti climatici è interessante far menzione di due attività che sono 

state intraprese recentemente dal MIPAAF: la prima, dal 2001 al 2004, relativa 

ad un progetto di ricerca denominato “Climagri” che riguardava prettamente il 

rapporto tra cambiamenti climatici e agricoltura, cui ha fatto seguito la 

seconda, nel 2008, relativa ad un progetto di ricerca denominato 

“Agroscenari”. 

La finalità del progetto “Climagri” è stata quella di svolgere una ricerca nel 

settore dell'agrometeorologia, per iniziare a studiare le conseguenze dei 

cambiamenti climatici sull'attività agricola e i modi per fronteggiarle; a tal fine 

si è provveduto in primo luogo all'acquisizione di un'analisi agroclimatica del 

territorio nazionale a tutto campo, evidenziando anomalie e cambiamenti 

125 Cfr. MIPAAF (cur.), Difendiamo il nostro bene più prezioso: la Terra - Schema di documento di posizione del sistema 

rurale italiano rispetto alle politiche internazionali sul clima, paper, 2009, p.7.



climatici in atto o previsti, con riferimento specifico al potenziale impatto 

sull'agricoltura italiana 126 . 

La finalità del progetto di ricerca “Agroscenari” è stata quella di individuare, 

valutandone la sostenibilità, le modalità di adattamento ai cambiamenti 

climatici di alcuni principali sistemi produttivi dell‟agricoltura italiana 127 : 

questo studio è stato svolto su due distinti ambiti temporali del processo di 

adattamento, uno a breve termine (5 anni), l‟altro a lungo termine (30 anni) 128 . 

Di fonte comunitaria è, invece, un‟altra iniziativa che ha ripercussioni sulle 

tematiche attinenti ai cambiamenti climatici; si tratta cioè dell‟istituzione in 

Italia nel 2007 (per il periodo di programmazione 2007-2013) della Rete 

Rurale Nazionale (RRN), iniziativa che si basa sulle disposizioni del 

regolamento (CE) 1698/2005 129 sul “sostegno allo sviluppo rurale da parte del 

Fondo europeo agricolo per lo sviluppo rurale (FEASR)”. La RRN ha un 

duplice scopo: in primo luogo quello di assicurare il necessario collegamento 

con l‟analoga rete istituita a livello europeo; in secondo luogo quello di 

individuare e trasferire buone pratiche, organizzare scambi di esperienze, 

preparare programmi di formazione e, più in generale, conoscere e diffondere 

i risultati delle nuove politiche di sviluppo rurale 130 ; ciò in risposta alle esigenze 

che sono alla base dell‟istituzione del programma della Rete Rurale Nazionale, 

vale a dire quelle di soddisfare bisogni specifici in materia di formazione, 

diffusione delle informazioni e supporto agli scambi relativi alle buone 

pratiche conseguenti all‟identificazione di problematiche comunitarie e 

nazionali in materia di biodiversità, risorse idriche, cambiamenti climatici, 

protezione del suolo. 

Va segnalato al riguardo che il regolamento (CE) 1698/2005 è stato 

recentemente modificato per mezzo del regolamento (CE) 74/2009 131 : infatti, 

da quest‟ultimo atto si evince che il Consiglio dell‟Unione europea, preso atto 

dei gravi problemi connessi alla carenza idrica e alla siccità, nelle conclusioni 

del 30 ottobre 2007 sul tema “Carenza idrica e siccità” ha evidenziato 

l‟esigenza di prestare maggiore attenzione alla gestione delle risorse idriche 

nonché alla qualità delle acque nell'ambito dei pertinenti strumenti della PAC; 

ha inoltre sottolineato che una gestione sostenibile delle risorse idriche è 

essenziale per l'agricoltura europea, sia ai fini di un consumo di acqua per 

un‟agricoltura più razionale in termini quantitativi, sia allo scopo di preservare 

la qualità dell'acqua; ed infine ha posto in risalto che le previsioni riguardanti i 

126 Cfr. il sito internet del progetto di ricerca Climagri, in . 

127 In particolare si tratta della viticoltura, olivicoltura e cerealicoltura nelle zone collinari dell‟Italia Centro- 

Meridionale, dell‟orticoltura intensiva in zone irrigue dell‟Italia Centro-Meridionale, della cerealicoltura per 

fini zootecnici nella Pianura Padana, della frutticoltura intensiva nella Pianura Padana sud-orientale. 

128 Cfr. il sito internet del progetto di ricerca Agroscenari, in . 

129 In GUUE serie L n°277 del 21 ottobre 2005. 

130 L.M. Morelli (cur.), Il contributo dei piani di sviluppo rurale e della condizionalità alla mitigazione dei cambiamenti 

climatici e al loro adattamento, in Il Futuro nella rete, nov. 2008, reperibile in . 

131 In GUUE serie L n°30 del 31 gennaio 2009.



cambiamenti climatici indicano come probabile un aumento, in frequenza e in 

estensione geografica, dei fenomeni di siccità. Ciò premesso, nel regolamento 

(CE) 74/2009 sono stati predisposti degli strumenti che apportano un 

contributo all‟azione a tutela del clima. Si legge, infatti, all‟art. 1, par. 2, che “a 

decorrere dal 1° gennaio 2010, gli Stati membri prevedono nei programmi di sviluppo 

rurale, in funzione delle loro particolari esigenze, tipi di operazioni rispondenti alle seguenti 

priorità, enunciate negli orientamenti strategici comunitari e meglio specificate nei piani 

strategici nazionali: a) cambiamenti climatici; b) energie rinnovabili; c) gestione delle risorse 

idriche; d) biodiversità; ...”. 

Per quel che riguarda specificamente il comparto delle foreste va segnalata 

l‟inziativa di adattamento costituita dall‟attività di prevenzione dagli incendi. A 

causa dei cambiamenti climatici e in particolare per l‟aumento sia delle 

temperature medie sia del fenomeno delle onde di calore, si ritiene che gli 

episodi di incendi boschivi possano far registrare in futuro un incremento 

numerico e di intensità. 

Con la medesima finalità di prevenire gli incendi boschivi, secondo quanto 

prescritto dalla Legge-quadro in materia di incendi boschivi 132 , sono stati 

sviluppati sia Piani Antincendi Boschivi sia un Piano per le riserve naturali 

dello Stato. 

Per ciò che attiene, infine, alle politiche di riconversione va segnalato che, ad 

oggi, esse sono perlopiù limitate a dichiarazioni programmatiche 133 e toccano 

il tema dei cambiamenti climatici solamente in maniera indiretta. Tra le 

principali iniziative di riconversione in corso si possono segnalare il Piano 

Nazionale per la Biodiversità 134 ed il Piano d'Azione Nazionale per combattere la 

desertificazione e la siccità 135 . In questo contesto sono state progettate particolari 

misure quali, ad esempio, quelle relative alla “Istituzione di centri di 

sperimentazione della riconversione agricola” 136 , o ad interventi di neo-bocage 137 

132 Legge n°353 del 21 novembre 2000 (in GU n°280 del 30 novembre 2000). 

133 Cfr. Fourth National Communication under the UN Framework Convention on Climate Change, cit. 

134 Sul punto cfr. La Strategia Nazionale per la Biodiversità: un percorso condiviso e partecipato (cur. MATTM), 18 

giugno 2010; reperibile in 

. Si segnala a questo proposito che in 

concomitanza con la ricorrenza dell‟anno internazionale per la biodiversità (2010), con decreto del MATTM 

del 5 marzo 2010 (in GU n°84 del 12 aprile 2010), è stato istituito un apposito “Comitato nazionale per la 

biodiversità”. 

135 Adottato con delibera CIPE n°229 del 21 dicembre 1999; sul punto cfr. La lotta alla desertificazione in Italia: 

stato dell‟arte e linee guida per la redazione di proposte progettuali di azioni locali (cur. APAT – CNLSD – NRD), 

ottobre 2006; reperibile in 

. 

136 Si tratta dell'Azione 5.1.2 formulata nell‟ambito del Piano Nazionale per la Biodiversità da parte del 

Comitato di consulenza per la biodiversità e la bioetica. 

137 Per bocage si intende una regione i cui campi e prati sono delimitati da terrapieni sormontati da siepi o da 

file di alberi che ne demarcano i confini. Si parla di neo-bocage quando il bocage è modernizzato ed è eseguito in 

maniera compatibile con l'agricoltura intensivo-industriale e con la possibilità di utilizzare grandi mezzi 

agricoli.



nelle campagne italiane come strumento mirato alla conservazione della 

diversità biologica nei terreni agricoli. 

PARTE III - CONSERVAZIONE E TUTELA DEGLI HABITAT NATURALI 

Per quanto attiene la conservazione e la tutela degli habitat naturali e le relative 

politiche di adattamento ai cambiamenti climatici, anche queste risentono 

dell'assenza di un Piano Nazionale di Adattamento. Infatti esistono molteplici 

iniziative e normative nazionali e sovranazionali che mirano a tale ambizioso 

obiettivo e che sebbene non specificamente progettate e realizzate con tale 

fine possono di fatto avere ricadute positive sulle strategie di adattamento ai 

cambiamenti climatici. 

Sembrerebbe fare eccezione a quanto detto la definizione di una Strategia 

Nazionale sulla Biodiversità 138 , che in ottemperanza a quanto previsto dalla 

Convenzione sulla diversità biologica 139 ha fatto avviare all'Italia la 

progettazione di specifiche azioni da intraprendere con riguardo alle politiche 

di adattamento 140 . 

Con specifica attenzione alle aree protette va segnalata l'implementazione 

attuata dall'Italia della direttiva Habitat e Rete Natura 2000 141 , che insieme alla 

direttiva Uccelli costituiscono il nocciolo duro della strategia europea alla 

conservazione della natura. Cui peraltro si affiancano la CITES (Convenzione 

sul commercio internazionale delle specie di fauna e flora in via di estinzione) 

e la Convenzione sulla conservazione delle specie migratorie selvatiche alle 

quali l'Italia ha aderito 142 . 

All'interno di detto quadro comunitario a livello nazionale il riferimento più 

rilevante in tale materia è sicuramente rappresentato dal modello giuridico 

italiano di conservazione e gestione applicato nelle aree protette (cui va 

affiancata la Legge 979 del 31 Dicembre 1982 per la difesa del mare). 

Introdotto con la Legge Quadro n. 394 del 6 Dicembre 1991, il modello 

italiano in materia di aree protette assume particolare rilevanza in riferimento 

al modello Europeo, all'interno del modello di conservazione e di 

valorizzazione implementato dagli stati membri dell'Unione europea. Infatti, la 

Legge quadro identifica le aree protette come nuovi soggetti amministrativi, 

138 Blasi C. et al. (2009) “National Biodiversity Strategy in Italy” MATTM, Nature Protection Directorate, 

consultabile in 

 

139 Ratificata in Italia nel 1994. 

140 Ministero per la tutela dell'ambiente e del Territorio/WWF, Cambiamenti climatici e biodiversità. Studio della 

mitigazione e proposte per l‟adattamento, 2009, reperibile in . 

141 Su cui tra i primi scritti su tale argomento cfr. D. Amirante (cur.), La conservazione della natura in Europa. La 

direttiva Habitat ed il processo di costruzione della rete "Natura 2000", Milano, Franco Angeli, 2003. 

142 Cfr. Fifth National Communication under the UN Framework Convention on Climate Change, cit., p. 144 s.



cioè come soggetti amministrativi con giurisdizione sezionale destinatari di 

autonomia tecnico scientifica. Relativamente ai territori protetti, lo sviluppo 

tecnologico del potere amministrativo, combinato con l'enorme possibilità di 

sviluppo eco-compatibile abbinato alla protezione integrale delle risorse 

naturali, consente la modernizzazione delle strategie gestionali ed assicura 

l'effettività delle politiche di conservazione. 

Oltre ai succitati esempi infine vanno segnalati l'INES (Inventario Nazionale 

delle Emissioni e loro Sorgenti), e l'EPER (European Pollutant Emission Register) 

che sono registri integrati nati nell'ambito della direttiva 96/61/CE, meglio 

nota come direttiva IPPC (Integrated Pollution Prevention and Control). Essi 

sono il risultato di un approccio integrato alla gestione ambientale che 

coinvolge i governi, le industrie e il pubblico e dà la possibilità a quest'ultimo 

di esercitare il proprio diritto di accesso ad informazioni ambientali in maniera 

semplice attraverso la moderna tecnologia. 

Infine va citato l‟inventario nazionale delle emissioni in atmosfera 

(CORENAIR-IPCC) che raccoglie i dati delle emissioni in aria dei gas-serra 

e di altre sostanze.



APPENDICE: PRINCIPALE NORMATIVA IN VIGORE 

INERENTE AL CAMBIAMENTO CLIMATICO 

Legge - 23/07/2009 , n. 99 

LEGGE 23 luglio 2009 , n. 99 (in Suppl. ordinario n. 136 alla Gazz. Uff., 31 

luglio, n. 176). - Disposizioni per lo sviluppo e l'internazionalizzazione delle 

imprese, nonche' in materia di energia. 

COMUNICATO DEL MINISTERO DELL'AMBIENTE E DELLA 

TUTELA DEL TERRITORIO - 13/05/2009 , n. 38284 - Gazzetta Uff. 

13/05/2009 , n.109 


TUTELA DEL TERRITORIO 13 maggio 2009 (in Gazz. Uff., 13 maggio, n. 

109). - Approvazione di deliberazioni del Comitato nazionale di gestione e 

attuazione della direttiva 2003/87/CE. 

Art.1 

Sono state pubblicate nel sito web del Ministero dell'ambiente e della tutela del 

territorio e del mare (http://www.minambiente.it): le deliberazioni n. 11/2009 

e n. 12/2009 inerenti l'aggiornamento delle autorizzazioni ed il rilascio 

dell'autorizzazione ad emettere gas a effetto serra ai sensi del decreto 

legislativo 4 aprile 2006, n. 216 e successive modifiche e integrazioni e le 

deliberazioni n. 13/2009, n. 15/2009 e n. 18/2009 sull'assegnazione e rilascio 

delle quote ai nuovi entranti. 

DELIBERAZIONE DEL MINISTERO DELL'AMBIENTE E DELLA 

TUTELA DEL TERRITORIO - 10/04/2009 , n. 14 - Gazzetta Uff. 

04/06/2009 , n.127 


TUTELA DEL TERRITORIO 10 aprile 2009, n. 14 (in Gazz. Uff., 4 giugno, 

n. 127). - Disposizioni di attuazione della decisione della Commissione 

europea 2007/589/CE istitutiva delle linee guida per il monitoraggio e la 

comunicazione delle emissioni di gas a effetto serra ai sensi della direttiva 

2003/87/CE del Parlamento europeo e del Consiglio. (Deliberazione n. 

14/2009). 

L. 24 dicembre 2007, n. 244 (legge finanziaria 2008) 

«La L. 24 dicembre 2007, n. 244 (legge finanziaria 2008) detta una serie di 

disposizioni volte a dare un ulteriore impulso all'applicazione della normativa 

in tema di certificazione energetica degli edifici e di utilizzo delle fonti 

rinnovabili di energia.



Gli aspetti su cui la disciplina interviene, sempre ai fini del rispetto degli 

impegni assunti dallo Stato italiano con la firma del Protocollo di Kyoto (36), 

riguardano la riduzione dei consumi e delle emissioni degli impianti da 

realizzare nelle nuove costruzioni, da perseguire con la certificazione 

energetica degli edifici la cui acquisizione viene resa obbligatoria per il rilascio 

del titolo edilizio (permesso di costruire) e per l'utilizzo degli immobili. Sotto 

altro profilo, l'introduzione di fonti rinnovabili di energia viene favorita per lo 

più con incentivi economici, al fine di ridurre la produzione di energia 

mediante l'utilizzo di carburanti fossili. » 

DECRETO DEL MINISTERO DELL'AMBIENTE E DELLA TUTELA 

DEL TERRITORIO - 18/12/2006 , n. 25195 - Gazzetta Uff. 13/02/2007 

, n.36 


DEL TERRITORIO 18 dicembre 2006 (in Suppl. Ordinario n. 35 alla Gazz. 

Uff., 13 febbraio, n. 36).- Approvazione del Piano nazionale di assegnazione 

delle quote di CO2 per il periodo 2008-2012 (PNA II). (approvato dalla 

Commissione europea con decisione del 15 maggio 2007) 

DECRETO LEGISLATIVO 30 maggio 2008 n. 115 (in Gazz. Uff., 3 luglio, 

n. 154). - Attuazione della direttiva 2006/32/CE relativa all'efficienza degli usi 

finali dell'energia e i servizi energetici e abrogazione della direttiva 

93/76/CEE. 

DECRETO LEGISLATIVO 7 marzo 2008, n. 51 (in Gazz. Uff., 7 aprile, n. 

82). - Modifiche ed integrazioni al decreto legislativo 4 aprile 2006, n. 216, 

recante attuazione delle direttive 2003/87/CE e 2004/101/CE in materia di 

scambio di quote di emissione dei gas a effetto serra nella Comunita', con 

riferimento ai meccanismi di progetto del protocollo di Kyoto. 

DECRETO LEGISLATIVO 4 aprile 2006 n.216 (in Suppl. Ordinario n. 150 

alla Gazz. Uff., 19 giugno, n. 140). - Attuazione delle direttive 2003/87 e 

2004/101/CE in materia di scambio di quote di emissioni dei gas a effetto 

serra nella Comunità, con riferimento ai meccanismi di progetto del 

Protocollo di Kyoto. 

Direttiva 2003/87/CE 

Attuazione della direttiva 2003/87/CE sull'Emissions Trading. 

Recepita con la legge Comunitaria 2004 (L.18.04.2005, n.62)



Delibera CIPE 19 dicembre 2002, n.123. Revisione delle linee guida per le 

politiche e misure nazionali di riduzione delle emissioni dei gas serra (legge 

120/2002) 

LEGGE 1 giugno 2002, n.120 

Ratifica ed esecuzione del Protocollo di Kyoto alla Convenzione quadro delle 

Nazioni Unite sui cambiamenti climatici, fatto a Kyoto l'11 dicembre 1997. 

DECISIONE DEL CONSIGLIO del 25 aprile 2002 n. 358 

Approvazione, a nome della Comunità europea, del protocollo di Kyoto 

allegato alla convenzione quadro delle Nazioni Unite sui cambiamenti 

climatici e l'adempimento congiunto dei relativi impegni. 

DM - Ministero Ambiente 4 giugno 2001 Programmi di rilievo nazionale per 

la riduzione delle emissioni di gas serra, in attuazione dell'art. 3 del decreto 

ministeriale 20 luglio 2000, n. 337. 

COMUNICAZIONE DELLA COMMISSIONE AL CONSIGLIO, AL 

PARLAMENTO EUROPEO, AL COMITATO ECONOMICO E 

SOCIALE E AL COMITATO DELLE REGIONI 

Comunicazione sul Sesto programma di azione per l'ambiente della Comunità 

europea" Ambiente 2010: il nostro futuro, la nostra scelta" - Sesto programma 

di azione per l'ambiente COM (2001) 31 definitivo - 2001/0029 (COD) 

Risoluzione del Parlamento europeo 

Risoluzione del Parlamento europeo sulla comunicazione della Commissione 

dal titolo "Politiche e misure dell'Unione europea per ridurre le emissioni di 

gas a effetto serra verso un programma europeo per il cambiamento 

climatico" (ECCP) (COM(2000) 88 - C5-0192/2000 - 2000/2103(COS). 

LEGGE 23 dicembre 2000, n. 388. Disposizioni per la formazione del 

bilancio annuale e pluriennale dello Stato (legge finanziaria 2001). (all'art.110) 

Istitutiva del fondo per la riduzione delle emissioni in atmosfera e per la 

promozione dell'efficienza energetica e delle fonti sostenibili di energia. (3% 

dell'entrate derivanti dall'applicazione delle tassazioni sulle emissioni di 

anidride carbonica di cui all'art.8 della legge finanziaria 1999 –legge 448 del 

1998-. 

DECRETO MINISTERIALE 20 luglio 2000, n.337 MINISTERO 

DELL'AMBIENTE 

Regolamento recante criteri e modalita' di utilizzazione delle risorse destinate 

per l'anno 1999 alle finalita' di cui all'articolo 8, comma 10, lettera f), della 

legge 23 dicembre 1998, n. 448.



COMITATO INTERMINISTERIALE PER LA PROGRAMMAZIONE 

ECONOMICA DELIBERAZIONE 21 dicembre 1999 n. 218 

Programma nazionale per l'informazione sui cambiamenti climatici: iniziative 

prioritarie. 

COMITATO INTERMINISTERIALE PER LA PROGRAMMAZIONE 

ECONOMICA DELIBERAZIONE 21 dicembre 1999, n. 266 

Programma nazionale per la ricerca sul clima - Temi di ricerca prioritari. 

DELIBERAZIONE DEL COMITATO INTERMINISTERIALE PER LA 

PROGRAMMAZIONE ECONOMICA 19 novembre 1998, n. 137/98 (in 

Gazz. Uff., 10 febbraio, n. 33). - Linee guida per le politiche e misure nazionali 

di riduzione delle emissioni dei gas serra. 

DELIBERAZIONE DEL COMITATO INTERMINISTERIALE PER LA 

PROGRAMMAZIONE ECONOMICA 5 agosto 1998, n. 79/98 (in Gazz. 

Uff., 15 ottobre, n. 241). - Istituzione e regolamento delle commissioni 

previste dalla delibera CIPE n. 63/98 del 9 luglio 1998 (1). 

(1) Per l'integrazione della composizione delle commissioni istituite in seno al 

CIPE vedi la Deliberazione CIPE 9 luglio 1998, la Deliberazione CIPE 11 

novembre 1998, n. 128, la Deliberazione CIPE 21 aprile 1999, n. 48, la 

Deliberazione CIPE 9 giugno 1999, n. 94 e la Deliberazione CIPE 20 luglio 

2007 n. 68 . 

ALTRE FONTI 

- “Libro Bianco sulle fonti rinnovabili” (delibera n. 126 del 6.8.99); 

- “Programma Nazionale per la valorizzazione delle Biomasse agricole e 

forestali” 

(delibera n. 217 del 21.12.99); 

- “Programma Nazionale per l‟informazione sui Cambiamenti Climatici” 

(delibera n. 218 

del 21.12.99); 

- “Programma Nazionale per la ricerca sul clima” (delibera n.226 del 21.12.99); 

- “Programma nazionale biocombustibili (PROBIO) (delibera n. 27 del 

15.2.2000); 

uest'ultimo 

Legge - 23/07/2009 , n. 99 

LEGGE 23 luglio 2009 , n. 99 (in Suppl. ordinario n. 136 alla Gazz. Uff., 31 

luglio, n. 176). - Disposizioni per lo sviluppo e l'internazionalizzazione delle 

imprese, nonche' in materia di energia.




TUTELA DEL TERRITORIO - 13/05/2009 , n. 38284 - Gazzetta 

Uff. 13/05/2009 , n.109 


TUTELA DEL TERRITORIO 13 maggio 2009 (in Gazz. Uff., 13 maggio, n. 

109). - Approvazione di deliberazioni del Comitato nazionale di gestione e 

attuazione della direttiva 2003/87/CE. 

Art.1 

Sono state pubblicate nel sito web del Ministero dell'ambiente e della tutela del 

territorio e del mare (http://www.minambiente.it): le deliberazioni n. 11/2009 

e n. 12/2009 inerenti l'aggiornamento delle autorizzazioni ed il rilascio 

dell'autorizzazione ad emettere gas a effetto serra ai sensi del decreto 

legislativo 4 aprile 2006, n. 216 e successive modifiche e integrazioni e le 

deliberazioni n. 13/2009, n. 15/2009 e n. 18/2009 sull'assegnazione e rilascio 

delle quote ai nuovi entranti. 

DELIBERAZIONE DEL MINISTERO DELL'AMBIENTE E 

DELLA TUTELA DEL TERRITORIO - 10/04/2009 , n. 14 - 

Gazzetta Uff. 04/06/2009 , n.127 


TUTELA DEL TERRITORIO 10 aprile 2009, n. 14 (in Gazz. Uff., 4 giugno, 

n. 127). - Disposizioni di attuazione della decisione della Commissione 

europea 2007/589/CE istitutiva delle linee guida per il monitoraggio e la 

comunicazione delle emissioni di gas a effetto serra ai sensi della direttiva 

2003/87/CE del Parlamento europeo e del Consiglio. (Deliberazione n. 

14/2009). 

L. 24 dicembre 2007, n. 244 (legge finanziaria 2008) 

«La L. 24 dicembre 2007, n. 244 (legge finanziaria 2008) detta una serie di 

disposizioni volte a dare un ulteriore impulso all'applicazione della normativa 

in tema di certificazione energetica degli edifici e di utilizzo delle fonti 

rinnovabili di energia. 

Gli aspetti su cui la disciplina interviene, sempre ai fini del rispetto degli 

impegni assunti dallo Stato italiano con la firma del Protocollo di Kyoto (36) , 

riguardano la riduzione dei consumi e delle emissioni degli impianti da 

realizzare nelle nuove costruzioni, da perseguire con la certificazione 

energetica degli edifici la cui acquisizione viene resa obbligatoria per il rilascio



del titolo edilizio (permesso di costruire) e per l'utilizzo degli immobili. Sotto 

altro profilo, l'introduzione di fonti rinnovabili di energia viene favorita per lo 

più con incentivi economici, al fine di ridurre la produzione di energia 

mediante l'utilizzo di carburanti fossili. » 

DECRETO DEL MINISTERO DELL'AMBIENTE E DELLA 

TUTELA DEL TERRITORIO - 18/12/2006 , n. 25195 - Gazzetta 

Uff. 13/02/2007 , n.36 


DEL TERRITORIO 18 dicembre 2006 (in Suppl. Ordinario n. 35 alla Gazz. 

Uff., 13 febbraio, n. 36).- Approvazione del Piano nazionale di assegnazione 

delle quote di CO2 per il periodo 2008-2012 (PNA II). (approvato dalla 

Commissione europea con decisione del 15 maggio 2007) 

DECRETO LEGISLATIVO 30 maggio 2008 n. 115 (in Gazz. Uff., 3 

luglio, n. 154). - Attuazione della direttiva 2006/32/CE relativa all'efficienza 

degli usi finali dell'energia e i servizi energetici e abrogazione della direttiva 

93/76/CEE. 

DECRETO LEGISLATIVO 7 marzo 2008, n. 51 (in Gazz. Uff., 7 aprile, 

n. 82). - Modifiche ed integrazioni al decreto legislativo 4 aprile 2006, n. 216, 

recante attuazione delle direttive 2003/87/CE e 2004/101/CE in materia di 

scambio di quote di emissione dei gas a effetto serra nella Comunita', con 

riferimento ai meccanismi di progetto del protocollo di Kyoto. 

DECRETO LEGISLATIVO 4 aprile 2006 n.216 (in Suppl. Ordinario n. 

150 alla Gazz. Uff., 19 giugno, n. 140). - Attuazione delle direttive 2003/87 e 

2004/101/CE in materia di scambio di quote di emissioni dei gas a effetto 

serra nella Comunità, con riferimento ai meccanismi di progetto del 

Protocollo di Kyoto. 

Direttiva 2003/87/CE 

Attuazione della direttiva 2003/87/CE sull'Emissions Trading. 

Recepita con la legge Comunitaria 2004 (L.18.04.2005, n.62) 

Delibera CIPE 19 dicembre 2002, n.123. Revisione delle linee guida per le 

politiche e misure nazionali di riduzione delle emissioni dei gas serra (legge 

120/2002) 

LEGGE 1 giugno 2002, n.120



Ratifica ed esecuzione del Protocollo di Kyoto alla Convenzione quadro delle 

Nazioni Unite sui cambiamenti climatici, fatto a Kyoto l'11 dicembre 1997. 

DECISIONE DEL CONSIGLIO del 25 aprile 2002 n. 358 

Approvazione, a nome della Comunità europea, del protocollo di Kyoto 

allegato alla convenzione quadro delle Nazioni Unite sui cambiamenti 

climatici e l'adempimento congiunto dei relativi impegni. 

DM - Ministero Ambiente 4 giugno 2001 Programmi di rilievo nazionale 

per la riduzione delle emissioni di gas serra, in attuazione dell'art. 3 del decreto 

ministeriale 20 luglio 2000, n. 337. 

COMUNICAZIONE DELLA COMMISSIONE AL CONSIGLIO, AL 

PARLAMENTO EUROPEO, AL COMITATO ECONOMICO E 

SOCIALE E AL COMITATO DELLE REGIONI 

Comunicazione sul Sesto programma di azione per l'ambiente della Comunità 

europea" Ambiente 2010: il nostro futuro, la nostra scelta" - Sesto programma 

di azione per l'ambiente COM (2001) 31 definitivo - 2001/0029 (COD) 

Risoluzione del Parlamento europeo 

Risoluzione del Parlamento europeo sulla comunicazione della Commissione 

dal titolo "Politiche e misure dell'Unione europea per ridurre le emissioni di 

gas a effetto serra verso un programma europeo per il cambiamento 

climatico" (ECCP) (COM(2000) 88 - C5-0192/2000 - 2000/2103(COS). 

LEGGE 23 dicembre 2000, n. 388. Disposizioni per la formazione del 

bilancio annuale e pluriennale dello Stato (legge finanziaria 2001). (all'art.110) 

Istitutiva del fondo per la riduzione delle emissioni in atmosfera e per la 

promozione dell'efficienza energetica e delle fonti sostenibili di energia. (3% 

dell'entrate derivanti dall'applicazione delle tassazioni sulle emissioni di 

anidride carbonica di cui all'art.8 della legge finanziaria 1999 –legge 448 del 

1998-. 

DECRETO MINISTERIALE 20 luglio 2000, n.337 MINISTERO 

DELL'AMBIENTE 

Regolamento recante criteri e modalita' di utilizzazione delle risorse destinate 

per l'anno 1999 alle finalita' di cui all'articolo 8, comma 10, lettera f), della 

legge 23 dicembre 1998, n. 448. 

COMITATO INTERMINISTERIALE PER LA 

PROGRAMMAZIONE ECONOMICA DELIBERAZIONE 21 

dicembre 1999 n. 218



Programma nazionale per l'informazione sui cambiamenti climatici: iniziative 

prioritarie. 

COMITATO INTERMINISTERIALE PER LA 

PROGRAMMAZIONE ECONOMICA DELIBERAZIONE 21 

dicembre 1999, n. 266 

Programma nazionale per la ricerca sul clima - Temi di ricerca prioritari. 

DELIBERAZIONE DEL COMITATO INTERMINISTERIALE PER 

LA PROGRAMMAZIONE ECONOMICA 19 novembre 1998, n. 137/98 

(in Gazz. Uff., 10 febbraio, n. 33). - Linee guida per le politiche e misure 

nazionali di riduzione delle emissioni dei gas serra. 

DELIBERAZIONE DEL COMITATO INTERMINISTERIALE PER 

LA PROGRAMMAZIONE ECONOMICA 5 agosto 1998, n. 79/98 (in 

Gazz. Uff., 15 ottobre, n. 241). - Istituzione e regolamento delle commissioni 

previste dalla delibera CIPE n. 63/98 del 9 luglio 1998 (1). 

(1) Per l'integrazione della composizione delle commissioni istituite in seno al 

CIPE vedi la Deliberazione CIPE 9 luglio 1998, la Deliberazione CIPE 11 

novembre 1998, n. 128, la Deliberazione CIPE 21 aprile 1999, n. 48, la 

Deliberazione CIPE 9 giugno 1999, n. 94 e la Deliberazione CIPE 20 luglio 

2007 n. 68 . 

ALTRE FONTI: 

- “Libro Bianco sulle fonti rinnovabili” (delibera n. 126 del 6.8.99); 

- “Programma Nazionale per la valorizzazione delle Biomasse agricole e 

forestali” 

(delibera n. 217 del 21.12.99); 

- “Programma Nazionale per l‟informazione sui Cambiamenti 

Climatici” (delibera n. 218 

del 21.12.99); 

- “Programma Nazionale per la ricerca sul clima” (delibera n.226 del 

21.12.99); 

- “Programma nazionale biocombustibili (PROBIO) (delibera n. 27 del 

15.2.2000);

HEDGE FUNDS, PRIVATE EQUITY FUNDS AND SOVEREIGN 

FUNDS 

_______________________________________________ 

RAFFAELE LENER * 

1. Legal issues relating to hedge funds (HF) and private equity 

funds (PEF). 

1. The existence of a legal regime, whether in regulation or outside 

regulation could be mentioned briefly. Analysis of the different regulations 

relating to hedge funds can i.e. be found in the recent IOSCO consultation 

paper. 

In Italy there is a legal regime regarding the HF and the PEF. 

These funds are regulated by: 

(i) the Consolidated Law on Finance – Italian Legislative Decree of 24 

February 1998, no. 58 (―TUF‖); 

(ii) the Italian Decree of the Ministry of Finance of 24 May 1999, no. 228 

(―D.M.‖); 

(iii) the joint regulation on the organisation and procedure of intermediaries 

providing for the investment or portfolio management services, issued by the 

Bank of Italy and CONSOB (Commissione Nazionale per le Società e la Borsa) on 

29 October 2007 (the ―Joint Regulation‖); 

(iv) the Supervisory regulations on asset management companies/collective 

investment undertakings, including the Regulation of the Bank of Italy of 14 

April 2005 on undertakings for collective investment in transferable securities 

(the ―Bank of Italy Regulation‖); 

(v) the Government anti-crisis measures contained in Italian Decree no. 

185 of 29 November 2008, converted into Italian Law no. 2 of 28 January 

2009 (the ―Decree 185‖) and implementing Bank of Italy regulations of 16 

December 2008 (the ―December 2008 Bank of Italy Regulations‖) with 

the aim of limiting any increase in requests for the early redemptions of units 

due to the current situation in the financial markets. 

The question will arise as to the definition of HF or PEF: I would propose 

that we do not attempt to draw up a definition, as this has proved impossible 

* Raffaele Lener is Professor of Comparative Private Law at the University of Tor Vergata, Rome



by several international regulatory bodies. Especially for HF, the formula is so 

elusive and adapts so rapidly to market circumstances that any definition 

would run behind the facts. One can refer to attempts made by i.a. the 

IOSCO paper mentioned in the attached list. 

In the more recent terminology, HF are referred to as ―private pools of 

capital‖ and I‘m not sure that is a right designation. 

2. If there is regulation specifically applicable to HF and PE funds, please 

mention the nature and general features of the regulation, e.g. whether this is 

public or private regulation, and in the latter case, if it is followed up in 

practice, and enforced by some external body. 

The regulation specifically applicable to HF and PEF, indicated above, is a 

public regulation, followed up by the asset management companies (―SGR‖), 

which manage the fund, and enforced by the relevant Italian authorities: Bank 

of Italy and CONSOB. 

Most of the HF are registered in some tax heaven: why is this feature 

considered important for the application of the regulation in your jurisdiction? 

I do not believe that the registration of the HF in tax heaven may have a 

direct impact on the application of the regulation in Italy. 

3. How many of these funds are registered? 

If the question concerns ―HF registered in tax heaven‖ I am not aware of this 

kind of information. 

4. As to the general purport, it would be useful to indicate whether the 

regulation addresses the manager, or also the fund, as both systems are 

practised. The main subjects that are covered in the regulation should also be 

mentioned, e.g. whether there is registration of the manager, what are the 

criteria applicable to it, are there restrictions with other activities e.g. asset 

management for other funds that HF. 

The management of the funds at hand is reserved to SGR authorised by and 

registered with the Bank of Italy. Italian regulation addresses the SGR as well 

as funds and provides for detailed rules in respect of both of them. 

With reference to the main subjects dealt with in relation to SGR, Italian 

provisions concern, inter alia: 

- the authorisation by the Bank of Italy to act as a SGR; (the relevant 

requirements are, for example, a minimum share capital, the integrity, 

professional and independence requirements for the members of its bodies; a


Hedge Funds, Private Equity Funds and Sovereign Funds 

programme of activities and a report on the organisational structure that the 

SGR is required to file when asking for the authorisation, etc.) 

- the registration of the SGR - following the authorisation by the Bank of 

Italy; 

- the constraints for having shareholdings in other companies; 

- a list of permitted activities for the SGR; 

- specific provisions in case of mergers and de-mergers between SGR; 

- accounting provisions; 

- provisions concerning the deposit and sub-deposit of the financial 

instruments and money pertaining to clients; 

- the shareholders of SGR; 

- the organisation of SGR (e.g. administrative and accounting 

organisation); 

- the information/communications to be sent to the authority; 

- the power of inspection of the Bank of Italy; 

- accounting prospectuses; 

With reference to the main subjects dealt with in relation to the funds, Italian 

provisions concern, inter alia: 

- the general criteria and minimum content that the regulation of fund is 

required to comply with; 

- procedures for the approval of the regulation of fund; 

- the investments, proscriptions and prudential provisions connected to 

the risk; 

- the criteria for the assessment of the assets and calculation of the fund 

unit value; 

- specific provisions in case of mergers and de-mergers between funds; 

- details on the certificates representing the participations to funds; 

- details on the depositary bank.



5. In the future it is likely that the regulation will be more developed 

about the creation of HF and PEF: own funds, gearing ratio‘s, conduct of 

business rules, information and /or disclosure rules, accounting provisions, 

rules on manager‘s remuneration. 

With reference to any further provisions which may be developed in the 

future, it should be noted that, following the financial crisis, the European 

Commission, has focused its attention on the activity of both hedge and 

private equity funds, drafting, together with the Council, on 30 April 2009, a 

Proposal for a new directive on alternative investment fund managers 

(hereinafter the ―Proposal for directive‖), with the precise aim of preventing, 

for the future, any repercussions for all financial market participants and for 

the stability of the underlying markets, through specific rules concerning, inter 

alia, the issues mentioned in the question above. 

6. The public - distribution of shares in these funds deserves some 

mention, as in many states, these funds cannot be offered to the public. In 

fact they may be offered indirectly, through Funds of Hedge Funds (FoHF), 

through insurance products, or in other forms. The disclosure and other 

investor protection rules could be different depending on the legal structure 

chosen. Here a few mentions would be useful. What is the status of this 

debate about ―alternative products,‖ or ―substitute products‖? Some in the 

EU consider extending the MiFid 1 rules to all investment products: what is 

your reaction to this? 

In Italy, HF cannot be offered to the public and the most common type of 

fund is the fund of hedge funds (―FoHF‖), also called the ‗fund of second 

level‘, which invests its assets in units of different hedge funds called ‗funds of 

first level‘, mainly operating in the US and off-shore markets. With reference 

to foreign HF, it is worth noting that Italian law provides for a specific 

authorization procedure in connection with their offer in Italy. In particular, 

any offer must be previously authorized by the Bank of Italy, after consulting 

Consob, provided that the fund‘s operational schemes are consistent with 

those provided for Italian funds 

Regarding the status of the debate about the ―alternative products‖ or 

―substitutive products‖ please consider that, according to a Report issued by 

the Bank of Italy, Consob and the Ministry of Finance on July 2008, over the 

last ten years, alternative products, such as HF, ―have proved to be a useful 

instrument for diversifying investment portfolios‖. However, the Report has 

declared that, after ten years from its introduction in Italy, the HF regulation 

should be modified in order to allow further development of this type of 

1 Esp. rules on know your customer, suitability, and so on.



investment and to promote the competition of the Italian funds in the 

international context. In particular, the new regulation should aim at: (i) 

reducing heavily the minimum subscription amount of the investment in HF 

which currently cannot be less than €500,000; (ii) diversifying the regulation 

between FoHF and HF, in order to allow the offer to a broader public. 

However, following the recent financial crisis the proposal put forward by the 

Report above does not appear to be so easy, as the Deputy General Manager 

of the Bank of Italy has recently declared that ―the international market of HF 

is undergoing profound restructuring, the outcome of which is not currently 

predictable. In such situation, it appears to be more opportune to clarify the 

tendency in the international context before proceeding with the modification 

of the internal rules‖. 

With reference to the extension of the MiFid rules to all investment products, 

I believe that it could represent a positive measure in order to strengthen the 

protection of all the investors. 

7. Have there been cases of mis-selling of HFs or FoHFs? Were these 

decided in court? Have investors been indemnified? 

We are not aware of cases of misselling of HFs or FoHFs in Italy. 

8. Except in case of public distribution, it would be useful to have some 

idea about the nature of the holders of shares in these HF or PEF: 

traditionally, it was said that these were wealthy individuals, but it appears that 

apart from FoHF, institutional investors (pension funds, insurance 

companies, investment funds) are increasingly acquiring shares in these funds: 

is the protection regime sufficient, and should regulation contribute to 

improve the position of these not always so sophisticated investors. 

In order to answer to this question, it is necessary to distinguish the HF from 

the PEF. 

With reference to HF, please consider that, in Italy, HF cannot be offered to 

the public and the minimum subscription amount must not be less than 

€500,000. This implies that the holders of shares in Italian HF are institutional 

investors. This also implies that the protection regime provided is sufficient 

for this kind of investors. 

With reference to PEF, the increase of institutional investors is also 

confirmed, although, according to the data published by Italian Private Equity 

and Venture Capital Association (hereinafter ―AIFI‖) on its website, it 

emerges that, with respect to the year 2008, the typical international 

subscribers of PEF (as FoHF are) have been reducing their participation in



PEF, instead of industrial groups and individual investors. Pursuant to a 

survey carried out by AIFI at the end of the year 2007, 85 funds out of 98 

were reserved to institutional investors. 

The level of protection may be improved although, for example, with 

particular reference to Italian pension funds, it should be noted that they have 

been less affected by the financial crisis, compared to other foreign pension 

funds, and this is confirmed by the lack of any massive behaviours (such as an 

escape by subscribers from funds) with respect to Italy. 

According to the report for the year 2008, the opinion of pension funds‘ 

authority (―COVIP‖) in respect of the management and strategies of 

investments made by funds is quite positive, notwithstanding the awareness of 

the need for improvements. 

Restrictions on investments are governed by an Italian Legislative Decree of 

1996, according to which such funds are required to comply, inter alia, with 

the principle of the diversification of investments in order to ensure their 

sound and prudent management. In fact, a pension fund may hold units of 

closed-ended funds not exceeding the limit of 20 % of its assets and 25 % of 

the value of the closed-ended fund. 

It is possible, however, that such restrictions would be amended in such a way 

that may be lead to the aforementioned connection to specific quantitative 

parameters being surpassed, in accordance with a more general European 

concept of the prudent diversification of investments. 

With reference to insurance companies, instead, they are allowed to invest in 

both PEF and HF. However, pursuant to Regulation n. 2530 of 3 July 2007, 

issued by the Italian Insurance Authority (―ISVAP‖), the total investments in 

unlisted, reserved and HF may not exceed 5% of the technical reserves of the 

company, while the exposure of any insurance company towards a single fund 

may not exceed 1% of the same technical reserves. 

9. Where do you stand in this debate about extending the protections to a 

wider public that these so-called sophisticated investors? This is not typical 

for HF but has caused most concern if HF were involved. 

It is crucial in a financial market to extend protection to a wider public. 

10. Do investors in HF and PEF have sufficient information, 

whether on entry or on a continuous basis? Should this be left entirely to the 

freedom of contract or should the law provide for a generic measure. As HF 

are increasingly placed with a large public but even without a public issue how 

should the information system not be adopted? Continuous information on



the evolution of the portfolio is even more important, as investors often are 

left in the dark until it is too late. 

According to the Italian regulations, SGR are required to operate diligently, 

correctly and transparently in the interests of the unit-holders and the integrity 

of the market and the unit-holders are to be informed on the management of 

the fund. Having said that, it is necessary to differentiate the HF from the 

PEF. 

Regarding the information reserved to the investors of HF, please consider 

that, since HF cannot be offered to the public, there is no duty to publish a 

prospectus. This implies that Italian law only provides generic measures 

concerning the information to the investors. However, there is a duty to 

deliver the up-to-date fund rules to each subscribing investor. It is noteworthy 

that the fund rules of an Italian HF must, inter alia, mention: (i) the risks 

deriving from investments (if any) in foreign HFs (e.g.: if such HFs are 

managed from off-shore centers) and (ii) the maximum amount of loans and 

leverage. Moreover, the accounting documents shall be made available to the 

investors and to the public according to the modalities specified in the HF 

rules. 

With reference to the information reserved to the investors of PEF, a balancesheet, 

and a six-month report on the management of the fund should be kept 

at the public‘s disposal on the SGR premises, within 30 days from the relevant 

draft, while the most recent versions of such documents should be made 

available to the public on the depositary bank‘s premises and also at the 

branches indicated in the regulation of the fund. The investors have the right 

to obtain a copy of these documents, free of charge and with home delivery. 

Moreover, notwithstanding the provisions of law, the management of funds 

usually seek the trust of investors in a long-term perspective in order, for 

example, to ensure any further participation by them in any fund raisings they 

would promote in the future. Broadly speaking, for such purpose, PEF usually 

maintain relations with its investors by means of institutional meetings (e.g. 

general meetings of investors, held at least once a year) and periodical reports. 

In this sense it is possible to say that information to investors is left to the 

freedom of contract. 

Notwithstanding the foregoing, according inter alia to the considerations in 

the Proposal for the directive of the European Commission and the Council, 

and in light of the consequences of the financial crisis, it would appear that 

investors do not receive sufficient information on a continuous basis.



11. If in your jurisdiction the managers have to be licensed, what are the 

conditions for obtaining the license: a few items might be: 

a. Fit and proper character of the managers 

b. Rules on conflict of interest 

c. Rules on risk management: these have been considered too weak 

d. Internal rules on valuation: contractual rules or IFRS? 

e. Internal rules on compliance 

f. Internal rules on asset segregation, on due diligence of investee 

g. Is there an internal and /or an external audit 

And are these conditions verified by an external body initially upon 

registration and from time to time? 

In our jurisdiction the SGR, manager of the funds, has to be licensed. The 

SGR must file the relevant application with the Bank of Italy which, after 

consulting CONSOB, issues the license where the following conditions are 

satisfied: 

a) the legal form adopted is that of a joint stock company (società per 

azioni); 

b) the registered office and the head office of the company are in Italy; 

c) the paid-up capital is not less than that established on a general basis by 

the Bank of Italy; 

d) the persons performing administrative, management and supervisory 

functions fulfil the professional, independence and integrity requirements; 

e) the owners of shareholdings fulfil the integrity requirements; 

f) the structure of the group of which the company is part is not 

prejudicial to the effective supervision of the company and at least the 

information required by the applicable law is provided; 

g) a programme of initial operations and a description of the 

organizational structure have been submitted together with the instrument of 

incorporation and the bylaws;



h) the name of the company contains the words ―società di gestione del 

risparmio‖. 

The authorization is denied where verification of the conditions indicated 

above shows that sound and prudent management is not ensured. 

These conditions are verified by the Bank of Italy upon registration and from 

time to time through the activity of supervision. 

Some of these issues are particularly important for PEF: valuation, conflicts of 

interest are well known problems. How does your legal system deal with 

these? 

The Italian legal system provides for specific rules in connection with 

conflicts of interest. Mainly, SGR are (i) subject to restrictions with other 

activities; (ii) subject to restrictions in the selection of the investments and (iii) 

required to appoint a depositary bank, with supervisory duties in their respect. 

Moreover, SGR are required to manage the conflicts of interest through the 

implementation of a proper policy for the purposes of avoiding (i) any further 

encumbrances or exclusions of UCITS from any due gains, and (ii) in any 

event, any prejudices deriving from such conflicts to both the managed 

UCITS and participants. If the organisational measures adopted (the 

aforementioned policy) are not sufficient to exclude such conflicts of interest, 

proper resolutions should be taken by the SGR, for the purpose of ensuring 

that participants as well as UCITS would receive an equivalent treatment. 

12. The recent crisis has indicated that HF may be exposed to substantial 

systemic risk, and hence that central banks, as systemic and prudential 

supervisors want to obtain data about their portfolios and their behaviour in 

the markets of at least the largest of these funds: 

h. Do HF and PEF usually inform these authorities about their 

portfolio, even if only some time ex post? 

According to the Supervisory and Statistical Reports, both PEF and HF are 

required to inform the Bank of Italy about the composition of their portfolio, 

on a six-monthly basis. 

The SGR submit to the Bank of Italy, with reference to each fund or sub-fund 

managed only: 

- within 60 days of the end of the semester, copy of the half-yearly 

report;



- within 90 days of the end of the year, copy of the balance sheets of the 

fund, together with the reports of the directors and the audit. 

i. Have these authorities access through their prime brokers? And 

can the information be aggregated? 

Please consider that the Italian rules require that the SGR may have a prime 

broker for each fund. The agreement between the SGR and the prime broker 

has to be delivered to the Bank of Italy. However, the appointment of a prime 

broker does not impact ton the functions and responsibilities of the custodian 

bank which is responsible for verifying compliance with the law and is liable 

vis-à-vis the fund manager and each unit-holder for any failure to fulfil its 

duties. Furthermore, the custodian bank has to monitor constantly the 

amount of the fund‘s assets and verify the collateral released in favour of the 

prime broker by the HF. 

j. Is apart from leverage, the built up of important positions in 

certain assets that could trigger significant price movement upon a certain 

liquidity need, a point of concern? 

If the question is to be intended as generically referring to acquisitions by PEF 

of positions into other companies, it should be noted that the current 

regulation already provides for duties of communications for SGR acquiring a 

significant position into companies. 

In particular, SGR are freely allowed to have shareholdings in companies 

exercising in the banking, financial and insurance sectors, as well as in 

companies with an instrumental nature, but not in companies operating in 

non-financial sectors, and are required to file with the Bank of Italy, at least 60 

days before the transaction, a request for the relevant authorisation, as well as 

a subsequent communication after the acquisition. 

This issue is considered a point of concern even at a European level. 

In fact, in their Proposal the European Commission and the Council 

suggested the provision of specific and detailed rules in this regard, 

introducing also duties of communication by the SGR to the other 

shareholders. 

k. Should these funds disclose their portfolios publicly? 

The disclosure of their portfolio would be a very opportune step in order to 

provide the investors and the authorities with the data necessary to evaluate 

their behaviour in the market. However, they are not currently required to 

publicly disclose their portfolio.



The only documents that SGR are required to put at the public‘s disposal are 

a balance-sheet and a six-monthly report on the management of the fund. 

13. What is the position on the remuneration of the HF managers: is there 

a public debate in your country and are there proposals to improve on this 

point? 

There is no public debate on the remuneration of the HF managers in Italy. 

14. PEF, and to a lesser extent, HF have been accused to destroy the 

companies they invest in: the so-called ―locust‖ phenomenon. Is this a public 

debate in your country and have the authorities dealt with it? What answers 

have been given, or what remedies could apply? (this could also be dealt with 

in part 2) 

There is no specific public debate in Italy on the ―locust‖ phenomenon which 

actually concerns the European debate. 

15. Market abuse by HF is often mentioned: are there cases that have been 

reported in your country? Were these specific to HF activity, e.g. related to the 

volume of their business in a given market? Is there a policy dealing with 

rumours? 

Market abuse by HF is discussed also in Italy even if I am not aware of cases 

of market abuse in my country. 

16. Clauses about the withdrawal from HF or PEF: how are these 

structured? How did they work in the downward markets? Have investors 

complained about unjust treatment on exit? What techniques have been used 

to postpone the exercise of exit rights? 

As far as the structure of the withdrawal is concerned, the redemption of fund 

units shall be effected on or before the expiry date set out for the relevant 

fund, according to the indications of the relevant regulation of fund. 

Broadly speaking, the regulations of funds usually provide that the right of 

withdrawal may be exercised (i) in relation to off-site contracts, within 7 days 

from the day of the investor‘s subscription and, (ii) if the fund has to be 

reduced due to the total subscriptions being less than the envisaged amount, 

within usually 10 or 15 days after the relevant communication of the SGR to 

the investors, and by means of return registered mail. 

There is no news on complaints about unjust treatment upon exit. Anyway, it 

should be noted that, irrespective of the withdrawal, other ways of exiting 

funds are available for investors.



In particular: (i) on the one hand we have been assisting, both at a national 

and international level, the significant development of specialized operators 

(being, almost always, funds as well) acquiring fund units, for a negotiated 

price, from investors interested in early disinvestments, and acting in a 

secondary market; (ii) on the other hand, a way of exit is even more ensured in 

respect of listed funds negotiated in a regulated market, which have therefore 

a daily determined unit price. 

Finally, it is worth mentioning that investors may also turn to specific 

structured products, created for the purpose of providing them with liquidity. 

In light of the foregoing, it would appear that the early exercise of exit rights 

has been raised more concerns that its late exercise, with regard to which, I 

have no knowledge of any techniques used. 

Part II: the social role of the Hedge funds, Private Equity Funds 

2.1 What has been the role of PEF in your country: there are widely 

divergent opinions, the PEF stating themselves that they mainly offer 

management services, with an equity investment to maximise their returns. 

On the other hand, HF and PEF have been accused of destroying firms 

through excessive leverage and appropriation of financial substance. What is 

the prevailing opinion on this subject in your jurisdiction? 

They also have been accused of destroying employment 2 : what is the 

prevailing opinion in your country. 

Have measures been taken to curb these negative consequences, e.g. 

regulating closures of plants, or massive lay-offs? What is their effectiveness? 

Have these aspects been litigated in court? 

Although there is an opinion in Italy which deems this phenomenon negative 

for the market, we are not aware of specific cases of employment or firms 

destroyed through the excessive leverage and appropriation of financial 

substance by HF in our jurisdiction. The Italian Government has not adopted 

any measure in order to curb these negative consequences. 

2 From European Venture capital Association: 

Investments by European private equity and venture capital firms amounted to €73.8bn in 2007, and 

approximately 5,200 European companies received private equity investments. About 85% of these 

companies have fewer than 500 employees. Studies show that between 2000 and 2004 European private 

equity and venture capital financed companies created 1 million new jobs, which translates to a compound 

annual growth rate of 5.4% per year (eight times the EU25 total employment rate of 0.7%). Between 1997 

and 2004, the average employment growth in buyout-financed companies was 2.4%, compared to 30.5% for 

venture-backed companies.



Is there any government‘s measure that has been taken, or is envisaged on 

these topics? Is there voluntary restraint by the PEF themselves? What kind 

of measures have they taken: Reducing leverage, duration of investment, etc. 

With respect to the issues above, both positive and negative considerations 

can be reported. In light of some recent surveys on the development of 

Private Equity in Italy, carried out by AIFI association, it emerges that, in our 

country, a culture supporting funds‘ activities and participation in Italian 

enterprises is now spreading. In fact, according to the data at our disposal 

(published on AIFI website), investments made during the year 2008 by PEF 

in Italian enterprises increased by 30 % compared to the previous year 

(although it should be noted that, as a consequence of the financial crisis, the 

resources raised by PEF in 2008 for investments to be made in 2009 

substantially reduced, compared to those raised in 2007 for investments 

related to the year 2008). 

Broadly speaking, it demonstrates that the Italian sector of enterprises 

(traditionally represented by the so-called ―PMI‖ which are small/middlesized 

enterprises, on a family basis) has now an increasingly positive opinion 

on the intervention of PEF in the enterprises. 

In particular, according to a survey carried out by AIFI and published in a 

paper on the Bank of Italy website, Italian enterprises turning to PEF, are 

quite satisfied with the contributions received by these funds (these 

contributions concern above all financial aspects, the definition of strategies, 

and management of human resources, rather then technical improvements 

related to the products). 

With reference to the issue of employment, instead, pursuant to the AIFI 

survey mentioned above, the occupational level has been enhanced, following 

the intervention of PEF. It should be noted, however, that the highest data 

refers to young enterprises with strong potential for growth. 

Additionally, it is worth noting that there is lively debate on the performance 

of the enterprises participated by PEF and the relevant positive or negative 

influences in our country and all over the world. 

Notwithstanding the positive observation above, with particular reference to 

the locust phenomenon, it is arguable that such an issue is also a point of 

concern in our country. 

In the last few years, in fact, investments made by funds, aimed at maximising 

returns without any scruples by the strong recourse to the leverage by-out, 

have been increasing, especially involving large Italian enterprises. The 

financial crisis has been demonstrating the failure of the leverage and has led



to the impossibility for certain enterprises controlled by PEF to pay their 

debts. Enterprises feel therefore that they have been set aside by funds. 

It should be noted, however, that these investments have been carried out 

above all by foreign funds. Moreover, since the typical Italian enterprise is 

small- to medium-sized, it is arguable that the phenomenon under discussion 

is not a central point of concern in the Italian debate. 

This phenomenon developed all over the world, and is now under the 

attention of the European Commission, which has drafted the 

aforementioned Proposal for a directive which is very much aimed at 

preventing, for the future, any reoccurrence of the negative consequences for 

the economy subsequent to the crisis. 

2.3 HF and to a more exceptionally PEF have been known for their activist 

stand as shareholders, although they are by no means the only ones. Usually 

they put the board under pressure so that it would adapt its policies to their 

views. 

How should board react to these attempts? What are the limits for boards to 

enter into contact with these activist shareholders? 

From a regulatory perspective there are no rules in Italy regarding the way of 

reaction or the limits to the board in respect of the attempts made by the 

activist shareholders. 

I may confirm that, even with respect to Italy, when the activities of PEF are 

aimed at expanding the enterprise, ―the entrepreneur‖ is usually reluctant to 

have any interference by the fund, which is often considered useless because it 

does not have a in-depth knowledge and experience of the activities carried 

out by the enterprise. 

In fact, pursuant to the available data (from AIFI) the entrepreneur is usually 

afraid to lose the majority of its firm, and therefore refuses any requests of 

PEF in this direction. On the other hand, PEF do not usually ask for the 

majority. Nevertheless, PEF are activist shareholders. 

From the material and surveys available, it emerges that PEF and the manager 

of the enterprise usually set off their interests by entering into a shareholder‘s 

agreement before starting any cooperation in the management of the invested 

company. Sometimes, instead, they prefer to directly modify the company‘s 

by-laws (see answer to question 2.4 below). 

As a consequence, any tools at disposal of each party is agreed previously.



2.4 What are the techniques used to pursue their position even owning 

only a minor block of shares? 

Proxy voting 

Voting agreements 

Alliances with institutional investors 

Short sales as an activist instrument 

Media alerts 

All the techniques listed above could be used by the activist shareholders in 

the case in which they hold just a minor block of shares. 

Normally, PEF own a minor block of shares and the most common technique 

used to pursue their position is entering into a shareholder‘s agreement, or 

amending, either directly or through such a shareholder‘s agreement, the bylaws 

of the invested company. 

With reference to the aforementioned shareholder‘s agreement, although its 

content depends on the transaction, it should be noted that there are some 

provisions which are typical. 

These are usually aimed, inter alia, at (i) ensuring the maintenance of the same 

management (representing a very important element for PEF in the evaluation 

of the convenience of the investment), (ii) providing for the case of selling of 

the majority to third parties, (iii) providing for a pre-emption right in favour 

of PEF in case of selling of the minority; (iv) granting PEF a proper 

representation on the boards of the enterprise; (v) providing for amendments 

to the company by-laws in connection to the percentage required to the 

general meeting in relation to certain significant resolutions, (vi) providing for 

acceptance clauses in favour of PEF with respect to the appointment of the 

main people managing the enterprise, (vii) providing for a non-competition 

clause for the entrepreneur; (viii) granting PEF the right of withdrawal in case 

of losses exceeding an agreed threshold, (ix) providing, in general, for easy 

ways out for investors. 

It should be noted, however, that the execution of a shareholders‘ agreement 

could be subject to restrictions under Italian law, such as the maximum 

duration of five years. 

Although it is definitely not easy to have knowledge of the specific 

information required in the question, it is reasonable to believe that the 

techniques listed therein (which are provided by the Italian Civil Code) are



available and also practised by Italian investors like funds and often regulated 

through the execution of a shareholder‘s agreement. 

Regardless the foregoing and the specific means used from time to time (a 

direct amendment of the company‘s by-laws or the execution of a 

shareholder‘s agreement), it is worth pointing out that PEF investing in 

enterprises seek, first of all, to be granted with a right of information, wider 

than that of any shareholder, and aimed at monitoring the management of 

invested companies and the compliance with the plan agreed. Often, a 

representation of the fund on the boards of the relevant invested enterprise 

turns out to be the most efficient means of achieving such objective. 

2.5 Can any of the following be used as techniques to exercise pressure by 

HF or PEF 

- Right to call the general meeting 

- Motion to dismiss the board of directors 

- Motion to split-up the company, or to merge it with another 

- Motion to close down certain parts of the business, or to sell it off to third 

parties (major disposals). 

Do these decisions belong to the competence of the general meeting or can 

the board of directors take them. 

Is the present threshold to call a general meeting widely accepted or are they 

criticised. 

Even in this case the techniques listed above could be used as techniques to 

exercise pressure by HF depending on the amount of the participation held by 

the HF in the company. Generally the adoption of these decisions is remitted 

to the general meeting. 

With reference to PEF, as mentioned in the answer to the previous question, 

funds and the other shareholders usually enter into a shareholder‘s agreement 

granting the investors specific powers. Pursuant to the Italian Civil Code the 

decisions mentioned in the question are mainly referred to the general 

meeting, while the call of the general meeting is generally required to a 

resolution of the Board of Directors, even following a specific request from 

shareholders representing at least 10% of the share capital or the minor 

percentage provided by the relevant company by-laws. 

Moreover, as mentioned above, the company by-laws may be amended 

through such shareholder‘s agreement, and the percentages required for the



resolution by the general meeting upon certain significant decisions of the 

company (such as the ones concerning extraordinary transactions of split-up, 

merger or close down of businesses may be) may be modified, so allowing 

investors owning a minor block to exercise a relevant influence. 

One of the most important instruments used by PEF to exercise pressure is 

the veto power, usually granted in relation to certain specific and significant 

issues for the enterprise. Also the veto power could be provided through 

shareholder‘s agreements. It is used, above all, in the transactions at an early 

stage, where the risk connected to the investment is higher for PEF and the 

fund needs to exercise a significant influence in the relevant enterprise‘s 

decisions. 

2.6 Are HF known for gaining support to their ideas? 

- By using the media: are measures against equity manipulation effectively put 

in action? Should public announcements about forthcoming action not be 

subject to the same rules as for board announcements see: reg FD) 

-Should there not be more transparency about the identity of the owners of 

voting rights in general? And about the shareholders in activist funds (concert 

action) 

- Companies generally do not know the names of their shareholders due to 

the indirect ownership structures; what measures should be taken to ensure 

that boards have the names of their shareholders, and engage in a debate with 

them. What is being done about it? 

- Important shareholders hide their ownership by the use of derivatives or 

complex financial constructions; by entering into equity swaps, contracts for 

difference and similar transactions 

- By creating secret alliances with other shareholders, or by hiding their own 

voting position: what are the techniques usually followed? . 

P.M. is there a debate in your jurisdiction about ―empty voting‖ and how do 

you think this can be solved. 

The use of media by HF widely represents a way to support their ideas. In 

Italy, for instance, recently a national newspaper reported the reprimand 

moved by Algebris, a HF which holds a participation equal to 0.3 % of 

Assicurazioni Generali (―AG‖), one of the greatest Insurance Italian 

companies, to the board of AG highlighting the negative corporate 

governance and management inducement rendered by the board but the



chance for Algebris to increase the amount of its participation in the 

insurance company. 

As for the transparency about the identity of the owners of voting rights, 

usually the Funds do not know individually the shareholders. In this regard we 

are not aware of particular measures to be taken by the board. 

Both the secret alliances with other shareholders and the hiding of the voting 

position represent techniques that should be followed. 

We are not aware of any debate in our jurisdiction about ―empty voting‖. 

2.7 What defences can boards use to resist pressure from activist 

shareholders? 

Is there a board neutrality rule, or only in Takeover bids? 

Some advise to engage with the activists: defensive action is a last resort: Can 

boards communicate with activist shareholders, or should they abstain on the 

basis of equal treatment? 

No information is available on the matter indicated above. 

2.8 Some actions by minority shareholders are close to greenmail: does this 

happen in your country, what is the attitude of the courts and what can be 

done about it? What is the liability of directors in giving in to greenmail? 

Disclosure? 

Italian case law does not provide for any judgement with reference to the 

―greenmail practice‖ or to practice carried out by the minority shareholders 

reflecting a nature close to the ―greenmail practice‖ yet. In this respect please 

consider that the HF phenomenon, and of course the problems arising from 

it, is still developing in Italy and that the minimum subscription amount must 

not be less than €500,000 for each shareholder who decides to enter into an 

Italian HF. 

From a general point of view, the liability of directors in giving in to greenmail 

should be inserted in the general liability of the directors toward the company. 

2.9 Does your legal system recognise an obligation of the shareholders to 

act in the interest of the company, or to can he act in his own selfish interest? 

There are no legal provisions expressly providing for an obligation for SGR to 

act in the interest of the company. In fact, SGR are only required (i) to adopt 

measures to protect the rights of the unit-holders and have sufficient 

resources and suitable procedures for the efficient provision of services and



(ii) exercise, in the interests of the unit-holders, the voting rights attached to 

the financial instruments. 

Does a shareholder have to act taking into account the respect for the interest 

of other fellow shareholders (fiduciary duty of the control shareholder)? 

According to the current regulation it seems that, apart from the general rules 

of correctness required from SGR and its members in the exercise of the 

relevant activities, SGR are not expressly required to take any particular 

cautionary measures in respect of other fellow shareholders. 

Part 3 the sovereign wealth funds 

The notion of SWF is somewhat ambiguous: the aspect discussed here refers 

to the fact that foreign entities are owned by a foreign state and/or act on the 

orders of a foreign state. Some of these may be specific funds, funded out of 

excess foreign exchange reserves; other may be longstanding companies with 

a ―public mission‖. 

The potential detrimental policy influence has been at the centre of the 

debate, although the sheer size of their portfolio‘s and the lack of 

transparency may also be mentioned as points of concern. In case of 

difficulty, position may be imposed outside the boundaries of company law, 

but by e.g. the rules protecting direct foreign investment. 

The Subject has now found a new equilibrium due to the financial crisis. The 

Santiago rules have also contributed to calming the debate. 

Does your country regulate the activity of SWF and in which way? 

No specific provisions have been issued in Italy with specific reference to 

WSFs so far. 

Nevertheless, a first attempt to endorse the Santiago rules has been registered 

in 2008: in fact, according to Italian Law n. 133 of 6 August 2008 an 

Interministerial Strategic Committee has been established with functions of 

advising the government and devising policies on foreign investments and 

SWFs, mainly in order ―to promote useful investments and prevent dangerous 

ones‖ (the committee‘s name is ―Comitato Strategico per lo Sviluppo e la 

Tutela all‘Estero degli Interessi Nazionali in Economia‖, literally ―Strategic 

Committee for Development and Protection Abroad of Economic National 

Interests‖). 

The Ministry of Foreign Affairs will issue specific provisions relating to 

participation in the committee and other operative matters. The Committee‘s



purpose is to collect information from SWFs willing to invest (or already 

investing) in Italy in order to evaluate the transparency and reliability of their 

investment policy. The Committee will therefore report to the government 

(and companies) such evaluations, which are not binding. 

There is still no web site on which it is possible to collect information about 

the activity currently carried out by the Committee, and no specific reference 

is made to such Committee in official legislative acts. Moreover, the decree 

which was supposed to provide rules on its activity has not been issued yet. 

It is worth noting that Italian Law n. 133 of 6 August 2008 envisages also the 

possibility to constitute in Italy investment funds with both private and public 

assets investing in innovative economic activities and, for such purpose, 

delegates the Ministry of Economic Affairs to grant the public company Cassa 

depositi e prestiti S.p.A. with the power to create a fund allowed to invest in 

certain predetermined funds. 

Are there figures available about the inflow of capital coming from 

SWF? 

No official figures about the inflow of capital coming from SWF have been 

published by either the competent authorities or the Strategic Committee for 

Development and Protection Abroad of Economic National Interests. 

Some unofficial information about the of SWFs currently holding shares in 

Italian listed companies at the end of 2008 may be available consulting 

national and international newspapers 3 and can be summarised as follows: 

(i) Libyan investment authority holds a $500 million joint fund with 

Mediobanca, 4.9% of Unicredit, 1% of Eni, 45% of Tamoil Italia and 14,79% 

of Retelit. It recently closed a joint venture agreement with Sirti and is 

investigating the possibility to purchase shareholdings in Impregilo and Terna. 

(ii) Mubadala, a fund of United Arab Emirates, holds 5% of Ferrari and 

35% of Piaggio Aero Industries. 

(iii) Kuwait Investment Authority holds 100% of Gulf and Mobil Oil 

distribution network and 50% of an oil refinery in Milazzo. 

(iv) Singapore‘s fund Temasek holds 100% of Sinport, trough which 

indirectly controls 100% of Voltri Terminal Europa (VTE) in Genoa‘s 

3 The sources to which reference is made are: www.mariosechi.net/2009/05/05/italia-a-caccia-del-tesoro-deifondi-sovrani 

; http://blog.panorama.it/economia/2008/10/26/fondi-sovrani-ecco-la-lista-dei-buoni/ ; 

http://209.85.229.132/search?q=cache:2DfvvNs_W_UJ:www.forexpros.com/news/financial-news/factboxlibyan-investments-in-italy-62226+libyan+investment+authority+telecom&cd=3&hl=it&ct=clnk.



Harbour, 100% of Venezia Container Terminal (VeCon), 55% of Voltri 

Terminal 2 and 10% of Rome Container Terminal. 

(v) Singapore‘s fund GIC purchased the commercial centre Roma Est and 

paid Euro 850 million for shareholdings in Sintonia, a company that holds 

shares in Gemina, Telco, Atlantia and Aeroporti di Roma. 

Can you briefly describe some cases in which access to SWF have been 

refused, indicating the grounds on which this refusal was based. 

No information is available on this matter so far. 

Have you in your legal order introduced procedures – possibly generally 

applicable – that are applied to SWF and ensure openness of their activity. 

In Italy no specific provisions have been issued with exclusive reference to 

WSFs, but as SWFs can be classified as non-harmonized collective investment 

undertakings (and, in the majority of cases, they are incorporated under the 

laws of a non-EU country) they shall comply with all requirements and 

disclosure obligations, in relation to the specific investment activity they are 

willing to carry out, set forth in relation to (foreign, as the case may be) nonharmonized 

collective investment undertakings, for example: 

� In relation to public offerings, article 42 TUF provides that nonharmonized 

investment funds willing to sell in the Italian market their units 

shall be authorized by the Bank of Italy, after consulting Consob, provided 

the operating arrangements are compatible with those prescribed for Italian 

undertakings. As a consequence their activity will be subject to the competent 

authorities‘ supervision. 

� The new Italian Regulation (implementing Italian Legislative 

Decree No. 58 of 24 February 1998) on issuers (the ―Regulation on 

Issuers‖), recently amended by resolution no. 16893 of 14 May 2009, set out 

some integrated provisions on foreign non-harmonized collective investment 

undertakings, which are willing to operate in Italy provided that they comply 

with several disclosure and transparency obligations. These provisions relate 

to disclosure with respect to offering prospectuses and their publication. 

� With reference to direct investments carried out by SWFs, the 

Bank of Italy‘s ―Supervisory regulations on asset management companies and 

collective investment undertakings‖ of 14 April 2005 sets out, in relation to 

risks‘ concentration, certain limitations to the entity of the investments carried 

out in listed companies, bank‘s deposits and investment funds. (For example, 

a non-harmonized investment fund, as a general rule, shall not invest more 

than 5% of its assets in securities issued by each listed company; it being



intended that there are some exemptions to the rule depending on the type of 

securities and on the target company). 

� In relation to purchase offerings, the Articles 35 and followings 

of the Regulation on Issuers set forth the applicable procedures to carry out a 

public tender to purchase shares of listed companies, including a mandatory 

bid in the event the offeror already holds more than 30% of such company. 

Have SWF published their policy objectives, whether in general or upon a 

specific investment. Do they publish their voting polices, and the way these 

are implemented 

No official release on this point has been disclosed or is available on the 

websites of the relevant Italian Authorities. In some cases, SWFs disclose on 

their websites certain brief information about shareholding in target 

companies and the economic fields of interest for the purpose of their 

investments (see, for example, the website www.mubadala.ae ). 

Do SWF usually delegate a member to the board? Are there special rules 

applicable to that member e.g. with respect to secrecy? 

No information is available on this respect on the basis of the information 

collected in the relevant web sites. 

Should investee companies include a passage in their annual reports about the 

presence of a SWF and its action within the investee company? Or on the 

way the SWF has voted 

Regulation on Issuers sets forth the applicable rules for the various financial 

reports to be drafted by the board of directors in connection with the 

financial statements of the company. Such provisions do not make any 

references to the duty to disclose information about SWFs holding shares in 

such company and their role during the past fiscal year. 

It is worth noting that the disclosure of voting polices and exercise of voting 

rights is not mandatory under Italian law. The only disclosure requirements in 

this respect relate to the duty of the company to inform shareholders on how 

they can exercise their voting rights and to the duty to insert in the 

shareholders‘ minutes passages about the participation to the meeting in force 

of a proxy and the presence at the meeting of shareholders holding more than 

2% of the company‘s share capital (articles 84 and 85 of the Regulation on 

Issuers). 

Have there been mechanisms introduced reviewing, or surveilling the activity 

deployed by SWF in investee companies?



No specific provision has been set forth so far under Italian law in this 

respect. 

The role of SWFs in investee companies shall be subject to the ordinary 

supervision activity carried out by the relevant national authority - CONSOB - 

according to the regulations and provisions applicable to any collective 

investment undertakings. 

Since 2008 the only specific monitoring activity is that to carried out by the 

Interministerial Strategic Committee which was established in 2008, which is 

aimed at supervising the activity of SWFs in order to provide the Italian 

government and companies with reports and non binding advice on the 

investment strategies and the role of SWFs in the Italian market. 

Bibliography 

Hedge Fund consultation paper EU Commission Febr 09 

http://ec.europa.eu/internal_market/consultations/docs/hedgefunds/consul 

tation_paper_en.pdf 

Prada,M. Discours, 

http://www.amf-france.org/documents/general/7603_1.pdf 

Proposed Elements of International Regulatory Standards on Funds of Hedge 

Funds Related Issues Based on Best Market Practices; 

http://www.iosco.org/library/pubdocs/pdf/IOSCOPD281.pdf 

UK: Hector Sants‘ speech: 

http://www.fsa.gov.uk/pages/Library/Communication/Speeches/2008/102 

2_hs.shtml 

Forthcoming regulation in the EU and in the US(March—April 2009) 

On SW : http://www.iwg-swf.org/pubs/gapplist.htm: Santiago principles 

On HF: http://www.hfsb.org/: HF standards board

COMMERCIAL LAW 

“INSURANCE LAW BETWEEN BUSINESS LAW AND CONSUMER 

LAW” 

GENERAL EDITOR: PROF. ONOFRIO TROIANO 

CONTRIBUTORS: 

PROF. DIANA CERINI (Università Milano Bicocca – Facoltà di Giurisprudenza): 

§§ III, VI.2, VI.3 

PROF. GIOVANNI COMANDÉ (Scuola Superiore Sant’Anna – Pisa): § IV 

DOTT. MARIA GAGLIARDI (Scuola Superiore Sant’Anna – Pisa): § VI.1 

PROF. ONOFRIO TROIANO (Università degli Studi di Foggia – Facoltà di 

Giurisprudenza): §§ I, II, V

QUESTIONNAIRE 

I. ECONOMIC ASPECTS 



1. What is the economic importance of consumer insurance as compared to business insurance in 

your country (e.g. France) and region (e.g. Europe)? 

If possible, please 

- state the overall amount of premiums earned by insurers in the respective fields 

- specify your data for general commercial insurance and marine insurance separately 

- specify your data for private indemnity insurance and life assurance separately 

- indicate the development (increase/decrease of premiums) over time 

According to the most recent data (2007) - see the enclosed Table 1 of the ANIA 

(acronym of the Associazione Nazionale fra le Imprese Assicuratrici – National 

Association of the Insurance Companies) - the Italian insurance market shows a 

prevalence of premiums in the retail insurance (total amount for the year 2007: € 

85.840.706.000,00) as compared to the business insurance (total amount for the 

year 2007: € 13.275.249.000,00). 1 

This prevalence exists both in non-life insurance - where retail insurance has a 

share of premiums of 78,3%, for a value of € 29.500.549.000,00 and business 

insurance has a share of 21,7% for a value of € 8.175.759.000,00 2 - and in life 

insurance (retail insurance 91,7% for a value of € 56.340.157.000,00; business 

insurance 8,3%, for a value of € 5.099.490.000,00). 

1 In this Table „Retail insurance“ regards only private consumers and families: for this reason we can assume that it 

encompasses the entire spectrum of the consumer insurance. 

2 The percentage varies if we do not consider motor vehicle insurance: retail insurance 54,8% (€ 8.867.265.000,26); 

business insurance 45,2% (€7.313.875.000,73).

Onofrio Troiano (General Editor) 

Commercial Law. “Insurance Law between Business Law and Consumer Law” 

Insurance 

field 

TABLE 1 

ANIA - ASSOCIAZIONE NAZIONALE IMPRESE ASSICURATRICI 

TOTAL of 

the 

premiums 

(in 

thousand 

euro) 

Non-life and life premiums 

2007 2006 

PERCENTAGE 

of the 

business' 

premiums 

PERCENTAGE 

of the retail 

premiums 

TOTAL of 

the 

premiums 

(in 

thousand 

euro) 

PERCENTAGE 

of the 

business' 

premiums 

PERCENTAGE 

of the retail 

premiums 

1 2 3 4 5 6 7 

Accidents 

and disease 

5.239.985 21,10% 78,90% 4.930.993 21,50% 78,50% 

Terrestrial 

vehicle 

3.287.279 7,40% 92,60% 3.205.159 8,20% 91,80% 

Trasport 703.545 95,70% 4,30% 745.597 96,20% 3,80% 

Fire and 

other natural 

elements 

2.345.063 50,50% 49,50% 2.359.217 50,60% 49,40% 

Other kind of 

damages to 

goods 

2.574.396 46,40% 53,60% 2.479.500 47,10% 52,90% 

Terrestrial 

vehicle third 

liability 

18.207.889 5,00% 95,00% 18.387.162 4,90% 95,10% 

General third 

liability 

insurance 

3.270.876 60,10% 39,90% 3.224.589 60,80% 39,20% 

Credit and 

Security 

821.525 88,70% 11,30% 759.182 88,80% 11,20% 

Pecuniary 

losses 

570.958 52,50% 47,50% 488.173 52,00% 48,00% 

Legal 

protection 

277.816 15,50% 84,50% 253.421 16,10% 83,90% 

Assistance 376.977 4,50% 95,50% 350.718 3,40% 96,60% 

TOTAL NON 

LIFE 

TOTAL 

WITHOUT 

MOTOR 

VEHICLE 

INSURANCE 

37.676.309 21,70% 78,30% 37.183.711 21,50% 78,50% 

16.181.141 45,20% 54,80% 15.591.390 45,90% 54,10% 

TOTAL LIFE 61.439.648 8,30% 91,70% 69.377.147 8,40% 91,60%



Unfortunately, we are not able to find specific data referred to marine insurance. 3 

Comparing these data with the data of the year 2006, it results a general trend 

towards an increase of the premiums in retail insurance and a (little) diminution in 

business insurance. Yet, the trend is opposite (increasing in business insurance and 

diminution in retail insurance) in the following particular fields: terrestrial vehicle 

third liability insurance; pecuniary loss insurance; assistance. 

More recent data (2008) are also available, which show the effect of the economic 

crisis, with a diminution of both non-life insurance premiums (3,5%) and life 

insurance premiums (10,9%). 4 

2. What are the expectations for further growth in each area of insurance? 

The economic crisis will play a role in the development of the insurance market in 

the year 2009. Data elaborated from the ANIA for the year 2009 provide evidence 

of a negative trend in the non-life insurance (-0,8%) but a positive trend in the life 

insurance (+ 10%) which had on the contrary shown a strong negative trend in the 

last years. 

This positive trend is mostly explained with the crisis of the financial market and 

the certainty that life insurance gives to investors regarding the integral 

reimbursement of the capital invested, plus some (little) economic gain. 5 

3 In Table 1 “Transport” includes all kind of transport, also by sea. 

4 See the document ANIA, L‟assicurazione italiana 2008/2009, 36. 

5 ANIA, L‟assicurazione …, 248-9.



II. ACADEMIC PERCEPTION OF THE FIELD 

1. Is insurance law taught and examined as a part of general private (contract) law or of 

commercial (contract) law? 

General Remarks. 

The Italian legislator has chosen to unify the civil code with the commercial code: 

the 1942 civil code consolidated both the 1865 civil code and the 1882 commercial 

code. 

The provisions related to insurance law (artt. 1882-1932 of the 1942 civil code) 

contain rules concerning almost exclusively insurance contracts, and are placed in 

the section which deals with the regulation of specific contracts, including both 

civil and commercial contracts. 

Marine, air and rail insurance (ruled in the codice della navigazione) as well as social 

insurance, regulated by specific statutes are not dealt with in the civil code; yet, its 

provisions also apply in those fields, unless specific rules are provided elsewhere 

(see artt. 1885 and 1886 of the 1942 civil code). 

Following the adoption of the code in 1942, many other laws in insurance matters 

were passed, but they were not included in the civil code (these laws are called 

„leggi speciali“, special laws, assuming that the general rule is the one set forth in 

the civil code) although they play sometimes an important role in the insurance 

field, as in the case of the law 24 dicembre 1969, n. 990 (and subsequent 

modifications) on the compulsory motor-vehicle third party liability insurance. 

In the last two decades of the last Century, insurance law has become more and 

more voluminous, mainly for the implementing laws of EC directives. Also the EC 

rules were enacted in „leggi speciali“ and not in the civil code.



In 2005, the Italian legislator decided to unify rules dealing with insurance matter 

and enacted a code of private insurances (codice delle assicurazioni private, or 

c.a.p.: d. lgs. 7 settembre 2005, n. 209 6 ), which has consolidated, with some new 

rules, all the laws (leggi speciali) on insurance, with few exceptions (e.g. maritime 

insurance, nuclear insurance). 7 

By and large, we can now assume that the civil code provides the general principles 

on insurance contracts and the code of private insurances contains more detailed 

rules on specific insurance contracts and the rules on insurance business. 

Chapter 11 of the code of private insurances contains the rules related to insurance 

contracts („norme relative ai contratti di assicurazione“) and states (art. 165 c.a.p.) 

that, as long as this code does not provide different rules, „insurance, coinsurance 

and reinsurance contracts are governed by the rules of the civil code“. 

The statement about the content of the civil code and of the code of private 

insurances is a very general one. 

There could be some disagreement on the above mentioned reading of the 

interplay between the civil code and the code of private insurances, as we can find 

in the civil code rules concerning specific insurance contracts (damage insurance, 

art. 1904 ff.; third party liability insurance, art. 1917; life insurance, art. 1919 ff.). In 

addition, in the code of private insurances we can also find general principles (as in 

the case of the rules concerning transparency in insurance contracts). 

On this problems see below this questionnaire, under IV.1. 

6 In Gazzetta Ufficiale 13 ottobre 2005, n. 239, modified by decreto legge 31 gennaio 2007, n. 7, converted in Act 2 

aprile 2007, n. 40, by decreto legislativo 6 novembre 2007, n. 198, and by decreto legislativo 29 febbraio 2008, n. 56, 

and by decreto legge 3 giugno 2008, n. 97. 

7 A.D. CANDIAN, Il nuovo codice delle assicurazioni e la disciplina civilistica del contratto di assicurazione: tendenze e „resistenze“, 

in Contratto e impresa 2006, 1289.



The perception of the insurance contract. 

The general remarks above support the idea that in Italy the question if the 

insurance contracts are perceived as a part of general private (contract) law or 

commercial contract law cannot have a clear answer. 

Generally speaking, insurance contract is the prototype of the „contratto aleatorio“ 

(aleatory contract): 8 for this reason many of the discourse about aleatory contracts 

are developed and focused on the basis of the insurance contract. But more and 

more, the insurance sector and insurance contracts are perceived as very peculiar 

and specialized fields of law, which are studied and taught at the University, under 

different courses. 

In the teaching of Private Law (Istituzioni di diritto privato) some references to the 

insurance contracts are made just to explain the particular legal regime of aleatory 

contracts. 

The Handbooks of Private Law (Manuali di Istituzioni di diritto privato) deal with 

insurance contracts, even if in Italy the study of specific contracts (which are in a 

very large number regulated in the civil code) is traditionally divided between the 

main course of Private Law (where civil contracts are also studied) and the main 

course of Commercial Law (where commercial contracts are also studied). 

For this reason, insurance contracts are taught more deeply in the general course of 

Commercial Law (and more deeply developed in the Handbooks of Commercial 

Law). 

But the main course of Commercial Law in the last decades has expanded more 

and more its content. Therefore there is not enough time to teach all the matters 

treated in the handbooks. This last change explain why Commercial Law 

professors are de facto requested to make a choice, and mainly they will prefer to 

devote more attention to matters (like company law) other than commercial 

8 The classification of a contract as aleatory means that, differently from other bilateral contracts, the performance 

of one party (the insurer party) depends on the fact that the insured risk takes place, or not. A legal relevance of this 

classification is the inapplicability of the hardship rules to aleatory contracts (art. 1469 c.c.).



contracts. More and more frequently a dedicated course is offered on Insurance 

Law (Diritto delle Assicurazioni). 

2. Are the leading textbooks/commentaries/etc. published by Professors of general private 

(contract) law or of commercial (contract) law? (Or by practitioners, and , if so, do they participate 

in university law courses.) 

The above depicted trend is reflected also in the leading books on insurance law 

and insurance contracts. These are mainly written by professors of commercial law 

(who also very often teach courses on Insurance Law). 9 

Recently, in line with a general trend, publishers of law books, mainly for reasons 

due to budget, support the publication of works, which do not represent thorough 

studies on the matter and are tought exclusively for the public of the practitioners, 

whose need is to have a first, possibly accurate, legal „nutshell“ on a particular 

topic or about the last changes occurred. Because of this trend, there is an 

increasing number of works written by practitioners, judges and law experts, that 

do not come from the universities (and sometimes try to access to Academia). 

For the largest part, these works do not have a scientific character, but they are 

useful for lawyers, who ask for simple and up-to-date (as concerns law, regulation, 

cases) publications in order to find a rapid solution to the problems of their clients. 

These works become sometimes leading textbooks or commentaries just because 

they sell much more copies than those written by university professors and despite 

their lack of systemic order. The success of these publications reveals a strong 

demand by the large public. Yet, these publications are also subject to rapid 

9 A.D. CANDIAN, S. PACI (eds.), Manuale di tecnica delle assicurazioni, Milano, Giuffré, 2 vols., 2002; A. DONATI, 

G. VOLPE PUTZOLU, Manuale di diritto delle assicurazioni, Milano, Giuffré, 2002; L. FARENGA, Diritto delle 

assicurazioni private, Torino, Giappichelli, 2001; M. GAGLIARDI, Il contratto di assicurazione, Torino, Giappichelli, 2009. 

A. LA TORRE (ed.), Le assicurazioni, Milano, Giuffré, 2000; A. SCARPA (ed.), L’ assicurazione, Torino, Giappichelli, 

2001.



obsolescence and do not play any role in the development of the law: they do not 

represent any doctrine. 

3. Are professorships in insurance law considered chairs in general private (contract) law or of 

commercial (contract) law? If neither, what is their position? 

Unlike in the past, the Italian university professor is no longer chaired, in the sense 

that, for example, if she or he teaches Transportation Law she or he cannot be sure 

to continue to teach that topic until retirement. 

Every Italian professor belongs to a scientific sector (settore scientifico- 

disciplinare) and shall have a course belonging to its scientific sector. 

Every academic year, the Consiglio di Corso di Laurea (a Committee made by the 

Faculty members who teach in the same curricular program - the Corso di Laurea - 

together with students representatives) chooses the courses which will be taught by 

any law professor: this choice is made on the basis of the needs of the Faculty with 

(some degree of) previous consultation with the interested professors. 

Again, unlike in the past, there are not more lists of courses belonging to a specific 

scientific sector, but only a general description of the issues studied by any 

scientific sector. If a course conforms to the characteristic of the scientific sector, 

the professor of that sector can teach that course. The absence of a restricted list 

of topics opens the door to the possibility that some courses belong to more than 

one scientific sector, especially if different sectors reveal some common aspects. 

For example “European Private Law” is nowadays taught in Italy by professors 

belonging to the scientific sector “Private Law” (settore IUS01 - Diritto Privato) 

and by professors belonging to the scientific sector “Comparative Private Law” 

(IUS02 – Diritto Privato Comparato). 

Historically, the course on Insurance Law (“Diritto delle Assicurazioni”) was 

traditionally part of the scientific sector Commercial Law (IUS04 – Diritto



Commerciale). Following the significant enlargement of the scientific sector 

“Commercial Law” during the last decades, a new scientific sector was created and 

named “Business Law” (IUS05 – Diritto dell‟ Economia). This happened 

according to a general national (Italian) trend towards the increase of the scientific 

sectors due to reasons not always related to sound scientific needs. 10 

As a consequence, some Commercial Law professors migrated in this new sector. 

The new sector “Business Law” has some common areas with the sector of 

Commercial Law, and the insurance sector is one of these. 

Very likely in few years the largest part of the teachers of Insurance Law courses 

will belong to the new sector “Business Law” (Diritto dell‟Economia) rather than 

to the traditional sector “Commercial Law”. 

III. PROCEDURAL ASPECTS 

1. Are cases concerning commercial insurances heard in special commercial courts? 

As an introduction to the question on procedural issues, one should point out that 

controversies between consumers and business clients, from one side, and 

insurance companies/intermediaries, on the other side, are increasing even in Italy. 

Until now, and not only in insurance matters, Italian law has not taken into proper 

consideration the issue of the distinguishing consumer litigation from commercial 

litigation. In fact, the distinction between commercial and non commercial (or 

consumer) insurance does not even exist in substantial matters if not for specific 

aspects provided for more recent legislations (i.e. unfair contract terms: see this 

questionnaire, above under § VI.1). We can consequently assume commercial 

insurance as merely opposed to insurance offered to consumers for specific 

10 Very recently the Italy Ministry of University and Research announced the project to reduce „drastically“ the 

scientific sectors (also in the field of law). The probable solution will be a small reduction from 21 to 16 scientific 

law sectors.



matters, while the greater distinction by law is between large risks and mass risks 

(see art. 1, lett. R of the code of private insurance). 

Nevertheless, as a matter of fact in many cases contract terms included in 

commercial polices provide for arbitration clauses so that a considerable part of the 

“commercial cases” are decided outside the courts. In addition, one should say that 

several modifications of the actual regulation for consumer insurance on these 

issues are under discussion. In this reform process an active part is taken by 

professional associations in order to improve alternative ways to solve claims 

(ADR), having in mind the need to reduce the costs of arbitration. 

Having clarified this point, one should note that cases concerning commercial 

insurances are not heard in special commercial courts. This is traditional in the 

Italian judicial system that does not provide generally for special courts unless in 

specific cases. Indeed, the traditional distinction is between administrative courts 

and civil courts; the latter divided into criminal and civil courts but there is no 

distinction between commercial courts and non commercial or consumer courts. 

2. Are there special procedures for consumer claims ? 

As there are no special courts for commercial insurance claims, equally there are no 

special state courts for consumer cases. Nevertheless, as anticipated, discussions 

and projects in order to enlarge the role of alternative dispute resolutions (ADR ) 

are more at the centre of the debate. 

One should also mention the role of ISVAP (Istituto di Vigilanza sulle 

Assicurazioni Private), the Italian Supervisory Authority for Private Insurance. One 

of the aim of ISVAP is to offer services to citizens. Among its activities, is to 

supervise transparency and fairness in insurance contracts. This activity spreads its 

effects both in a direct control over companies and in the collection of complaints 

by insured parties (see under point III. 4 herein). It should be highlighted the fact



that this role is performed with reference to both complaints by consumers and by 

businessmen, as the law refers to “insured” parties in broad terms. 

It is evident that this activity is not a judicial one in a technical sense, but it can 

have a role in the resolution of controversies arising between the parties or in order 

to postpone or reduce the claims actually going to court. In fact, even if it has no 

mediation role, when dealing with complaints ISVAP can play a strong “moral 

suasion” role towards the company in order to stimulate the insurers to find a 

solution to the claim. 

3. Is there a difference in commercial and consumer insurance litigation as to the availability of 

pre-emptive actions (injunctions) or class actions ? 

Pre-emptive actions. 

For what concerns pre-emptive actions, they are provided only for the protection 

of consumers‟ interests: art. 37 and 139 of the consumer code (d.lgs. 6 settembre 

2005, n. 206, so called codice del consumo). 

While art. 139 of the consumer code provides for a general injunction, art. 37 

provides for an injunction (azione inibitoria collettiva) prohibiting the use of unfair 

contract terms in consumer contracts. 

This last action can be exercised against the professional or associations who use or 

suggest the use of these general contract terms. The action can be filed by 

consumer associations, by associations representing the categories of professionals 

in question (in pur cases, for example, the association of insurers, the association of 

brokers, etc.) and by the Chambers of Commerce. 

The result of a positive action for injunction is the prohibition to use in all 

contracts on the market the clause declared unfair; the condemned party also has



the duty to publish the sentence in national media (art. 37, paragraph 3, consumer 

code). 

Lastly, it has to be pointed out that the European Parliament and the Council 

adopted the directive 2009/22/EC on injunction for the protection of consumers‟ 

interests. 

The explicit scope of the directive is to harmonize the different laws of the 

member States on the protection of the collective interests of the consumers in the 

internal market. In order to pursue this objective, the directive provides some basic 

rules on the subject and in particular on the action for an injunction, on entities 

qualified to bring action, on intra-community infringements. 

The directive shall enter into force on 29 December 2009: by that date we might 

expect correspondingly changes on art. 37 of the consumer code. 

Class actions 

The debate over the introduction of class actions in Italy is old enough to have 

recalled a lot of comments. Nevertheless, general class actions are not yet a reality 

in our legal system. 

Of course, consumer associations can assist the filing claims on behalf of a single 

or groups of consumers to obtain judicial orders against corporations that cause 

injury or damage to consumers. Indeed, these types of claims were increasing and 

Italian courts have recently allowed them against banks that continue to apply 

compound interest on retail clients‟ current account overdrafts. On these bases, the 

introduction of class actions was assumed on the new government‟s agenda. In 

2004, the Italian parliament considered the introduction of a collective action for 

damages (rather than a class action lawsuit), specifically in the area of consumers‟ 

law, but only at the end of 2007 the Senato della Repubblica with the financial law 

for 2008 (a financial document of the government for the economic management



of the national budget) introduced art. 140bis of the Italian consumers' code. 

Nevertheless, this rule has had a long and difficult life so far. In fact, it should have 

entered into force on 1 st January 2008 but its effectiveness has been postponed by 

the Government for three times: on 29 June 2008, on 1 st January 2009, on 29 June 

2009. 

Actually the rule is not yet in force, since the law has been once again emended and 

postponed. More precisely, only on July 2009 by way of art. 49 of law n. 99/2009, 

the Government seems to have emended another time art. 140bis (it has been 

completely rewritten 11 ) in order to introduce a class action (and not more a 

11 Actual text of art. 140 bis of the consumer code “Art. 140-bis. - (Azione di classe). - 1. I diritti individuali omogenei 

dei consumatori e degli utenti di cui al comma 2 sono tutelabili anche attraverso l'azione di classe, secondo le 

previsioni del presente articolo. A tal fine ciascun componente della classe, anche mediante associazioni cui dà 

mandato o comitati cui partecipa, può agire per l'accertamento della responsabilità e per la condanna al risarcimento 

del danno e alle restituzioni. 

2. L'azione tutela: 

a) i diritti contrattuali di una pluralità di consumatori e utenti che versano nei confronti di una stessa impresa in 

situazione identica, inclusi i diritti relativi a contratti stipulati ai sensi degli articoli 1341 e 1342 del codice civile; 

b) i diritti identici spettanti ai consumatori finali di un determinato prodotto nei confronti del relativo produttore, 

anche a prescindere da un diretto rapporto contrattuale; 

c) i diritti identici al ristoro del pregiudizio derivante agli stessi consumatori e utenti da pratiche commerciali scorrette 

o da comportamenti anticoncorrenziali. 

3. I consumatori e utenti che intendono avvalersi della tutela di cui al presente articolo aderiscono all'azione di classe, 

senza ministero di difensore. L'adesione comporta rinuncia a ogni azione restitutoria o risarcitoria individuale fondata 

sul medesimo titolo, salvo quanto previsto dal comma 15. L'atto di adesione, contenente, oltre all'elezione di 

domicilio, l'indicazione degli elementi costitutivi del diritto fatto valere con la relativa documentazione probatoria, è 

depositato in cancelleria, anche tramite l'attore, nel termine di cui al comma 9, lettera b). Gli effetti sulla prescrizione 

ai sensi degli articoli 2943 e 2945 del codice civile decorrono dalla notificazione della domanda e, per coloro che 

hanno aderito successivamente, dal deposito dell'atto di adesione. 

4. La domanda è proposta al tribunale ordinario avente sede nel capoluogo della regione in cui ha sede l'impresa, ma 

per la Valle d'Aosta è competente il tribunale di Torino, per il Trentino-Alto Adige e il Friuli-Venezia Giulia è 

competente il tribunale di Venezia, per le Marche, l'Umbria, l'Abruzzo e il Molise è competente il tribunale di Roma 

e per la Basilicata e la Calabria è competente il tribunale di Napoli. Il tribunale tratta la causa in composizione 

collegiale. 

5. La domanda si propone con atto di citazione notificato anche all'ufficio del pubblico ministero presso il tribunale 

adìto, il quale può intervenire limitatamente al giudizio di ammissibilità. 

6. All'esito della prima udienza il tribunale decide con ordinanza sull'ammissibilità della domanda, ma può sospendere 

il giudizio quando sui fatti rilevanti ai fini del decidere è in corso un'istruttoria davanti a un'autorità indipendente 

ovvero un giudizio davanti al giudice amministrativo. La domanda è dichiarata inammissibile quando è 

manifestamente infondata, quando sussiste un conflitto di interessi ovvero quando il giudice non ravvisa l'identità dei 

diritti individuali tutelabili ai sensi del comma 2, nonchè quando il proponente non appare in grado di curare 

adeguatamente l'interesse della classe. 

7. L'ordinanza che decide sulla ammissibilità è reclamabile davanti alla corte d'appello nel termine perentorio di trenta 

giorni dalla sua comunicazione o notificazione se anteriore. Sul reclamo la corte d'appello decide con ordinanza in 

camera di consiglio non oltre quaranta giorni dal deposito del ricorso. Il reclamo dell'ordinanza ammissiva non 

sospende il procedimento davanti al tribunale. 

8. Con l'ordinanza di inammissibilità, il giudice regola le spese, anche ai sensi dell'articolo 96 del codice di procedura 

civile, e ordina la più opportuna pubblicità a cura e spese del soccombente. 

9. Con l'ordinanza con cui ammette l'azione il tribunale fissa termini e modalità della più opportuna pubblicità, ai fini 

della tempestiva adesione degli appartenenti alla classe. L'esecuzione della pubblicità è condizione di procedibilità 

della domanda. Con la stessa ordinanza il tribunale:



collective action for damages) postponing its entry into force on the 1 st of January 

2010. 

The reasons of the delay of its entry into force are motivated, according to the 

consumer associations‟ opinion, by political issues: the continuous deferment of the 

rule allows the large companies affected by bankruptcy in the last years to avoid 

the risky consequences of any kind of class action. 

In fact, as mentioned, only with the last deferment the Government introduced 

some important changes. One of the most qualifying new carachteristic of the new 

Italian class action is that it can be filed either by consumer associations or 

committees and by individual consumers able to collect the interests of a class. 

a) definisce i caratteri dei diritti individuali oggetto del giudizio, specificando i criteri in base ai quali i soggetti che 

chiedono di aderire sono inclusi nella classe o devono ritenersi esclusi dall'azione; 

b) fissa un termine perentorio, non superiore a centoventi giorni dalla scadenza di quello per l'esecuzione della 

pubblicità, entro il quale gli atti di adesione, anche a mezzo dell'attore, sono depositati in cancelleria. Copia 

dell'ordinanza è trasmessa, a cura della cancelleria, al Ministero dello sviluppo economico che ne cura ulteriori forme 

di pubblicità, anche mediante la pubblicazione sul relativo sito internet. 

10. È escluso l'intervento di terzi ai sensi dell'articolo 105 del codice di procedura civile. 

11. Con l'ordinanza con cui ammette l'azione il tribunale determina altresì il corso della procedura assicurando, nel 

rispetto del contraddittorio, l'equa, efficace e sollecita gestione del processo. Con la stessa o con successiva 

ordinanza, modificabile o revocabile in ogni tempo, il tribunale prescrive le misure atte a evitare indebite ripetizioni o 

complicazioni nella presentazione di prove o argomenti; onera le parti della pubblicità ritenuta necessaria a tutela 

degli aderenti; regola nel modo che ritiene più opportuno l'istruzione probatoria e disciplina ogni altra questione di 

rito, omessa ogni formalità non essenziale al contraddittorio. 

12. Se accoglie la domanda, il tribunale pronuncia sentenza di condanna con cui liquida, ai sensi dell'articolo 1226 del 

codice civile, le somme definitive dovute a coloro che hanno aderito all'azione o stabilisce il criterio omogeneo di 

calcolo per la liquidazione di dette somme. In caso di accoglimento di un'azione di classe proposta nei confronti di 

gestori di servizi pubblici o di pubblica utilità, il tribunale tiene conto di quanto riconosciuto in favore degli utenti e 

dei consumatori danneggiati nelle relative carte dei servizi eventualmente emanate. La sentenza diviene esecutiva 

decorsi centottanta giorni dalla pubblicazione. I pagamenti delle somme dovute effettuati durante tale periodo sono 

esenti da ogni diritto e incremento, anche per gli accessori di legge maturati dopo la pubblicazione della sentenza. 

13. La corte d'appello, richiesta dei provvedimenti di cui all'articolo 283 del codice di procedura civile, tiene altresì 

conto dell'entità complessiva della somma gravante sul debitore, del numero dei creditori, nonchè delle connesse 

difficoltà di ripetizione in caso di accoglimento del gravame. La corte può comunque disporre che, fino al passaggio 

in giudicato della sentenza, la somma complessivamente dovuta dal debitore sia depositata e resti vincolata nelle 

forme ritenute più opportune. 

14. La sentenza che definisce il giudizio fa stato anche nei confronti degli aderenti. È fatta salva l'azione individuale 

dei soggetti che non aderiscono all'azione collettiva. Non sono proponibili ulteriori azioni di classe per i medesimi 

fatti e nei confronti della stessa impresa dopo la scadenza del termine per l'adesione assegnato dal giudice ai sensi del 

comma 9. Quelle proposte entro detto termine sono riunite d'ufficio se pendenti davanti allo stesso tribunale; 

altrimenti il giudice successivamente adìto ordina la cancellazione della causa dal ruolo, assegnando un termine 

perentorio non superiore a sessanta giorni per la riassunzione davanti al primo giudice. 

15. Le rinunce e le transazioni intervenute tra le parti non pregiudicano i diritti degli aderenti che non vi hanno 

espressamente consentito. Gli stessi diritti sono fatti salvi anche nei casi di estinzione del giudizio o di chiusura 

anticipata del processo». 

2. Le disposizioni dell'articolo 140-bis del codice del consumo, di cui al decreto legislativo 6 settembre 2005, n. 206, 

come sostituito dal comma 1 del presente articolo, si applicano agli illeciti compiuti successivamente alla data di 

entrata in vigore della presente legge.”



Among others, the scope of the class action might be to act against a company for 

contractual liability or against the producer for product liability. 

One important point solved by the new law deals with the retroactivity of it which 

is excluded. 12 

4. Is there a difference between commercial and consumer insurance concerning 

the activity of the supervisory agency in protecting the policyholder or the insured ? 

As anticipated, the Italian supervisory board for insurances is ISVAP. 

The role of ISVAP is defined by the code of private insurances, art. 3 ff. 

It has supervisory functions, sanctioning regulatory powers plus some additional 

services to citizens. More precisely, art. 3 provides that the purpose of supervision 

is the sound and prudent management of insurance and reinsurance undertakings 

and transparency and fairness in the behaviour of undertakings, intermediaries and 

the other insurance market participants with regard to stability, efficiency, 

competitiveness and the smooth operation of the insurance system, to the 

protection of policyholders and of those entitled to insurance benefits as well as to 

consumer information and protection. 

As one can understand, the position of ISVAP towards citizens - insured and 

contracting parties - is mainly referred to two aspects: the first one is to protect 

policyholders also by receiving complaints towards insurance companies and 

intermediaries, and the second is connected to the regulatory and supervisory 

powers in order to assure proper information to consumers. 

12 On the other hand, one should mention that the big issue left open is about the applicability of the law to the 

financial matter: as said before, the legislator regulated the class action as a discipline belonging to the consumer law; 

moreover, it never speaks about investors but always about consumers. In light of this kind of interpretation, the big 

financial scandals of the last few years might be partially out of the discipline.



As per this rule, it should be clarified that the law refers to citizens. This includes 

both policyholders and insurance parties or beneficiaries irrespective to the fact 

that they are consumers or businessmen. 

In particular, as for services to citizens, one should mention the fact that ISVAP is 

assigned the task of collecting complaints made by interested parties against 

undertaking and insurance intermediaries. The role of ISVAP is better clarified in 

the Regolamento 19 maggio 2008, n. 24, concernente la procedura di presentazione 

dei reclami all‟Isvap di cui all‟articolo 7 del decreto legislativo 7 settembre 2005, n. 

209. 

Once again, it should be clear that when dealing with supervisory powers and 

protection of policyholders, in many aspects the role of ISVAP does not differ 

towards insured and/or contracting parties whether or not they are consumer or 

business entities. I.e. as to the regulatory and supervisory powers, the Authority is 

in charge of assuring transparency in the relation between undertaking and 

policyholders, whereas this term (policyholder) generally refers both to consumer 

and non consumer client. In this role, most of the regulations provided by ISVAP 

tend to give the market provisions in the direction of assuring the right to 

information for policyholders and a better transparency in the language and terms 

of insurance policies. 

This clarified, the „law in action‟ shows that the role of ISVAP is much more 

penetrating when dealing for consumer contracts also when considering the 

mission set by art. 3 as completed by art. 5, paragraph 3, where the law states that 

ISVAP shall perform the activities necessary to promote an appropriate degree of 

consumer protection and to develop the knowledge of the insurance market, 

including statistical and economic surveys and the gathering of input for the 

formulation of insurance policy lines. 

This position has been used, in particular, in order to promote the information on 

web site (see for example www.isvap.it) where specific guidance for consumers are 

present. In other cases, the ISVAP prescriptions – e.g. on information duties in



insurance contracts – do not really distinguish between contracts offered to 

consumers or to businessmen, as the relevant difference is between large risks and 

other risks (that is the case, for example, for pre-contractual duties and delivery of 

documents duties imposed to insurance intermediaries which apply only to all non 

large risks). 

IV. LEGISLATION 

1. Is “insurance law” regulated in a separate codification, such as an “Insurance (Contract) Act”, 

or as a part of a general Civil Code or a general Commercial Code ? 

As anticipated, there is a separate codification but its role and its interplay with 

other legislation (including the civil code) requires several qualifications. 

The Italian legal system provides for a separate codification in a consolidation 

statute officially named “codice delle assicurazioni private” (c.a.p.). This 

restatement like process, stimulated by law n. 229 of 2003 which delegated the 

Government to reorganize insurance law, was mainly aiming at the simplification of 

the fragmented insurance rules and regulations, which have been stratifying along 

the years and following the merger of the commerce code into a unified Italian civil 

code in 1942. 13 

As every sector code, the c.a.p. is not a systemic code opening the way to the 

problems both of its coordination with rules provided for outside its perimeter 

(being them in the civil code or in special legislations) and its coordination with 

other sector code (e.g. the consumer code) to build a system which does not find 

anymore its sole centre in the civil code. 

13 On the insufficiency of the rules provided in the civil code for dealing with a modern insurance market and with 

the new exigencies contemplated by modern insurance techniques see A. BALZANO, Il contratto di assicurazione, in 

Tratt. dir. priv. europeo, N. LIPARI (edt.), vol. IV, Padova, 2003, 99-237 and 176-185. More recently for a complete 

reconstruction of the mosaic, see M. GAGLIARDI, Il contratto di assicurazione. Spunti di atipicità ed evoluzione del tipo, 

Torino, Giappichelli, 2009.



Most of the stratifications in insurance law were due to the constant EC legislation 

on the subject matter. Indeed, an important role in the design of insurance law has 

been played by the European legislator by way of different directives. For instance, 

most of the legal rules which, overtime, have designed paths of protection for the 

insured and\or administrative controls are of EU origin. 

Upon the unification of the commercial code and the civil code in the Italian civil 

code of 1942 14 , the entering into force of the 1948 Constitution and the continuous 

interventions of EC legislation it seems to some scholars 15 that the civil code has 

been losing some centrality. We will investigate further on this point 16 . 

As anticipated, the aim of consolidating insurance rules in the c.a.p. was the 

rationalization and simplification of the rules with the scope of increasing efficiency 

and competitiveness of the insurance market while strengthening the protection of 

the insured. 

Yet, as anticipated, the c.a.p. does not provide for all the norms related to insurance 

law despite this would have been its first scope 17 . For instance, and as we will see it 

is an important issue, it does not encompasses the rules related to insurance 

contracts which remain regulated by the Italian civil code (capo XX of Titolo III, 

Libro IV, artt. 1882-1932 civil code) 18 . The c.a.p. only offers a referral article (art. 

165) to the rules in the civil code. Art. 165 c.a.p. gives prevalence to the regulation 

14 For an historical synthesis see G. PORTALE, Il diritto commerciale italiano alle soglie del XXI secolo, in Riv. soc., 2008, 1; 

F. GALGANO, Storia del diritto commerciale, Bologna, 1976, 69ff.; G. COTTINO, Introduzione al trattato, in G. 

BONFANTE- G. COTTINO, L'imprenditore, in Trattato di diritto commerciale, diretto da G. COTTINO, I, Padova, 

2001, 343ff. Note that already in the 30s of last century Italian scholars were questioning the utility of maintaining 

separate a set of insurance rules dealing with the public aspects\interests and one dealing with contractual rules. See 

A. ASQUINI, Verso l'unificazione delle leggi sulle assicurazioni, in Assicurazioni 1934, I, 5 ff. 

15 See G. PORTALE, Il diritto commerciale italiano …, cited, 1. 

16 Yet on the fact that topography does not offer a final word on the creation of principles see G. OPPO, I contratti 

d'impresa tra codice civile e legislazione speciale, in Riv. dir. civ., 2004, I, 841ff. 

17 For all see A. D. CANDIAN, Il nuovo codice delle assicurazioni e la disciplina civilistica del contratto di assicurazione: tendenze e 

“resistenze”, in Contratto e Impr., 2006, 1289-1313. 

18 For a critique to the original intent to incorporate insurance contract rules in the c.a.p. see A. GAMBINO, Note 

critiche sulla bozza del codice delle assicurazioni private, in Giur. comm., 2004, 1035; G. VOLPE PUTZOLU, Capo I - 

Definizioni e classificazioni generali, in Il codice delle assicurazioni private (Commentario al d. lgs. 7 settembre 2005, n. 209), F. 

CAPRIGLIONE (edt.), I, 1, Padova, 2007, 12. Contra, A. D. CANDIAN, Il nuovo codice …, cited, 1306ff.



of the c.a.p. over the specific rules on insurance, coinsurance and reinsurance 

contracts in the civil code 19 and therefore a systemic role of special legislation. 

Moreover, the c.a.p. offers a wide span of powers to the controlling authority 

(ISVAP) to regulate the market 20 . Several of those regulations, though technically 

secondary legislation 21 , do have an impact also on insurance contract law rules 

contributing to add another layer to an already multilayer system of sources of law 

which do not have necessarily the c.a.p. at the top of it and in which the civil code 

is not anymore in a clear way the sole centre of reference not even for insurance 

contract. 

The Capo XII of the c.a.p. ("Norme relative ai contratti di assicurazione") 

contains several rules related to insurance contracts in addition to the mentioned 

specific article (165) which gives priority to the c.a.p. over specific insurance 

contract norms in the civil code. Those rules, among others, either deal with void 

insurance contracts, the destiny of contracts concluded with unauthorized 

companies or dictates regulations for the redaction of insurance policies. Capo II of 

the same title XII prescribes rules for the specific contract for accident liability and 

regulates some contracts (legal protection 173-174, assistance 175, life insurance 

176-178, contracts of “capitalizzazione” (capitalization) 179) 22 . 

This mentioned interplay between different sources of law is made more 

complicated by art. 178 c.a.p. which provides for an inversion of the burden of the 

proof in those contracts in which a life insurance claim is at stake. In fact, this 

19 It is important to note that the drafting commission for the c.a.p. originally proposed to move the prescriptions 

under the civil code to the c.a.p. The Consiglio di stato itself, in its consultative opinion of March 14 th , 2005, does 

not see any problem in moving the article in the civil code to the c.a.p. while advising to put (in the case of transfer 

from the civil code) a clause restating that insurance contract would remain still subject to the general principles 

which can be abstracted by the civil code as whole. Contra, on the potential shift from the civil code to the c.a.p. see 

A.D. CANDIAN, Il nuovo codice …, cited, 1289-1313, especially 1306ff. 

20 For a full list of those rules see G. MORBIDELLI, I regolamenti dell'ISVAP, in Il nuovo codice delle assicurazioni, S. 

AMOROSINO – L. DESIDERIO (edts), Milano, 2006, 38. 

21 P. CORRIAS, In tema di prodotti finanziari delle imprese di assicurazione e di trasparenza nel settore assicurativo alla luce dei 

regolamenti di attuazione dell’ISVAP, in Resp. civ. e prev., 2008, 997. 

22 Scholars are in doubt on the insurance nature of some of these contracts. For example, on the “contratto di 

capitalizzazione” see P. CORRIAS, Art. 179, in Il codice delle assicurazioni private (Commentario al d.lgs. 7 settembre 2005, n. 

209), F. CAPRIGLIONE edt., II, 2, Padova, 2007, 175ff. More generally P. CORRIAS, Garanzia pura e contratti di 

rischio, Milano, 2006, passim.



inversion must be coordinated both with insurance contract rules in the civil code 

and in the consumer code. 

In addition, there should be coordination between the c.a.p. and rules for welfare 

pension benefit contracts (“contratti di assicurazione previdenziali”) provided for 

by d.d. 5 dicembre 2005, n. 252, on the complementary pension system. 

Last but not least, there is an interplay provided for by the law between the rules on 

the protection of savings and insurance contract. 23 

In short, the rules for insurance law are contained in a multiplicity of sources 

which, in the end, makes more difficult the coordination among the several legal 

texts and to assess the legal risks 24 . 

The fact that actually there is a so called insurance code does not alter the 

traditional mechanisms of coordinating the legal rules and their interplay. For sure, 

it does make simple the search of the texts and flags some general points (e.g. a 

number of contracts permissible to insurance companies larger than the one 

encompassed by the civil code and a relational attitude to protect the weaker party). 

One more point should be made to complete our answer to the question: the issue 

of the coordination of insurance contract regulations. 

It is worth noticing that most insurance contracts - at national and international 

level - are so heavily drafted, trying to cover all possible occurrences, that the 

relevance of both special (insurance) and general contract rules fades away. 

Somehow, general principles of protection remain on the fore front 25 but disperse 

in different set of rules. Note also that, contrary to the ongoing mantra of 

deregulation, contract law in general, including insurance contracts, is facing an 

increase and diversification of regulation in which a significant part is played by 

23 See M. SIRI, Trasparenza delle obbligazioni e tutela dell'assicurato nel codice delle assicurazioni e nella legge sulla tutela del 

risparmio, in Il nuovo codice delle assicurazioni, a cura di S. AMOROSINO e L. DESIDERIO, Milano, 2006, 392ff. 

24 L. ROSSI CARLEO, Diritto Comunitario, “Legislazione speciale” e “Codici di settore”, in Riv. notariato, 2009, 11. 

25 See, referring in general to contracts drafted by Anglo-American law firms and in a common law context, S. 

PATTI, Parte generale del contratto e norme di settore nelle codificazioni, in Riv. trim dir. proc. civ., 2008, 735. But see for an 

emphasis on the role of the general part on contract also in relation to the setting of a general part on contracts 

among enterprises P. SIRENA (edt.), Il diritto europeo dei contratti d' impresa. Autonomia negoziale dei privati e regolazione del 

mercato, Milano, 2006, passim; A. FALZEA, Il diritto europeo dei contratti d'impresa, in Riv. dir. civ., 2005, I, 1ff.; E. 

NAVARRETTA, Buona fede oggettiva, contratti di impresa e diritto europeo, in Riv. dir. civ., 2005, I, 507 ff. On the general 

part of contract and its significance today see the contributions gathered by F. MACARIO - M.N. MILETTI (edts.), 

Tradizione civilistica e complessità del sistema. Valutazioni storiche e prospettive della parte generale del contratto, Milano, 2006.



regulating or supervising authorities 26 . The problem of coordination, then, moves 

beyond traditional hermeneutic criteria and requires more multifaceted tools for 

governing regulatory complexity also in this area 27 . 

The c.a.p. is the meeting point for insurance law originating in EC law, in special 

legislation (such as those dealing with traffic accident insurance) and in sector 

specific codifications. Yet, c.a.p. does not acquire a prevalent role with reference to 

insurance contract despite the general declarations of its parts devoted to contract 

(art. 165). 

In principle, the fact that there is a code for the sector, instead of just special 

legislation, paves the way to simplification and easier access to the legal rules. On 

the one hand, it offers a more complete and systemic knowledge basis. In this sense 

the c.a.p. is not a special legislation meaning it requires simplistically a general rule 

to deviate from. 

On the other hand, the traditional relationships between the civil code and special 

legislation are not overcome by the mere fact that there is a c.a.p. since it is not a 

self-sufficient regulation. Indeed, the convergence of the rules contained in the civil 

code, the c.a.p., the controlling authority regulations and other sector general rules 

(e.g. consumer code) build a system which needs more efforts in coordination for 

each actual case. 

2. To what degree does the codification of insurance law cover both, commercial and consumer 

insurance? 

Please specify 

- whether commercial and consumer insurance are both regulated in the same statute 

In the c.a.p. there is not such a distinction with reference to the insurance contract. 

The c.a.p. covers both commercial and consumer insurance. Yet consumers and 

26 See on these issues for a first information F. CAFAGGI, Il diritto dei contratti nei mercati regolati: ripensare il rapporto tra 

parte generale e parte speciale, in Riv. trim. dir. proc. civ., 2008, 95. 

27 For this trends and in general see U. BRECCIA, La parte generale fra disgregazione del sistema e prospettive di 

armonizzazione, in E. NAVARRETTA, Il diritto europeo dei contratti fra parte generale e norme di settore, Giuffré, 2007, 31 ss.



clients which are not consumers might enjoy different levels of protection due to 

the interplay of various layers of rules. 

For instance the individual will be taken into account as a contractual party (e.g. 

insurer, insured), as a consumer, as a special kind of consumer (e.g. the insured), as 

a special individual (e.g. third party beneficiary) and the single pieces of the 

normative puzzle will come into the picture under different orders of interpretative 

coordination techniques. 

We can use two metaphors to describe the interplay among the described set of 

rules. One is the image of concentric circles. The larger circle encompasses the civil 

code, a smaller circle included in the former encompasses the specific protective 

rules aggregated in the consumer code or other special legislations, an even smaller 

and specific circle aggregate the special rules for insurance operations and contract. 

Nevertheless, this metaphor would depict only the traditional relationships of strict 

interpretation and specialty among general, specific and special legislation and 

would even go against the fact that insurance operations and contracts refer to a 

larger group than the one embraced by the notion of consumer originating in EC 

law (as a physical person acting outside the scope of one‟s professional activity). 

- whether consumer law has priority over insurance law codification (lex specialis) 

No. Consumer law and insurance law codification must be read in a coordinated 

manner. The c.a.p. does not provide an area in which it deals with consumer law 

(but see above and below). 

In reality the interplay among the described rules looks more like a Kubrik‟s cube 

in which each part is in a multiplicity of relations with the other parts; relations 

which respond to traditional hierarchies and methods (e.g. traditional general- 

special, general-specific) but that can be operated according to the actual relational 

interplay among the pieces of regulation as well.



This way, for instance, the civil code provisions on contract cannot be interpreted 

without the principles emerging from the consumer code or from the protective 

relational attitude of the c.a.p. In short the different layers of regulation, stratified 

over time, are not anymore bi-dimensional but interoperate in a sort of tri- 

dimensional way 28 like in a Kubrik‟s cube. After all, the description of the 

contractual relationships (related to insurance products) which can be concluded by 

insurance companies and which emerges from the different rules contained in the 

c.a.p. is much wider than the definitions encompassed in articles 1882 and 

following of the civil code. We refer mainly to rules of general applicability or 

devoted to specific type of products (artt. 165-181, art. 182-187 on information 

transparency and clarity, art. 242, section 3, and art. 240, section 5, on the right of 

withdrawal in case of revocation of the authorization). 

The scheme provided by the c.a.p. ratifies the fact that insurance companies may 

conclude contracts which might lack one or more of the elements encompassed by 

the civil code definitions 29 and even just for this reason it assumes an important 

role in the normative puzzle we described and in the aim of equilibrating involved 

actors powers in this specific market. 

As anticipated, things are made more complicated to coordinate when secondary 

legislation (by ISVAP) is contemplated, especially under the form of so called 

“regolamenti” (regulations). This is the case of title XIII c.a.p. on transparency 30 . 

For life insurance contract, coordination must be made as well also with law 28 

dicembre 2005, n. 262 on the protection of savings and financial markets. 

28 On the interplay between the general part of contract law and specific nominated contracts see for an effective 

synthesis M. GORGONI, Regole generali e regole speciali nella disciplina del contratto, Torino, 2005, passim. See also G. 

DENOVA, I contratti atipici e i contratti disciplinati da leggi speciali: verso una riforma ?, in Atti del convegno per il cinquantenario 

della rivista, in Riv. dir. civ., 2006, 345ff; G. VETTORI, La disciplina generale del contratto nel tempo presente, in Riv. dir. priv., 

2004, 324ff.; E. LUCCHINI GUASTALLA, Sul rapporto tra parte generale e parte speciale della disciplina del contratto, Riv. 

trim. dir. proc. civ., 2004, 379ff., 821ff.; G. DENOVA, Sul rapporto tra disciplina generale dei contratti e disciplina dei singoli 

contratti, in Contr. e impr., 1988, 327ff.; P. VITUCCI, Parte generale e parte speciale nella disciplina dei contratti, in La civilistica 

italiana degli anni '50 ad oggi tra crisi dogmatica e riforme legislative, Padova, 1991, ivi, 441 ff. 

29 See M. GAGLIARDI, Il contratto di assicurazione. Spunti di atipicità ed evoluzione del tipo, Torino, Giappichelli, 2009, 261 

ff., and before M. BIN, Artt. 1 e 2, in Commentario al codice delle assicurazioni, M. BIN (edt.), Padova, 2006, 15; A. 

GAMBINO, Linee di frontiera tra operazioni di assicurazioni e bancarie e nuove forme tecniche dell'assicurazione mista sulla vita a 

premio unico, in Ass., 1993, I, 157ff. 

30 Scholars are today more prone to include rules for transparency among those aiming to protect the weaker party. 

See M.C. CHERUBINI, Tutela del contraente debole nella formazione del consenso, Torino, 2005; V. ROPPO, Il contratto del 

duemila², Torino, 2005, 52.



With reference to the consumer code, the c.a.p. does not provide for an explicit 

coordination. 

In the c.a.p. there are several provisions which in a sense govern the insurance 

contract from the “external” (beyond parties‟ will) integrating or superseding 

parties‟ will to protect the weaker party of the contract 31 . 

A tentative survey of these rules can be easily made. It shows they are mainly 

located in the parts dealing with controls. For instance, control aims also at 

maintaining consumer information and protection; 32 art. 119 provides for the 

principle of solidarity in dealing with insurers and intermediaries‟ liability in line 

with case law; art. 131 in providing for auto accident insurance names the 

consumer expressly as addressee of specific information to enable a fair and clear 

comparison; similarly and for the same insurance contract article 170 ban tying 

practices (including with bank and financial contracts). 

Several other articles in the c.a.p. are indicators of the spirit which pervades the 

c.a.p. itself: art. 174, on legal protection insurance; art. 177 on ius poenitendi; art 182, 

on clarity and transparency of information for all advertising regarding any 

insurance contract. Indeed, the latter provision in its subsection shows the deep 

interplay between the insurance code and the consumer code with reference to 

comparative advertising for instance. 

Art. 183 (on behavioural rules and information), art. 185 (compulsory information 

attachment), art. 186 (preventive inquiry on the information attachment), art. 187 

(integration of information attachment) offer other instances of the weaker party 

protection spirit we mentioned earlier drawing directly legal rules or empowering 

the controlling authority (ISVAP) to define the behavioural rules which, by way of 

31 It has been written that there are so many rules which moves along the lines mentioned in the text that the all text 

in its most innovative parts could appear inspired by this weaker part protection aim. See M. ROMA, Codice delle 

assicurazioni. Novità e prospettive in tema di tutela dell’assicurato-consumatore, in Dir. economia assicur., 2007, 107. 

32 See art. 3 c.a.p.: “(Finalità della vigilanza) La vigilanza ha per scopo la sana e prudente gestione delle imprese di 

assicurazione e di riassicurazione e la trasparenza e la correttezza dei comportamenti delle imprese, degli intermediari 

e degli altri operatori del settore assicurativo, avendo riguardo alla stabilità, all'efficienza, alla competitività ed al buon 

funzionamento del sistema assicurativo, alla tutela degli assicurati e degli altri aventi diritto a prestazioni assicurative, 

all'informazione ed alla protezione dei consumatori.”



an effective transparency, fulfill the protective scope of the weaker party while 

satisfying the need of a sustainable, fair and competitive insurance market. 

In a sense the c.a.p. has inherited those weaker party protection rules which were 

drafted after the EU directives n. 92/96/Ce and n. 92/94/Ce, enacted in Italy by 

legislative decrees 174 and 175 of 1995. 

The civil code and, today, the consumer code refer to the insured as a sort of 

regular contractual party to which, where it is the case, the specific rules of the 

c.a.p. also apply 33 . Once again, the risk is that the insurance rules might create a 

puzzle difficult to sort out. 

- whether and to what extent the insurance codification distinguishes between consumers and non- 

consumers. 

The insurance codification does not distinguish as such between consumers (as a 

physical persons acting outside the scope of ones professional activity) and non 

consumers. Yet, we must reflect on the potential distinction between client (notion 

introduced by the legislator as well) and consumer. An insurance client might be 

the addressee of the protective rules in the c.a.p. but not of those in the consumer 

protection legislation or, alternatively, the client might be the addressee of both. In 

this latter case the interplay among the rules (the Kubrik‟s cube metaphor) might 

lead to either integrate or limit or even exclude one or the other 34 . Indeed the 

insurance protective rules tend to adjust the protection to the actual weaknesses of 

the counterpart and the client-consumer can profit also of the protection offered 

by the consumer code (e.g. against unfair terms) as clearly emerging from the 

consumer code (art. 127, section 1, art. 135, section 1) which prevent the limitation 

of rights endowed by other norms. 

33 On the insured as a special kind of consumer see A.D. CANDIAN, Contratto di assicurazione e clausole vessatorie. 

Lineamenti generali, 955 ss.; V. PETRONE, Clausole vessatorie e contratti di assicurazione sulla vita, parte II, 1013 ss.; D. 

CERINI, Clausole vessatorie e contratti di assicurazione danni, parte III, 1047 ss., in Aa.Vv., Le clausole vessatorie nei contratti 

con I consumatori commentario agli artt. 1469 bis -1469 sexies del codice civile, a cura di G. ALPA e S. PATTI, tomo II, 

Torino, 1997. 

34 See P. CORRIAS, La disciplina del contratto di assicurazione tra codice civile, codice delle assicurazioni e codice del consumo, in 

Resp. civ. e prev., 2007, 1749ff.



- whether there are separate codifications for commercial insurance and consumer insurance (for 

example: consumer insurance is governed only by the Civil Code whereas commercial insurance is 

governed by the Commercial Code) and what the relationship of both codifications is. 

This is not applicable, due to what we have said before. 

V. “CONSUMER” AND “COMMERCIAL” RISKS. 

1. How does the legal system distinguish “consumer” from “commercial” risks ? 

The distinction between consumer and commercial risks does not exist in the 

Italian civil code, which also does not speak of „consumers“ in the rules dedicated 

to the insurance contracts. The Italian legislator has recently enacted the consumer 

code choosing - alike other legislators, such as the French one - to convey all the 

rules of consumer law in a „code“ different from the civil code. 

As a consequence, even the few articles, that had been inserted in the civil code, in 

order to address consumer problems (e.g.: artt. 1469bis ff., about unfair terms in 

consumer contracts; artt. 1519bis ff., about the sale of consumer goods) were 

moved in the consumer code. 

Yet, the consumer code does not provide for rules about insurance law (and 

insurance contracts), which remain dealt with in the civil code and in the code of 

private insurances. 

For this reason, we can conclude that there is just one case in which the distinction 

between consumer and commercial risks has some direct legal relevance: art. 33 ff. 

of the consumer Code, which regulates the unfair terms in consumer contracts, 

following EC Directive 93/13. 

These rules applies only to consumers. As a consequence, in the drafting of a 

consumer insurance contract (consumer risk) attention has to be paid on the



balance of the contractual risks between the contractual parties and particularly on 

the attribution to the consumer party of contractual risks which could cause „a 

significant imbalance in the parties‟ rights and obligation“ to his detriment. 

The rule concerning the protection of consumers in general can naturally play some 

role in creating some different regime (see above in this questionnaire, under VI.1), 

but it will not depend on an explicit law distinction between „consumer“ and 

„commercial“ risks. 

2. Does the legal system award protection for 

- large risks, 

- mass risks, 

- policyholders who are natural persons, 

- private consumers? 

The distinction between large risks and mass risks. 

The distinction between large and mass risks is unknown in the Civil code, but not 

in the code of private insurances. 

Art. 1, r), of the code of private insurances, gives the definition of large risks in 

reference to some (not to all the) risks indicated in art. 2, section 3. These risks are 

the following: 

1) risks regarding railway vehicles or air vehicles or sea-, lake-, river-vehicles; 

transported goods; air-vehicles third party liability; sea-, lake-, river-vehicles 

third party liability with exclusion of the craft subject to the compulsory 

insurance on the basis of art. 123 c.a.p.; 

2) risks in the credit and security sector, when the insured party regularly 

(literally as a professional: “professionalmente”) run an industrial, 

commercial or intellectual business and the risks pertain to that business;



3) risks regarding terrestrial vehicles, with exclusion of railway vehicles; or 

regarding fire or natural elements; other kind of damages to goods; motor- 

vehicle third party liability; sea-, lake-, river-vehicles third party liability for 

craft subject to the compulsory insurance on the basis of art. 123 c.a.p.; civil 

liability; pecuniary loss liability. 

All risks contemplated under 3) are qualified large risks only if the insured party 

exceeds at least two of the three following thresholds (referred, if it is the case, to 

the consolidated financial statement: total assets of the balance sheet exceeding € 

6.200.000,00; business volume exceeding € 12.800.000,00; average number of 

employee during the financial year exceeding 250 units. 

The Italian legislator does not give an explicit definition of mass risks: it could be 

argued that mass risks are all the risks which do not fit in the definition of large 

risks. 

The distinction between large and mass risks has some important legal 

consequence 35 : 

a) Art. 120, section 5, of the code of private insurances exempt from the 

disclosure duties rules those insurance intermediaries operating in the field 

of the large risks; 

b) The communitarian coinsurance (art. 161 of the code of private insurances) 

is possible in case of damage insurance for risks located in Italy only for the 

large risks contemplated in art. 1, section 1, r), of the code of private 

insurances. 

Policyholders who are natural persons 

35 The communitarian legislator (directive 92/49/EEC, art. 27) has given the contractual parties the choice of 

applicable law only for the large risks in the non-life sector. This rule does not appear in the Italian legislation, which 

rules the choice of law in art. 180 and 181 of the code of private insurances. According to art. 180, in non-life 

insurance for risks located in Italy, the contractual parties could agree to choice a foreign law, but they cannot 

contract out the national compulsory law. This article - which makes no difference between large and mass risks - 

seems more restrictive than the communitarian rule as to the freedom of the choice of law in large risks. But see 

now the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 

applicable to contractual obligations (Rome I), art. 7.2.



The Italian civil code does not give any relevance to „policyholders who are natural 

persons“. And also the code of private insurances does not offer any definition to 

such words. There are some rules which refer only to natural persons, but not in 

order to give them special protection. 36 Only art. 134, section 4bis, of the code of 

private insurances gives some relevance to the policyholder – natural person. 

According to this article, which applies to the motor-vehicle third party liability 

insurance, in case of an insured policyholder, who asks for the conclusion of 

another contract for another motor-vehicle of the same category, the insurer 

cannot offer a tariff worse than the existing one if the policyholder is a natural 

person or a component of his family, who lives with her or him. 

36 Many articles speak about „natural person“ but not in order to give special protection to the policyholder. See 

e.g.: 

1) Articles relating to the start up of the insurance business. If an Italian firm, which operates in freedom of 

establishment regime, will open a secondary seat in another member state, it shall appoint a general agent, 

that, if it is a legal person (persona giuridica), shall appoint a natural person as agent (art. 16, section 3, of 

the code of private insurances; and see also the same rule, codified in art. 23, section 2, of the code of 

private insurances, as to the opposite case: enterprise, located in another member state, which aims at 

opening a secondary seat in Italy). A similar rule is written also in art. 60, section 2, of the code of private 

insurances, relating to the start up of the reinsurance business by a reinsurance company, which has its seat 

in another member state. Further, art. 110 of the code of private insurances, which regulates the start up of 

the insurance intermediation business and the integrity requirements which a natural person shall meet in 

order to get the registration in the compulsory registers. 

2) Art. 96, section 2, c), which requires a consolidated financial statement in case of insurance or reinsurance 

firms under the control of just one person, if it is a natural person. 

3) Rules which regulate the insurance intermediation (artt. 112, sections 2 and 3; art. 113, section 2). 

4) Rules which regulate the activities of experts. 

5) Rules which regulate the insurance surveillance, stating that the authorities competent to authorize the 

insurance or the reinsurance business (art. 203, section 1, c) or the Authorities which have the power to 

oversee the credit or investment firms, which operate in another member State, must be consulted before 

the issuance of the authorization to run an insurance or reinsurance business to a firm controlled by the 

same natural person or legal person, which controls an insurance or reinsurance firm or, respectively, a 

bank or investment firm, authorized by another member State. 

6) Rules which regulate the issuance of the authorization to control an insurance or reinsurance company if 

the purchaser becomes a parent corporation and is a natural person (or a legal person) (art. 204, section 1, 

c). 

7) Rules which regulate the material intra-group transactions (art. 215, section 1). 

8) Rules which regulate the breach of disclosure duties by a natural person, which will be compelled to pay the 

fine (art. 311, section 4).



Private consumers 

As written above, in the year 2005, the term “consumer” has migrated from the 

Italian civil code (which mentioned it in few, recently enacted, articles) into the 

consumer code. As already specified, such code does not regulate the insurance 

field, to which is dedicated another “code”: the code of private insurances. 

The latter does not contemplate the term “consumer” in its “Definitions”; but the 

term consumer is used in some (very few) articles. 

Art. 131, section 2bis, provides that insurance intermediaries, when offering motor- 

vehicle third party insurance contracts, shall give to the „consumer“ preventive 

information on the gains which they will receive from the insurance company. This 

same section adds also that this information shall be contained in the documents 

given to the „contracting party“: it is remarkable that this last specification seems 

contradictory because it does not refer more to the „consumer“, but to the 

„contracting party“, which is a wider term. 

Art. 136, section 3bis, provides for an information service by the Ministry of 

Economy (also in its website), in order to enable consumers to compare the 

insurance rates offered from the insurance companies for her/his own profile. 

This provision will probably extend its benefit to any natural person (not only 

consumer) in need for an insurance coverage. 

Finally, art. 5, section 3, of the code of private insurances gives ISVAP the role of 

promoting an appropriate degree of consumer protection. 

As already mentioned (see above § V.1) the EC directive on unfair terms in 

consumer contracts applies also to the insurance field and offers a special 

protection to the consumer (but not to non-consumers) against the risk that in the 

drafting of an insurance contract will be put terms which produce a significant 

imbalance of her/his rights and obligations.

VI. SUBSTANTIVE ASPECTS. 



1. In what areas do consumers enjoy special protection ? 

Preliminary remarks: Consumers, private insured and the weaker party. Distinction 

between consumer protection policy and special rules in contract law 

The code of private insurances, and the civil code in the articles on contract and on 

insurance contract provide no special protection for consumers as such (even if in 

most cases private insured parties are also consumers). Anyway, the weaker party of 

an insurance relationship enjoys some protection in different ways, as it will be 

specified for each issue. 

In few specific cases, the consumer code provides rules and tools useful also in 

insurance contracts. The main legal tool, establishing a very special protection for 

consumers, is the regulation of unfair contract terms, which nevertheless has not 

been applied to insurance contracts in meaningful ways 37 . 

Article 3 of the code of private insurances states that the control on insurance 

activities aims, among other goals, at policyholders‟ protection and at information 

and protection of consumers. As specified by article 5, the control on insurance 

activities and all useful acts in order to obtain consumers protection are exercised 

by the ISVAP, the Italian Insurance Authority. ISVAP is entitled to enact 

regulations (Regolamenti) and to use a wide range of powers (for instance, see infra, 

about premium). 

The inspiration of the code of private insurances and of the ISVAP‟s powers for 

consumer protection policy are very important in order to understand many rules 

introduced both in the civil code and in the c.a.p. In fact, as we will explain, many 

37 The first, very important, applications of the unfair contract terms directive in insurance contracts were the actions 

conducted by the associations of consumer in order to ban some clauses from the general conditions of insurance. 

They were pre-emptive actions, for which, please, refer to the present report, par. III.3.



of these rules have to be applied to every insured party and not only to consumers. 

Nevertheless, many of them are typical consumer protection tools (for instance, 

cooling off periods, ius poenitendi, information duties, etc.), even if they apply to the 

parties of an insurance contract despite of the qualification of the weaker one as 

consumer. For that reason, in the following answers all tools will be highlighted, 

even if distinguishing between areas in which consumers enjoy special protection 

and areas in which policyholders or insured parties enjoy protection by means of 

rules inspired by consumer protection policy. 

(Pre- and post-contractual) information 

In the area of information duties (and rights), consumer protection is given above 

all by the consumer code. The consumer code provides general rules, which must 

be applied in all activities, and contracts, involving a consumer. The most 

important provisions are: 

- Art. 2, par. 2, which recognizes to consumers and users some fundamental 

rights, such as the right to adequate information and to fair advertising (sub c)), the 

right to the exercise of commercial practices with good faith, fairness, and loyalty 

(sub c-bis)), and the right to fairness, transparency and equity in contractual 

relationships (sub e)); 

- Art. 5, par. 3, providing that all information to consumer have to be adequate 

to the kind of communication used and expressed in understandable way, also 

keeping into consideration the way to conclude the contract and the specific 

features of the field, in order to obtain the awareness of the consumer; 

- Articles 20 ff., forbidding unfair commercial practices, among which unfair 

or misleading advertising. For instance, some cases decided by the Autorità 

Garante per la Concorrenza ed il Mercato, the Italian antitrust authority, concerned



advertising of life insurance products, and advertising of benefits promised to 

consumers buying motor liability insurance 38 . 

- Articles 67-bis ff., fixing specific rules about information to be given to 

consumers, in cases of distance-selling of financial services. 

Apart from the consumer code, under the Italian civil code, no special rules are 

provided in order to ensure consumers with proper information before and after 

the conclusion of the contract of insurance. 

On the contrary, under insurance contract law, the insured underwrites a proposal 

(which the insurer considers for acceptance), and therefore is supposed to have 

knowledge of the terms and conditions of the policy. This is the traditional 

assumption underlying the qualification of the contract of insurance as a contract 

of utmost good faith in most legal systems. 39 Nevertheless, the matter of 

information asymmetries in insurance contracts has been recently read with more 

attention to the real knowledge and to the contractual power of the applicant. 40 In 

fact, and among many other provisions, in order to keep in balance the positions of 

the parties, both the civil code and the code of private insurances contain some 

rules requiring some kind of information which the insured party ought to receive 

before or after the conclusion of the contract. As said before, many of these rules 

are certainly inspired by a consumer protection policy, but they apply to applicants 

and insured parties as such, thus not only to consumers. However, article 120, par. 

5, c.a.p. states that intermediaries‟ duties of information do not apply to policies 

covering large risks and to contracts of reinsurance, thus excluding from general 

protection (only) professionals and undertakers. 

38 Provvedimento AGCM, respectively, nr. 18586, in Bollettino AGCM nr. 26 of 14 august 2008, and nr. 20007, in 

Bollettino AGCM nr. 26 of 25 june 2009. 

39 Please, see: V. SALANDRA, Assicurazione, in Commentario al Codice Civile, a cura di A. SCIALOJA e G. BRANCA, sub 

artt. 1861-1932, Capo XX, Bologna-Roma, 1966, III ed., 172-441; and G. FANELLI, Le assicurazioni, in Trattato di 

diritto civile e commerciale, diretto da A. CICU e F. MESSINEO, vol. XXXVI, t. 1, Milano, Giuffrè, 1973; A. GAMBINO, 

La neutralizzazione dei rischi nella struttura e nella funzione giuridica unitaria del contratto di assicurazione, in Riv. dir. comm., 1985, 

II, 209-221; A. ANTONUCCI, L’assicurazione fra impresa e contratto, Bari, 2000; C. RUSSO, Trasparenza ed informazione nel 

contratto di assicurazione, Padova, 2001; V. DE LORENZI, Contratto di assicurazione. Disciplina giuridica e analisi economica, 

Padova, 2008. 

40 A.D.CANDIAN, Contratto di assicurazione e clausole vessatorie, in Le clausole vessatorie nei contratti con i consumatori, a cura di 

G. ALPA e S. PATTI, Milano, 1997, t. II, 955; A. MONTI, Buona fede e assicurazione, Milano, 2002; M. GAGLIARDI, Il 

contratto di assicurazione. Spunti di atipicità ed evoluzione del tipo, Torino, Giappichelli, 2009.



Information concerned are: 

(a) pre-contractual information about the insurer and/or about intermediaries 

involved; 41 

(b) pre-contractual advise about the kind of policy needed, balanced with 

reference to specific personal features of the insured person; 42 

(c) pre-contractual information related to the main features of the policy 

(including both explanation from the intermediary and the provision of copy of all 

the conditions of insurance); 43 

(d) contractual information embodied in the contract, i.e.: the contract and all 

documents ought to be clear, understandable and complete; moreover, in the 

contract, terms and conditions imposing on the insured specific duties or 

warranties must be highlighted and specifically underwritten; 44 

(e) post-contractual (during contract execution) information, particularly in 

motor liability insurance, concerning the procedure and the evaluations of the 

insurer in order to pay the insured indemnity to the policyholder; 45 

(f) pre-contractual information, in life insurance, about the financial value of 

the contract, the costs and risks of the contract and, more particularly, in financial 

insurance products (such as index-linked policies), for which information provided 

must include (during all the time of contract validity) also the results of managed 

investments; 46 

(g) specific rules are provided for pre-contractual information in distance- 

selling (article 121 of code of private insurances); 

(h) pre-contractual information about the right to withdrawal (ius poenitendi) in 

life insurance contracts. 47 

41 Articles 185 and 120 of the code of private insurances, as specified in the Regolamento Isvap nr. 5/2006. In 

particular, art. 120, par. 2, c.a.p.: insurance intermediaries ought to declare whether they have any duty to offer 

products of one or more insurers or if they give independent advise. 

42 Article 120, parr. 3 and 4, of the code of private insurances, as specified in the Regolamento ISVAP nr. 5/2006. 

43 Article 120, parr. 3 and 4, of the code of private insurances, as specified in the Regolamento ISVAP nr. 5/2006 

and article 185 c.a.p. on the so called “nota informativa” (information brief document). 

44 Article 166 of the code of private insurances, and articles 1341 and 1342 of the civil code. 

45 Articles 148 and 149 of the code of private insurances, and d.p.r. 18 luglio 2006, n. 254, particularly art. 9. 

46 Article 1925 of the civil code and Article 185, par. 4, of the code of private insurances. 

47 Article 177, par. 2, of the code of private insurances.



All information duties just listed apply to every insurance contracts even if their 

inspiration could be found also in consumer protection policy. As said before (in 

the present report, par. IV), the interaction among different codes is not clear. In 

particular, in insurance contracts the coordination of the rules contained in the 

c.a.p. with the ones expressed by the consumer code and by the civil code is both 

difficult and of fundamental importance. 

In this perspective, it is possible to read the abovementioned information duties 

together with the provisions of articles 2 and 3 of the consumer code. This way, the 

distinction between consumers and non consumer insured parties could be drawn 

in the sense of a stricter interpretation of the duties when a consumer is involved. 

However, the real existence and scope of such a distinction depends on the 

interpretation given to the issue of interaction and coordination among codes. 48 

Premium 

A particular form of consumer protection consists in transparency and 

comparability of premiums and tariffs, with specific applications in the field of 

motor liability insurance. The code of private insurances (articles 131 and 133) 

requires insurers of motor liability insurance, as far as policies constructed on a 

experience-rate basis (bonus-malus policies) are concerned, to give notice on their 

websites and in the premises of their intermediaries (agents) of the premiums 

applied for each of the categories of insured party. 

Moreover, the ISVAP, even if it is not allowed by EC law to require insurers a 

systematic and preventive communication of the tariffs applied, is allowed to 

investigate on the rationales used by insurers in calculating premiums and in fixing 

the tariffs. The compatibility of this power with EC law, together with the utility of 

48 The matter of interaction and of systematic coordination among codes is studied in the same light of the 

relationship between civil code and special legislation. See F.D. BUSNELLI, Il diritto civile tra codice e legislazione speciale, 

Napoli, 1984 and, with specific attention to insurance contracts, F.D. BUSNELLI, Prefazione a Le assicurazioni private, a 

cura di G. ALPA, Torino, 2006, I.



the tool in order to protect consumers, has been stated and recognized recently by 

the European Court of Justice in the decision of April 28 th , 2009, case European 

Commission v. Italy. 

Terms and conditions imposing on the other party specific duties or warranties 

(warranties and exclusion clauses). 

The several “codes” governing insurance law provide no special protection in the 

field of warranties or of exclusion clauses in insurance contracts. 

However, the civil code, at articles 1341 and 1342, as mentioned, ensure that in 

every contract written by one party (as insurance contracts), terms and conditions 

imposing on the other party (the insured, and not only the consumer) specific 

duties or warranties must be highlighted and specifically subscribed. Otherwise, the 

clauses are void. This is the case for exclusion clauses, specifically mentioned in the 

articles, despite of the difficulty to distinguish them from clauses describing the 

subject of the contract (core terms), i.e. policies‟ clauses describing the risk covered. 

Terms and conditions imposing on the other party specific duties or warranties are 

mentioned also in the consumer code, in the rules implementing the EC directive 

nr. 93/13/CE on unfair contract terms in consumers contracts. Article 33 (together 

with the articles which follows it) contains a definition of unfair term in business- 

to-consumer contracts which, under Italian law and its systematic interpretation 49 , 

focuses on the clause of good faith, in its objective meaning. Terms, warranties and 

other clauses, have to be interpreted having regard to their weigh in the complexity 

of the contract: when causing an alteration in the normative equilibrium of the 

contract, in contrast with the clause of good faith, the single term can be declared 

void. 

49 F.D. BUSNELLI, Una possibile traccia per una analisi sistematica della disciplina delle clausole abusive, in Commentario al capo 

XIV bis del codice civile: dei contratti del consumatore, a cura di C.M. BIANCA e F.D. BUSNELLI, in NLCC, 1997, II, 757.



This provision has a particular meaning in insurance contracts. In fact, terms 

describing the risk covered are excluded from the judicial scrutiny (article 34, par. 

2), when clearly and transparently expressed. 

The real problem in insurance contracts is that many terms, warranties in particular, 

are neither clearly clauses describing the risk, nor exclusion clauses 50 . Therefore, the 

role of judges in interpreting several clauses is pivotal both in clarifying the 

distinction between exclusion clauses and clauses describing the risk, and in stating 

how the entire contract ought to be constructed in order to be clear enough. 

Furthermore, the clause of good faith, whether in consumer contracts or not, has 

been applied to give “old” civil code rules a new interpretation, more “friendly” to 

the insured party 51 . 

For instance, the policyholder (and insured)‟s duty of disclosure has been mitigated 

imposing another duty on insurers. Because of the rule of good faith, insurers or 

their intermediaries, when requiring answers to specific questions, should include 

all the questions and information they need. Information not provided by the 

insured, if not clearly included in the questionnaire, cannot give way to cancellation 

of the contract or to the denial to pay the indemnity 52 . 

The rules on unfair contract terms in business-to-consumer contracts are provided 

in order to protect consumers. However, their effective scope is wider. In fact, 

insurers use to write contracts on the basis of general conditions of insurance, thus 

making a set of contractual clauses, which is the same for all subscribed policies. 

When a clause is judged unfair by a court, it is easy to foresee that the clause will 

50 A.D.CANDIAN, Contratto di assicurazione e clausole vessatorie, in Le clausole vessatorie nei contratti con i consumatori, a cura di 

G. ALPA e S. PATTI, Milano, 1997, t. II, 955; F. DI GIOVANNI, Difetto di trasparenza e valutazione di vessatorietà delle 

clausole predisposte nei contratti del consumatore, in Clausole “vessatorie” e “abusive” a cura di U. RUFFOLO, Milano, 1997, 

183; N. GRASSANI, Sulla natura delle clausole delimitative del rischio assicurato inserite in condizioni generali di contratto di 

assicurazione, in Commentario al capo XIV bis del codice civile: dei contratti del consumatore, a cura di C.M. BIANCA e F.D. 

BUSNELLI, in NLCC, 1997, II, 751-1293, 1020; G. VOLPE PUTZOLU, Clausole vessatorie e rischio assicurativo, in Dir. 

econ. assic., 1997, 773; V. RICCIUTO, Note in tema di clausole abusive e rischio assicurato, in Europa e dir. priv., 1998, 51. 

51 A. MONTI, Buona fede e assicurazione, Milano, Giuffrè, 2002; M. GAGLIARDI, Il ruolo della buona fede oggettiva nel contratto 

di assicurazione: il vecchio contratto uberrimae fidei dialoga con il codice civile, in Il diritto civile tra principi e regole – Liber Amicorum 

per Francesco D. Busnelli, a cura di G. COMANDÉ – F. GIARDINA – E. NAVARRETTA – G. PONZANELLI, 

Vol. I, Milano, Giuffrè, 2008, 593-604. 

52 Cass. 20 novembre 1990, n. 11206, in Giur. it., 1991, I, 1, 1029; Cass. 25 marzo 1999, n. 2815, in Resp. civ. prev., 

2000, 341; Cass. 12 maggio 1999, n. 4682, in Danno e resp., 1999, 1118. See C. CAVALIERE, Privacy e contratto di 

assicurazione, in Contr. Impresa / Europa, 1998, 1, 346, 350 ff..



not appear anymore in the general conditions. The result, due to consumer 

protection, is extended to all insured parties. Even if in this case it consists of two 

steps (the court‟s decision in a business-to-consumer case, and the following 

insurer‟s choice to drop the clause from general conditions of insurance), the 

mechanism is the same of the pre-emptive action of consumers associations 

introduced by the same statute (see, in the present report, par. III.3). 

Duration, withdrawal and ius poenitendi. 

Article 1899 of the civil code, recently modified 53 , gives the insured party under 

long term (more than five years) non life policies the right to withdrawal at the end 

of the first five years. This rule has been introduced in order to ensure 

policyholders the chance to change insurer and, thus, to enhance competition in 

insurance market. Under this perspective, the modification has been presented and 

intended as a tool to enhance consumer protection. 

As far as life insurance is concerned, the code of private insurances contains two 

very important rules. 54 

The first, embodied in article 176, gives the applicant the right to dismiss his/her 

proposal before insurer‟s acceptance. This rule seems to be a tool for consumer 

protection because it introduces a (very large) exception to the general rule in 

insurance contract law: the proposal cannot be changed or dismissed until 15 or 30 

days (article 1887 of the civil code). 

The second rule, fixed by article 177, gives the insured party the chance to 

withdraw the contract in 30 days from the day of acceptance. This right to 

withdrawal is also called ius poenitendi, and it is a typical tool of consumer protection, 

as enhanced by European Community law. 

53 The first modification was introduced by article 5, par. 4, of d. l. 31 gennaio 2007, n. 7. The right of the insured 

party was extended at all long term non life contracts, and was actionable at the end of each year. The present 

formulation is due to article 21, par. 3, of the l. 23 luglio 2009, n. 99. 

54 These rules were in fact already provided by d.lgs. 194/1995 implementing the third life directive.

Unfair Commercial Practices 



Articles 20 ff. of the consumer code, implementing the European Directive nr. 

2005/29/CE concerning unfair business-to-consumer commercial practices 

(“Unfair Commercial Practices Directive”) 55 , forbid unfair commercial practices. 

Besides the above mentioned unfair or misleading advertising, the Autorità Garante 

per la Concorrenza ed il Mercato has decided some insurance cases in which the 

insurers (or their intermediaries) acted without due diligence in managing the 

termination of the contract by the insured parties 56 . 

2. What are the instruments of protection in consumer insurance law ? 

Protections of consumers in insurance law derives by specific rules set by the civil 

code, by special legislation and regulations and also by activities of the control 

authorities as described above. 

Some aspects have been dealt with above. Nevertheless, let us clarify that in most 

cases the general rules on insurance - set both by legislations and/or regulations - 

do not distinguish the kind or level of protection according to the status of the 

policyholder or beneficiary of the policy. In fact, in most cases, the law 

encompasses all counterparts of the insurer. We will try to clarify the exceptions to 

that rules; let also explain that these exceptions merely refer to solution coming 

from general contract law, which on the contrary distinguish quite more often 

between consumers‟ transactions and B2B contracts. 

For what concerning legal rules, a lot of mandatory rules are present both in the 

civil code and in the code of private insurances. 

55 European Directive 2005/29/CE of the European Parliament and of the Council of 11 May 2005 concerning 

unfair business-to-consumer commercial practices in the internal market “Unfair Commercial Practices Directive”, in 

OJEU L 149 of 11 june 2005, 22-39. 

56 Provvedimenti AGCM nr. 19655, in Bollettino AGCM nr. 12 of 14 april 2009, and nr. 20158, in Bollettino AGCM nr. 

30 of 29 july 2009.



Mandatory rules 

The insurance contract is defined and regulated by article 1882 to article 1932 of 

Book Four of the civil code. Most of the rules provided in the civil code are 

mandatory as they cannot be derogated but for in favour of the insured party. Such 

rules are identified in art. 1932 itself. 57 

Other mandatory rules are to be found in special legislation and now in the code of 

private insurances. These rules apply notwithstanding the status 

(professional/consumer) of the party in question. Consequently the term 

policyholder refers to both of them. 

Cooling off periods. 

Cooling off periods are provided for: 

a) life insurance 

b) non life insurance and life insurance in case of distance selling. 

More in details, in case of supply of life assurance policies the policyholder (both 

consumer and non consumer) is entitled to cancel the contract as provided by 

article 177 c.a.p. In order to ensure the concrete possibility of exercising such 

fundamental right, the information brochure must clearly state the first day from 

which it is possible to exercise it and the procedures to follow. 

Under the above regulation, the undertaking, within 30 days of receiving the 

notification of cancellation, must reimburse the policyholder any paid-up premiums 

net of the portion relating to the period in which the contract was effective and of 

any costs incurred for issuing it, provided that such costs were determined and 

quantified according to the same article 177 c.a.p. 

57 Comments can be read in A.D. CANDIAN, D. CERINI, V. PETRONE, Clausole vessatorie e contratti di assicurazione, 

in G. ALPA and S. PATTI, Le clausole vessatorie nei contratti con i consumatori. Commentario agli articoli 1469-bis – 1469sexsies 

del Codice Civile, Milan, 1997; F. ROMEO, La tutela del consumatore nel contratto di assicurazione danni, Milan, 2004.



In accordance with article 176 c.a.p., in life insurance a right to revoke the proposal 

is allowed to all parties contracting with an insurance company. 

The right of cancellation or cooling off period is not provided for non-life 

insurance contracts. 

For all distance contracts sold, the cooling off period applies according to Directive 

2002/65/CE as implemented by the Italian law. 58 

Information and advice duties. 

The chapter referring to information and advice duties is long enough and here can 

be only summarized in its principal steps. Moreover, one should consider that 

information duties are set for the insurers and the insurance intermediaries so that 

in the end the set of information to be provided to insured parties is wide enough. 

In fact, information and advice duties have been progressively enlarged during the 

last decades. While the 19th century and the first half of the 20th century have 

focused onto the duties of information of the insured parties, from the second half 

of the 20th century, until today, the opposite flows of information have been 

protagonists of the debate. 

Such an alteration of perspective is due to a change of perception about the 

asymmetric relationship between the insured party and the insurers. The original 

idea that the insured was the one that best appreciated the risk has not disappeared; 

nonetheless, when we talk about imbalance of information in contracts with 

consumers, we take a realistic view, accepting that the contractor does not read the 

contractual content and therefore does not know it. Even if she read the clauses, 

she would not be able to appreciate their content in the way the other party would. 

Therefore the insured party subscribes behind a “veil of ignorance”. 

58 See E. FERRANTE, Commento artt. 176-178, in M. BIN (Eds.), Commentario al codice delle assicurazioni. Decreto 

legislativo 7 settembre 2005, n. 209, Padova, Cedam, 2006, 511 ff.; D. CERINI, Insurance Law, in International Encyclopedia 

of Law, Kluwer international, 2006, 163 ff.



The persuasive strength of this assumption is noticeable. In the content of the 

contractual text, it has highlighted the role of disclosure duties of companies as 

those of intermediaries. 

The importance of the duty to inform the insured party is clearly testified by the 

code of private insurances where a entire part (Titolo XIII) deals with the duties to 

inform and of transparency towards the insured. 

The need of protection of the consumer through transparency and information 

finds an answer in the duty to give the maximum of information before the 

conclusion of the contract. In particular, a first level of transparency in consumer 

contracts (as well as in all contracts also concluded by non-consumers) not 

classified as large risks is granted by the duty to give the information notice (so 

called “nota informativa”). 

The information notice is a document that the insurer is obliged to give to the 

policyholder before the conclusion of the contract according to article 185 c.a.p. 

The specific content of the information notice is integrated, in life and non-life 

insurance, by specific regulations set by ISVAP and it provides for information 

useful in order to identify the insurance company, the basic elements of the 

contract, the clauses of exclusion, etc. 

The information duties also include the duty to give all contractual documents 

before the conclusion of the contract. 

As anticipated, important information duties and duty to advice is also set on the 

insurance intermediaries. It is up to them, in fact, to deliver pre-contractual 

documents disclosing their role and position in the transactions. In addition they 

have a duty to assist the client in the choice of the proper contract (see art.120 of 

code of private insurances). 

Specific and additional information duties are provided for life insurance contracts 

where they also are identified as financial services or submitted to the rules 

approved by control authorities other than ISVAP.



Control of general conditions of insurance. 

The protection of consumers is also granted by way of the provision referring to 

general conditions in contracts. 

The protection of consumers against unfair contract terms represents a 

fundamental step in the direction of promoting a higher standard of fairness in 

business to consumers relations. 

In the Italian legal system such protection is built on two different sets of rules. 

The first one coincides with the „general rules‟ for standard form contract in all 

types of contract notwithstanding the status (consumers or not consumers) of the 

adherent party: this regulation is to be found in article 1341 c.c., first and second 

paragraphs; consumers may benefit from additional protection deriving originally 

from articles 1469-bis c.c. and now included in articles 33–38 of the consumer 

code). 

More precisely, article 1341 c.c. provides a basic protection of all contracting 

parties (both consumers and professionals) who adhere to a standardized contract. 

In its first paragraph, the article establishes the principle of knowledge (so called 

“principio di conoscibilità”) according to which standard conditions prepared by 

one of the parties are binding on the other party if, at the time of formation the 

contract, the latter knew or should have known of them by using ordinary 

diligence. 

Article 1341, c.c., second paragraph, strengthens this rule by stating that, in any 

case, some conditions and terms are ineffective unless specifically approved in 

writing if they provide - in favour of the person who has prepared them - 

limitations of liability, the power of withdrawing from the contract, the suspending 

of the performance and other onerous clauses. 

It is clear that the article provides „formal‟ protection to all contracting parties 

under the requirement of a double signature as a proof of specific approval of these 

clauses.



There is no doubt that, at the time of approval of the civil code (1942) this rule 

represented a truly innovative discipline. After more than 67 years, the need for a 

special protection of consumers has nonetheless proved the insufficiency of such a 

formal protection. That is the reason why article 1341 c.c. is still in force and 

continues to be applied, even though in the particular area of consumer contracts 

its practical utility has been bypassed by the implementation of Directive 

EC/93/13 and the following adoption of articles 1469-bis ff. c.c. (new rule articles 

33ff. consumer code). 

Insurance contracts are most often standard or adhesion contracts. The rule of in 

dubio interpretatio contra proferentem established by article 1370 c.c. is consequently 

often applied. 

According to the above-mentioned rule (also abbreviated as the in contra proferentem 

rule) provisions contained in the standard conditions of a contract or in forms of 

formularies which have been prepared by one of the contracting parties, are 

interpreted, in case of doubt, in favour of the other party. If there is any ambiguity 

in the language used, the contra proferentem rule results in the adoption of the 

construction most favourable to the insured. 

It should be clarified that the notion of „ambiguity‟ is applied by the courts in a very 

wide sense and may derive not only from the language of a single clause but also 

from a systematic reading of a number of clauses. 

3. What role does consumer policy play ? 

General policies 

One should summarize the matter by saying that there is an explicit policy or 

principle set in order to clearly inform the consumers about contract terms and 

their rights in the contract.



This result ensues also by the reference to the duty to inform and to “educate” the 

consumers set by the consumer code as provided in art. 4. 59 

Centers advising consumers 

They are included in the functioning of consumer associations. In addition, ISVAP, 

when performing its role under artt. 3-5 of the code of private insurances, can 

provide for general information to consumers. 

Consumer organisations 

As said above, consumer organisations and associations play an important role in 

promoting collective injunctions; they will perform an even more important role in 

the (forthcoming) class action suits. 

They often sign agreements with insurance companies on specific matters (i.e. 

motor insurance). 

59 See consumer code, „Article 4 – Consumer education”: 

(1) Education of consumers and users is designed to encourage awareness of their rights and interests, the 

development of associations, participation in administrative procedures and their presence in representative 

bodies. 

(2) Activities designed to educate consumers carried out by public or private bodies are not for promotional 

purposes. They are intended to explain clearly the characteristics of goods and services and to make the 

costs and benefit of choosing such goods or services clearly evident. They shall also give special 

consideration to those categories of consumers that are most vulnerable” 

For a comment see R.M. PELLEGRINI, Educazione del consumatore, in Codice del consumo. Commento al d. lgs. 6 

settembre 2005, n. 206, Milan, Giuffré, 2006, 37 ff.

INTELLECTUAL PROPERTY LAW 

“THE BALANCE OF COPYRIGHT” 

A) INTRODUCTION 

SALVATORE SICA * 

VIRGILIO D’ANTONIO ** 

At present, Italian copyright law is, in essence, established by an 

antiquated statute (law no. 633 of 22 nd April 1941) and by Title IX (articles 

2575-2583) of Book V of the Italian Civil Code (dated 1942 and, with regard 

to copyright law, never reformed). 

So, mainly to bring copyright law into line with the changes in society 

and the progress of the digital communications revolution, a need for a 

substantial reform has been felt for many years. 

Consequently, after the failure of many reform projects, in 2007 the 

Council of Ministers approved a bill to Government for the drafting of an 

Italian Copyright reform. One of the most important players in this project 

was the “Comitato Consultivo Permanente per il diritto d’autore”, chaired by Prof. 

Gambino; the Committee, in the last few years, has heard proposals from the 

academic world and from the principal associations representing interests 

most affected by Copyright Law (e.g. consumers, libraries, SIAE, providers, 

open content, creative commons, mass media). 

On 18 th December 2007, this preliminary work was merged into the 

submission of all proposals to the Minister delegated (id est, the “Ministro per i 

beni e le attività culturali”). 

However, under the present government, the reform process of Italian 

Copyright Law has been stopped and the dialogue with the most relevant 

stakeholders, established by Gambino’s Commission, has been interrupted. 

This multilateral comparison method failed especially because the Bureau of 

_____________________________ 

* Salvatore Sica is Professor of Comparative Private Law at the University of Salerno 

** Virgilio D’Antonio is Associate Professor of Comparative Private Law at the University of Salerno



Council of Ministers, on 15 th December 2008, instituted a special committee 

against digital and multimedia piracy (“Comitato tecnico contro la pirateria digitale e 

multimediale”, also called “Comitato Antipirateria”). The main criticism is that this 

committee does not involve any exponent of user rights, sector industries and 

culture associations. 

With regard to the user rights, from a lexical (and substantial) point of 

view, it is necessary to point out that Italian copyright law does not take “user 

rights” or “fair use” into account, but only exceptions to the copyright. 

Indeed, with the 2003 reform, the title of Chapter V of law no. 633/1941 was 

changed from “Free Utilisation” to “Exceptions and Limitations [to copyright]”. 

Finally, one should specify that a central role in the exercise and 

administration of authors’ economic rights is granted to Società Italiana degli 

Autori ed Editori (Italian Society of Authors and Publishers) - S.I.A.E. 

This organization was established in 1882 as a private corporation, but 

in the course of time and, mainly, in the thirties, it was qualified as a public 

body by the Court of Cassation (cf. Cass. no. 1192/1937). At present, as a 

consequence of further decisions by the Italian Supreme Court, S.I.A.E. is 

considered as an economic public agency grounded on an association 

agreement (cf. Cass., sez. un., no. 2431/1997 or Cass., sez. un., no. 

8880/1998). 

Article 180 of law no. 633 of 1941 grants to this organisation the 

exclusive right to act as an intermediary in any manner whether by direct or 

indirect intervention, mediation, agency or representation, or by assignment of 

the exercise of the rights of performance, recitation, broadcasting, satellite 

broadcasting and mechanical and cinematographic reproduction of protected 

works. 

Moreover, SIAE carries on its activities in those foreign countries in 

which it possesses organized representation. This exclusivity of powers does

Salvatore Sica e Virgilio D’Antonio 

Intellectual Property Law. “The Balance of Copyright” 

not, however, prejudice the right of the author or his successors in title to 

exercise directly the rights recognized in their favour by this Law. 

B) QUESTIONS AND ANSWERS 

1. To what extent does national law differentiate in terms of the 

effects of copyright law: 

great extent. 

National law differentiates in terms of the effects of copyright law to a 

Main differentiation criterion: The main difference is between moral 

rights and economic rights. Moral rights are ensured by law to protect the 

author’s personality and are preserved even after the assignment of the 

economic rights. The most important moral rights are paternity of the work 

(i.e. the right to claim one’s own status as author); integrity of the work (i.e. 

the possibility to oppose any change that might damage the author’s 

reputation) and publishing right (the possibility to decide whether to publish 

the work or not). 

On the other hand, the economic rights allow the author to grant or 

deny authorization for the use of his work and economically benefit from it. 

The most important economic rights are reproduction right (i.e. the right to 

reproduce an unlimited number of copies in any way); performance, 

recitation, or public reading right (i.e. the right to present the work to the 

public in all the above-mentioned forms); communication to the public right 

(i.e. the right to diffuse the work through radio, television, satellite, cable, 

Internet, etc.); distribution right (i.e. the right to sell the work); adaptation 

right (i.e. the right to change the original work, modify it, adapt it, etc.). 

Anyway, Italian copyright law, as established in law no. 633/1941, 

differentiates in terms of the effects of copyright law according to various



categories of works and, in particular cases, to factual aspects (e.g. different 

markets and competitive conditions). 

a) according to the various work categories: Regarding the first 

criterion of differentiation, Chapter IV of Part I of the Italian statute 

distinguishes the effects of copyright law according to the following work 

categories of works: 

� dramatic-musical works, musical compositions with words, 

choreographic works and pantomimes (art. 33-37), 

� collective works, magazines and newspapers (art. 38-43), 

� cinematographic or audiovisual works (art. 44-50), 

� works broadcast (art. 51-60), 

� works recorded on mechanical devices (art. 61-64), 

� software (art. 64/bis-64/quater), 

� databases (art. 64/quinquies-64/sexies). 

The basis of differentiation is the specific features of these work 

categories, regarding exploitation rights. However, generally, these statute 

rules are applied only when there is not a different agreement between the 

interested parties (except for software and databases). 

A specific provision, connected only to works of figurative arts and 

manuscripts, concerns the right of the author in respect of the increase in 

value of his work (“diritto di seguito”), provided by art. 144-155 law no. 

633/1941. 

This right attributes to the author of these particular categories of work 

a credit operative erga omnes (with the important exceptions of private 

agreements reached by non professional operators or museums) and 

consisting of a percentage of the selling price paid in every sale of his work 

subsequent to the first one.



works: 

As noted, this specific regulation applies only to particular categories of 

� works of figurative art, in the form of paintings, collages, 

drawings, engravings, prints, lithographs, sculptures, tapestries, 

ceramics, glass works and photographs, as well as original 

manuscripts, which are original creations made by the author or 

replicas considered as original works of art (art. 145, par. 1); 

� replicas of works of art made in limited number by the author or 

under his authority are considered as originals, when numerated, 

signed or otherwise duly authorized by the author (art. 145, par. 

2). 

Rights of the author in respect of the increase in value of works of 

figurative art and manuscripts shall subsist for the lifetime of the author and 

until the end of the seventieth calendar year after his death (art. 148). These 

rights are recognized also to the authors not belonged to European Union, 

when their country laws provide the same treatment in favour of Italian 

citizens (reciprocity clause: art. 146, par. 1). 

b) According to factual aspects: 

� Different markets: Regarding the second criterion and, 

specifically, differentiation based on different markets, we can 

refer, in the field of literary works, radio works or works made 

public by other means, to the articles of current interest of an 

economic, political or religious character, published in magazines 

or newspapers, that may be freely used or reproduced (with 

certain conditions: see art. 65 law no. 633/1941). 

� Competitive conditions: With regard to this criterion, the 

competition between authors is regulated by art. 4 law no. 

633/1941. This article provides that, without prejudice to the



rights subsisting in the original work, works of a creative 

character derived from any such work, such as translations into 

another language, transformations into any other literary or 

artistic form, modifications and additions constituting a 

substantial remodelling of the original work, adaptations, 

arrangements, abridgments and variations which do not 

constitute an original work, shall also be protected. It also should 

be noted that if a work has been created by the indistinguishable 

and inseparable contributions of two or more persons, the 

copyright shall belong to all the joint authors in common and in 

the absence of proof of written agreement to the contrary, the 

indivisible shares shall be presumed to be of equal value (art. 10, 

paragraphs 1 and 2, law no. 633/1941). Regarding the 

competition between authors of a collective work, the person 

who organizes and directs its creation shall be deemed the author 

(art. 7 law no. 633/1941). In the absence of agreement to the 

contrary, art. 38 provides that, in this case, the exploitation rights 

shall belong to the publisher of the work, without prejudice to 

any right deriving from the application of art. 7. The individual 

contributors to collective works shall have the right to utilize 

their own contributions separately, provided they observe 

existing agreements or, in the absence of agreements, the rules 

set by art. 39-43 law no. 633/1941. 

� Other factual aspects: Only with regard to computer programs, 

databases and industrial designs, it is important if the work is 

created by an employee in the course of his duties. In fact, in 

this case, unless otherwise agreed, the employer shall be the 

owner of the exclusive right of economic use of the computer 

program or database created by his employee in the course of his



duties or on instructions given by the said employer (art. 12/bis 

law no. 633/1941). Similarly, unless otherwise agreed, where an 

industrial design has been created by the employee in the course 

of his duties, the employer shall be the owner of the exclusive 

rights of economic exploitation of the work (art. 12/ter law no. 

633/1941). 

c) According to other criteria: 

-------------------------- 

2. Which of the following instruments are used by national 

copyright law in order to achieve a “balance” of interests and to what 

extent are they used: 

With regard to achieving a “balance” of interests, Italian national law 

uses different legal instruments. 

Specific preconditions: First of all, the Italian Civil Code (like article 1 

of law no. 633/1941), as interpreted by the most relevant jurisprudence and 

doctrine, provides four specific preconditions to protecting works: 

a) a particular degree of creativity; 

b) novelty; 

c) work’s objectification or externalization; 

d) work’s affiliation to art or culture (specified by art. 2 law no. 

633/1941 in ten works categories protected: 1. literary works, 2. 

musical works, 3. choreographic or pantomimic works, 4. sculpture, 

picture and design, 5. architectural works, 6. cinematographic works, 

7. photographic work, 8. software, 9. data base and 10. industrial 

design).



The function of these preconditions is to guarantee a balance between 

the protection of individual creativity and the extension of copyright law, as 

well as to set this law apart from other laws regarding intellectual property 

(like patent or trademarks laws). 

Period of protection: Regarding the period of protection, Italian 

statute law distinguishes non-economic (or moral) and economic rights. 

Regarding the period of protection, moral rights are not subject to legal 

terms of protection. The right of economic exploitation of the work lasts 

throughout the author’s life and until 70 years after his death. At the end of 

this period, the work becomes part of the public domain. In case of 

collaborations, the work becomes part of the public domain when 70 years 

have elapsed since the death of the last co-author. 

Consequently, the function of this restriction in the period of paternity 

is to reconcile the interests of the author (and heirs) with that of society and 

cultural progress. Clearly, a suitable length of time of patrimonial rights acts as 

an incentive for intellectual works, guaranteeing the author a true prospect of 

earning money over time. 

On the other hand, the fact that the moral rights are not included 

represents a natural choice by Italian Law (also found in most other systems) 

to guarantee indefinitely to each author the recognition of certain rights over 

his intellectual creation (in primis, the patrimony of the same). 

The duration of the exploitation rights belonging to the State, the 

provinces, the communes, the academies or public cultural organizations, or 

to private legal entities of a non-profit making character, shall be twenty 

years as from first publication, whatever the form in which publication was 

effected. In the case of communications and memoranda published by 

academies and other public cultural organizations, the term shall be reduced



to two years, after which the author shall wholly recover his right to the 

unrestricted disposal of his writings (art. 29 law no. 633/1941). 

With regard to the period of protection, another important difference 

concerns the neighbouring rights, which have a shorter duration than 

copyright. Specifically, the period of protection, after the date of first 

publication or public communication, is: 

� 50 years for: phonographic producers (art. 75), producers of 

cinematographic or audio-visual works (art. 78/ter), radio and 

television broadcasting companies (art. 79) and performers (art. 

85); 

� 25 years for: works published or communicated to the public for 

the first time after the author’s economic rights have expired (art. 

85/ter); 

� 20 years for: critical or scientific editions of works of public 

domain (art. 85/quater), photographs (art. 92) and engineering 

projects (art. 99) 

� 5 years for: designs for stage sets (art. 86). 

Specific user rights, free of charge, granted by the law in favor of 

third parties: As concerning user rights and, particularly, user rights granted 

free of charge, these are stipulated in Chapter V of the Italian copyright law 

(e.g. article 65, 66, 67, 68, paragraph 1 and 2, 68/bis, 69, 79 etc.) and are 

understood not as user rights, but as exceptions and limitations to the authors’ 

rights. 

Particularly interesting, for example, is the hypothesis (art. 65, par. 1, 

law no. 633/1941) concerning the possibility of freely reproducing (in other 

magazines, newspapers, or broadcast) articles of current interest of an 

economic, political or religious character, published in magazines or



newspapers unless such reproduction is expressly reserved, provided an 

indication is given of the magazine or newspaper from which they are taken, 

the date and the number of the said magazine or newspaper. 

Furthermore, with regard to free user rights, an extremely important 

prevision is that introduced with paragraph 1/bis of article 70, which allows 

the unrestricted publication of low-quality and degraded images and music on 

the internet without charge, as long as these are for educational or scientific 

purposes without commercial gain. This law has caused a wide debate in 

Italian law circles, as to the correct definition of “low-quality and degraded”. 

Specific user rights granted by the law in favor of third parties 

subject to the payment of a remuneration to the right holders: Chapter V 

of law no. 633/1941 also regulates user rights that are subject to payment. 

With regard to these rights, it should be pointed out that Italian copyright law, 

in art. 68, par. 3, while prohibiting the reproduction of sheet music or musical 

parts, allows an intellectual work to be reproduced for personal use, up to a 

limit of 15% of each volume or publication, by means of a photocopier, xerox 

or similar system. In this case, those responsible for the place of reproduction, 

either using a photocopying, xerox or similar system themselves or allowing 

others to do so, also free of charge, must pay a fee to the authors and 

publishers of the works reproduced. 

A further important regulation in the field of user rights granted for 

payment, is that concerning the right of private copying: article 71/sexies 

establishes that any private reproduction of phonograms or videograms on 

any memory device for personal use is permitted as long as not for 

commercial gain either directly or indirectly and in respect of DRM. The 

payment for this right is, in the case of machines exclusively made for the 

analogue or digital recording of phonograms or videograms, a proportion of 

the price paid by the final purchaser to the retailer; in the case of audio and



video recording devices, analogue or digital, and fixed or transferable memory 

recording devices, the payment is proportionate to the amount of memory 

offered by the device. For distance video recording the payment is made by 

the individual offering the service and is proportionate to the monies earned 

for the said service (article 71/septies). 

The structure of user rights in Italian Law seems mainly well-balanced, 

with a series of important exceptions to the exclusive rights of the author, 

which however do not undermine the overall body of law in any significant 

way. It should be considered that Italian judges, used to making judgements in 

terms exceptions to holders’ rights rather than users’ rights, class these 

provisions as exceptional and tend to interpret them in a very restrictive 

manner. 

Obligations to conclude a contract established by law to grant a 

third party specific user rights in return for payment of a fee (mandatory 

licenses): Italian law does not provide any obligation to conclude a legally 

established contract. This is based on the idea of a wide contractual autonomy 

granted to the parties in the relationship, who (apart from a number of 

mandatory rules) are free to define how best to balance their relative interests. 

On the basis of this fundamental idea, many provisions are of a 

supplementary nature, in the sense that they are applied only if the contract 

does not already contain a relevant point. The parties, thus, are free to choose 

if to regulate or not their relationship in a contract, when, lacking agreements, 

the law may become applied. 

Rules on misuse: There is no specific rules on “misuse” in Italian 

copyright law.

2 c) to e) 



3. Does national law regulate the user right pursuant to Question 

� abstractly (for instance using general clauses), 

� concretely (for instance in the form of an enumeration), 

� by means of a combination of the two? 

Regarding user rights regulation, the Italian copyright law provides a 

concrete system of rules, specifically contained in the art. 65-71/decies of law 

no. 633/1941. Some other (specific) provisions with regard to user rights are 

provided by the General Regulations of SIAE, an administrative decree, 

recently modified on 6 th November 2009 (e.g. adjusting the amount of fee 

determination etc). 

It should be mentioned that the single cases of exceptions and 

restrictions to authors’ rights, while being listed, are often based on general 

clauses that, in practice, sometimes become broadened and at other times 

restricted, depending on the matter in hand: e.g. art. 71/quinquies on DRM or 

art. 71/sexies on private copy for personal use. 

Moreover, with regard to user rights regulation, in Italian copyright law, 

there is only one real general clause: this is art. 71/nonies, which provides that 

all the exceptions/limitations to author’s rights must be interpreted in a way 

as to not impinge upon the normal use of the work or other material, nor 

cause an unjustifiable prejudice to the interests of the rights holders. 

4. What is the role played by the “Three-step test” in national law 

in connection with the user rights pursuant to Question 3? 

In particular: 

Has the “Three-step-test” been explicitly implemented in 

national copyright law (legislation)?



The “Three-step-test” has been implemented in national law with some 

articles of law no. 633/1941. For instance: paragraph 4 of art. 71/sexies, article 

71/nonies, article 64/quater and sexies. 

However, regarding the application of the “Three-step-test” in national 

law, the most important provision is article 71/nonies, because this is a general 

rule not dedicated to a specific work category and not strictly related to the 

private copying regulation. 

Has it played a specific role in the determination of the legal 

standards (limitations and exceptions)? 

Is it directly applied by judicial practice? 

So, in statute procedure, it can definitely represent a general 

interpretative standard for limitations and exceptions of copyright, but, in law, 

it is principally connected to and put in practice with regard to new 

technologies. 

Thus, the judicial practical application of the “Three-step-test” is not 

particularly widespread outside the scope of private copying disputes. 

Is the “Declaration on a Balanced Interpretation of the “Three- 

step-test” in Copyright Law” well known and if so what role does it play 

(legislation, judicial practice, academic discussion etc.)? 

Similarly, the “Declaration on a Balanced Interpretation of the Three-step-test in 

Copyright Law” is used more often in academic discussion than in judicial 

practice. 

5. If categories of works are distinguished according to Question 

1, to what extent do the legal instruments in Question 2 a) to f) 

differentiate according to those categories?



� specific preconditions or thresholds allowing a work’s protection 

only when it surpasses a particular degree of creativity 

Italian copyright law does not make distinctions connected to creative 

preconditions of copyright. 

Specifically, referring to originality and novelty criterions, Italian courts 

always apply the same method of analysis with regard to all categories of 

works protected and, generally, a work only needs to show a small level of 

creativity in order to be protected by copyright (see, ex multis, Cass. no. 

425/2005, Cass. no. 5089/2004, Cass. no. 13937/1999 and Cass. no. 

908/1995). 

For more details, see text in answer to Question 6/a). 

� specific user rights, free of charge, granted by the law in favour of 

third parties, 

� specific user rights granted by the law in favour of third parties 

subject to the payment of a remuneration to the rights holder(s) 

Regarding users’ rights, whether free or by payment, Italian Copyright 

Law does not make distinctions. 

On the one hand, limitations and exceptions to copyright (art. 65- 

71/decies law no. 633/1941) do not differ according to different categories of 

works and, on the other, the statute clarifies specifically the content of the 

patrimonial rights in the general clauses of articles 12 et seq. of law 

no.633/1941. 

Moreover, the laws on “computer programs” (articles 64/bis-64/quater) 

and “databases” (articles 64/quinquies-64/sexies) specify which are the rights of 

economic utilisation belonging to the authors of these types of intellectual 

works. 

The purpose of these is to establish a balance between the authors’ 

rights and those of the users. In particular, with regard to computer programs,



the author can never prevent a legitimate user of the work to make a back-up 

copy of the program, when that copy is a valid necessity. 

Moreover, the author’s permission is not necessary to reproduce, 

transform, adapt or translate the program, when these operations are 

indispensable to achieving compatibility with other programs, also 

autonomously created programs. Similarly, for databases, the right holder’s 

permission is not necessary for the activities of permanent or temporary 

reproduction, total or partial, with whatever means and in whatever form, nor 

the translation, adaptation, of different arrangement or any other 

modification, carried out by a legitimate user of the database or a copy, if 

these activities are necessary to gain access to the content of the said database 

or for its regular use. 

These conditions relating to software and databases that establish a 

balance between the copyright holder and the user are mandatory and any 

other agreement to the contrary is invalid. 

In any case, both article 64/quater on computer programs and article 

64/sexies on databases explicitly provide that the rights granted to the user 

cannot be contrary to the rules fixed by the Berne Convention and, in 

particular, to the principles of the Three-step-test. 

� period of protection 

See the answer no. 1, par. “period of protection”. 

� rules on misuse 

------------------------------ 

6. Please cite and/or describe as completely as possible: 

a) the legal instruments and/or the relevant judicial practice 

concerning Question 2a)



Regarding the preconditions for the copyright protection of an 

intellectual work, the relevant law is article 2575 of the Italian Civil Code (the 

content being the same as article 1 of law no. 633/1941), according to which 

those works that may be subject to copyright protection are intellectual works 

having a creative character and appertaining to literature, music, the graphic 

arts, architecture, the theatre and cinematography, whatever their mode or 

form of expression. 

This law, besides having the aim of distinguishing the field of 

application of copyright law from that of patents, highlights the essential 

element that must exist in order that legal protection may arise: creativity 

(physically manifested in one of the macrocategories listed in the law). 

Jurisprudence and legal theory, over time, have clarified that the legal 

understanding of creativity has no connection with that of creation, i.e. 

originality and absolute novelty, but refers to the personal and singular 

expression of individuality within one of the categories listed in the examples 

in article 1 law no. 633/1941. This means that, for an intellectual work to 

receive legal protection, the existence of a creative act is sufficient, even if 

only minimal, capable of being manifested in the outside world (see, inter alios, 

Court of Cassation, 12 th March 2004, no. 5089). Thus, the creativity cannot be 

excluded only because the work consists of simple ideas or notions expressed 

by experienced people in the field (this principle was handed down, ex ceteris, 

by the Court of Cassation 2 nd December 1993 no. 6452, and has been 

constantly reasserted by successive pronouncements). 

Moreover, the fundamentals of legal theory and jurisprudence have 

always agreed upon the fact that a work can be the subject of specific 

protection only when it has been externalised, i.e. when the simple “originator” 

becomes “author”. The idea itself, therefore, cannot be protected: this is a 

principle that is constantly found in the decisions of judges (e.g. Court of 

Cassation, 13 th February 1987, no.1558).



It should be noted that in Italian courts and doctrinal debate on the 

categories of works protected by copyright there is no agreement as to 

whether the work categories enumerated in art. 1 law no. 633/1941 should be 

regarded stringently or as simply exemplificative. At present, however, it 

seems that the exemplificative character position is predominant, expressed, 

ex ceteris, by Cass. no. 908/1995, Cass. no. 11953/1993, Cass. no. 7397/1990. 

On the basis of this approach, Italian courts have sometimes identified 

many atypical works, not expressly mentioned in law no. 633/1941, protected 

by copyright. For example: 

� critical editions (cf. Cass. no. 559/2001 and Court of Appeal, 

Rome, 13 th March 1995); 

� restorations (cf. Trib. Bologna 23 rd December 1992); 

� cultural and sports events (cf. Pret. Rome 18 th November 1987: 

at present, this approach is minor); 

� advertising works (cf. Cass. no. 16919/2003 and Trib. Genoa 

27 th March 2000); 

� fantasy characters (cf. Cass. no. 810/1978, Trib. Milan 27 th May 

2005 and Trib. Rome 3 rd November 1981); 

� broadcasting formats (cf. Cass. no. 17903/2004, Court of 

Appeal, Turin, 8 th April 1960 and Trib. Rome 6 th July 1999); 

� maps (cf. Trib. Milan 30 th June 2004); 

� flower arrangements (cf. Trib. Milan 23 rd January 1967) and 

� political party symbols (cf. Trib. Rome 27 th April 1981). 

Lastly, it should be noted that a work does not have to be lawful in 

order to be protected by copyright (cf., inter alios, Cass. no. 908/1995, Trib. 

Milan 29 th January 1996 and Court of Appeal, Rome, 10 th October 1957). 

b) the provisions covered by Question 2c) to e)



c) where appropriate, the relevant judicial practice concerning 

Question 2c) to e) 

As already seen, with regard to users’ rights, Italian copyright law 

considers these as exceptions or limitations to the rights belonging to the 

author of the work, as can be understood immediately from the title of 

Chapter V of the law no. 633/1941, “Exceptions and Limitations”, that contains 

the majority of the provisions aimed at balancing the interests of the author 

and third parties. 

Jurisprudence has, also, always interpreted these provisions as 

absolutely exceptional, in so much as the courts consider matters of free 

utilisation of a work as special hypotheses, lying outside the remit of the sole 

right held by the author (among the many decisions that have asserted this 

principle, cf. Court of Appeal, Milan, 28 th May 1999). This means that, in 

respect of these provisions, in jurisprudential practice, a particularly restrictive 

interpretation is generally taken. 

Specifically, exceptions and limitations provided by Chapter V of the 

law no. 633/1941 are related to: 

� Articles of current interest of an economic, political or religious 

character, published in magazines or newspapers, may be freely 

reproduced in other magazines or newspapers, or may be broadcast, 

unless such reproduction is expressly reserved, provided mention is 

made of the magazine or newspaper from which they are taken, the 

date and the issue of the magazine or newspaper and, in the case of a 

signed article, the name of the author (art. 65, par. 1); 

� The reproduction or public communication of protected works or 

material used in 

current events is permitted as part of freedom of speech and provided



it has an informative aim, as long as, unless impossible, the source, 

including the name of the author, is reported (art 65, par. 2); 

� Speeches upon matters of political or administrative interest given in 

public assemblies or in any other public manner may be freely 

reproduced in magazines or newspapers, or broadcast, provided the 

source is mentioned, together with the name of the author and the date 

and place in which the speech was given (art. 66); 

� Works or portions of works may be reproduced for use in judicial or 

administrative proceedings, provided the source or the name of the 

author is mentioned (art. 67); 

� The reproduction of single works or of portions of works for the 

personal use of the reader, when made by hand or by a means of 

reproduction unsuitable for marketing or disseminating the work in 

public, shall be permitted (art. 68, par. 1); 

� Permission is given for the free photocopying of works found in public 

and scholastic libraries, public museums and public archives, 

undertaken by these said bodies for their own duties, without any direct 

or indirect economic or commercial gain (art. 68, par. 2); 

� While the reproduction of sheet music and musical parts remains 

prohibited, the reproduction for personal use of an intellectual work by 

means of a photocopier, xerox or similar machine, is permitted, up to a 

limit of 15% of each volume or book, excluding advertising (art. 68, 

par. 3); 

� Except for the legal responsibilities of internet service providers set out 

in e-commerce law, exemption from the right of reproduction is 

granted to acts of temporary non-commercial reproduction of a 

transitory or accessory nature and an integral and essential part of a 

technological procedure, carried out with the sole aim of allowing the



network transmission between third parties by use of an intermediary, 

or the legal use of an intellectual work or material. (art. 68/bis); 

� Loans from libraries and record libraries belonging to the State or to 

public authorities, made exclusively for purposes of cultural promotion 

and personal study, shall not require authorization by the right holder, 

to whom no remuneration shall be due, and shall exclusively concern: 

(a) printed copies of the works, except for music scores; (b) 

phonograms and videograms containing cinematographic or 

audiovisual works or sequences of moving images, with or without 

sound, provided that at least 18 months have elapsed since the first 

exercise of the right of distribution or, where the right of distribution 

has not been exercised, provided that at least 24 months have elapsed 

since the making of the said works and sequences of moving images 

(art. 69, par. 1); 

� The departments of the libraries and record libraries belonging to the 

State or to public authorities shall be permitted to reproduce a single 

copy of the phonograms and videograms containing cinematographic 

or audiovisual works or sequences of moving images, with or without 

sound, which are held by those same State libraries and record libraries 

and by the public authorities (art. 69, par. 2); 

� The abridgment, quotation or reproduction of fragments or parts of a 

work for the purpose of criticism or discussion, or for instructional 

purposes, shall be permitted within the limits justified for such 

purposes, provided such acts do not conflict with the commercial 

exploitation of the work; if they are carried out for educational or 

research purposes their use must be illustrative and not for commercial 

ends (art. 70, par. 1); 

� Permission is granted for the free publication on the internet, without 

restriction, of images and music of low or degraded quality, for



educational or scientific use and only if their is no commercial gain. A 

decree of the Ministry for Arts and Culture, approved by the Ministry 

of Education, the Ministry of Universities and Research and the 

competent Parliamentary commissions, limits the aforementioned 

educational and scientific use (art. 70, par. 1/bis); 

� Bands of the armed forces of the State may perform musical pieces or 

portions of musical works in public without payment of any fees in 

respect of copyright, provided the performance is not made for profit 

(art. 71); 

� Permission is granted for disabled people to reproduce, for their own 

personal use, protected works or material or their public transmission, 

as long as this reproduction is directly connected to their handicap, has 

no commercial ends and is limited to a use necessitated by the handicap 

(art. 71/bis); 

� Permission is granted for the communication or availability to the 

individual user, for research or private study, on dedicated terminals 

situated in public libraries, educational establishments, museums and 

archives, of the works and other material contained in their collection 

and not subject to binding transfer or licence agreements (art. 71/ter); 

� The reproduction of television broadcasts carried out by public 

hospitals and penitentiary institutions, solely for internal use, provided 

that the rights holder receives the fee laid out in a decree of the 

Ministry for Arts and Culture, is permitted (art. 71/quater); 

� According to art. 71/quinquies, technical protection measures must be 

removed, by public authority request, for public security or to allow 

the correct course of administrative, parliamentary or legal proceedings, 

as well as to allow the exercise of the exceptions provided by the law. 

� Lastly, articles 71/sexies-71/octies regulate private reproduction and 

personal use, which consists of “private reproduction of phonograms and



videograms on any equipment, carried out by an individual exclusively for personal 

use, provided there is no direct or indirect commercial gain”. 

As general “closing” regulation on the subject of exceptions and 

restrictions, art. 71/nonies provides that all the exceptions/limitations to 

author’s rights “must be interpreted in a way as to not impinge upon the normal use of 

the work or other material, nor cause an unjustifiable prejudice to the interests of the rights 

holders”. 

In addition to the exceptions and restrictions laid out in Chapter V of 

law no. 633/1941, further exceptions are regulated in other parts of the 

copyright law: 

� in particular, regarding databases, the following activities are not subject 

to the authorization of the rights holder: “access to or consultation of the 

database for purely teaching or scientific research purposes outside the framework of a 

company, as long as the source is mentioned and to the extent justified by the non- 

commercial purpose to be achieved; in the case of access or consultation, however, the 

permanent reproduction of all or a substantial part of the contents on another 

medium shall be subject to authorization by the owner of the rights” and “use of a 

database for public security purposes or for the purposes of an administrative or 

judicial procedure” (art. 64/sexies); 

� regarding the performance or recitation of works, which takes place on 

the premises of officially constituted assistance centers or institutions, 

or benevolent associations, on condition that they are intended solely 

for members and guests and that they are not carried out with gainful 

intent (art. 15/bis, par. 1); 

� with regard to the performance of radio works by the broadcasting 

body and the performances of radio works in public (art. 51 et seq.);



� regarding to the reproduction of photographs in anthologies intended 

for school use and, in general, in scientific or didactic works, and the 

reproduction of photographs published in newspapers or other 

periodicals, and which concern persons or current events or matters of 

any public interest (art. 91). 

d) the rules on abuse according to Question 2f) 

---------------- 

7. Have certain legal instruments according to question 2a) to f) 

only been introduced in the course of time or repealed in the course of 

time and if so why? 

First of all, we have to realise that the fundamental principles of Italian 

copyright law have not undergone many changes in the last sixty years and so 

lawyers (and especially judges) have had to make great interpretative efforts to 

attempt to bring this statute law into line with the new needs identified since 

its establishment. 

All of the numerous subsequent reforms have regarded particular 

situations or specific sectors (e.g. databases and software), but have not 

altered the essential features of the law established back in 1941 and reasserted 

in the Civil Code of 1942. 

� specific preconditions or thresholds allowing a work’s protection 

only if it surpasses a particular degree of creativity 

� period of protection 

With regard to specific preconditions providing protection to works or 

period of protection, there have been no relevant innovations or repeals in the 

course of time.



� limitations/exceptions 

However, major changes have been introduced regarding user rights, 

specially brought about new technology: e.g. the private copying right was 

introduced into the Italian system only in 1992 and digital rights management 

in 2003. Furthermore, in these years, Italian copyright law has been reformed 

principally because of requirement of international and supranational law (in 

particular, because of EU regulations and directives). 

Specifically, the laws concerning exceptions and limitations were 

modified by the effect of EU Directive no. 01/29 on copyright in the 

information society, implemented in the Italian system by d.lgs. 9 th April 2003, 

no. 68. Because of this statute, Chapter V of the law no. 633/1941 modified 

the name of “Fair Use (Utilizzazioni libere)” to the present one of “Exceptions 

and limitations (Eccezioni e limitazioni)” and it was split into three sections: 

� Reprography and further exceptions and limitations (art. 65- 

71/quinquies); 

� Private copy for personal use (art. 71/sexies-71/opties) and 

� General rules (art. 71/nonies-71/decies). 

In the end, d.l. no. 262/2006 and the subsequent implementation law 

no. 286/2006 affected articles 65 and 69 of law no. 633/1941, but only the 

reforms on the latter article were preserved at the moment of implementation. 

However, the exceptions and limitation rules currently in force are, on 

the one hand, consistent with the individualistic idea which inspires law no. 

633/1941 and, on the other hand, congruent with the continental Western 

legal tradition, which provides specific exceptions to exploitation rights. 

In conclusion, on this point, it should be highlighted that Italian 

lawmakers have always been very reluctant to reform the Copyright Law in 

any substantial way, in fact the present structure of law no. 633 of 1941



represents the progressive stratification of a series of additions over time that, 

in some way, have eroded its overall homogeneity. In any case, as stated in the 

introduction, an integral reform has been proposed for many years, with the 

repeal of law no. 633/1941 and its replacement with a more modern body of 

law (on this point, cf. the work of the Gambino Commission) 

8. Are there rules that restrict the scope of the user rights 

according to Question 2c) to e), in particular: 

• by laying down specific preconditions for the applicability of 

individual user rights, 

• by laying down abstract preconditions for the applicability of 

individual user rights? 

Regarding its scope, Italian copyright law provides both specific and 

abstract preconditions for the applicability of individual user rights. 

In particular, there are some exceptions to the copyright based on 

specific rules. For instance: photocopying of works is permitted only for 

personal use with a limit of 15% (with the exclusion of advertising pages); 

quotations from economic, political and religious news articles are generally 

permitted provided that the source, date and author’s name is cited; summary 

or quotations of other work categories is consented only for purposes of 

criticism, discussion or scientific research. 

Connected to these specific provisions, law no. 633/1941 contains a 

rather abstract regulation with regard to the private copying for personal use. 

These provisions were introduced in 1992 and substantially reformed in 2003 

(on the basis of the EU Directive 2001/29/CE). 

So, the Italian private copying provision creates an exception to the 

exclusive reproduction right belonging to authors, performers and producers 

and, because of this exception, a general principle is established: a consumer 

can legally reproduce music and videos for personal use only. Remuneration is



due to authors, artists and producers to repay them for the “private copying” 

benefit of the consumer and this remuneration is paid on recording 

equipment and blank discs. 

9. Are there rules to protect the existence of the user rights 

according to Question 2 c) to e)? 

� What kinds of binding rules are there to prohibit the undermining 

of statutory user rights? 

As stated, Italian copyright law does not recognise a general rule on fair 

use or on user rights, but the third party’s position is granted by exceptions 

and limitations to the copyright. 

So, there are no binding or specific rules to prohibit the undermining of 

statutory user rights, simply because the Italian system does not have statutory 

user rights. Only a number of provisions, mainly on the subject of software 

and databases, explicitly protect the user’s position, establishing that any 

possible agreements with the right holder to exclude or restrict that position 

are invalid (see, specifically, articles 64/quarter, par. 3, and 64/sexies, par. 3). 

In other words, in these cases, the protection guaranteed to the users is 

consolidated contractually by invalidatory measures, restricting the private 

autonomous relationship between the parties. 

� How is the relationship between technical protection 

measures/DRM (digital rights management) and statutory user 

rights regulated? 

Regarding the question of Digital Rights Management, the recent 

reform of the statutory law introduced in the Italian system a specific 

mechanism of balance of interests between right holders and third parties. 

Specifically, the right holders (ex art. 102/quater law no. 633/1941) can 

use technical protection measures to prohibit or to limit non authorized



copying or reproduction of the work. However, right holders are compelled to 

adopt suitable measures, also by specific agreement with a third party’s 

representative associations or trade unions, to enable the exercise of 

exceptions and limitations granted by law (specifically, provided by art. 55, 68, 

paragraphs 1 and 2, 69, par. 2, 70, par. 1, 71/bis and 71/quarter: for details see 

the answer no. 6). In that case, third parties must have come into lawful 

possession of works or protected material and, if provided, must pay a fair 

remuneration (e.g. the case of art. 71/quater). 

Moreover, article71/sexies establishes permission for private copying of 

sound and video recordings on any media support, done by a physical person 

for personal use only, without profit or (directly or indirectly) commercial 

purpose. To compensate the rights holders for this private copying, the 

following article (71/septies) states that a fee must be paid to them, determined 

as a proportion of the sales price of suitable equipment to record audio or 

video. This fee is fixed by a decree of the “Ministro per i beni e le attività culturali” 

and it is paid to SIAE by manufacturers or importers of the said equipment. 

� Is there a decision (explicit and implicit) on the extent to which 

o exclusivity rules to the benefit of the right holder, 

o access possibilities in favor of third parties 

should enjoy priority in the event of a doubt? 

Finally, we can point out that the Italian system does not recognise any 

(explicit or implicit) decision on the extent to which exclusivity rules to the 

benefit of the right holder or access possibilities in favour of third parties 

should enjoy priority in the event of doubt. 

Anyway, in the event of a doubt, generally exclusivity rules to the 

benefit of the right holder enjoy priority on the basis of the particularly 

restrictive interpretation of exceptions and limitations (see, inter alios, Cass. no.



2089/1997, Cass. no. 11143/1997, Trib. Rome 13 th October 2004, Trib. Milan 

13 th July 2000). 

10. a) How is the amount of the fee determined: 

• for cases covered by Question 2d) 

namely: 

� basically 

The Italian Copyright system does not provide a general rule about the 

determination of the amount of the fee. Generally, the articles of law no. 

633/1941 only set that a “remuneration” (e.g. articles 15/bis, 46, 56, 68) or a 

“fair remuneration” (e.g. articles 18/bis, 46/bis, 58, 70, 71/quater and quinquies) 

has to be paid to the right holder, without any concrete difference of 

treatment resulting from this distinct terminology. So, regarding this profile, 

the statute law (and its enforcement regulation) refers to specific agreement 

between SIAE and the third party’s representative associations or trade 

unions. Sometimes, to quantify the fee the copyright law directly refers to 

government measures (e.g. art. 15/bis, regarding the performance or recitation 

of works that take place on the premises of officially constituted assistance 

centers or institutions, or benevolent associations). 

. 

� in the event of a conflict? 

There are no significant differences between basic determination of the 

fee basically and the same in the event of conflict, not even regarding the 

amount. However, to determinate the fee in the event of conflict, generally, 

the Italian courts rely on technical advisers, who make use of the agreements 

settled by SIAE with third party associations. 

In any case, article 158, paragraph 2, of law no.633 of 1941 establishes 

that a judge can also settle the amount of damage caused by the infringement 

of copyright as a flat-rate based on the price of the rights that should have



been recognised, if the transgressor had asked the right holder’s permission to 

use the rights. 

For a different perspective, we also can underline that some provisions 

of statute law set specific administrative sanctions, consisting of a pecuniary 

penalty generally fixed as double the work’s value (cf. articles 71/septies and 

174/bis law no. 633/1941). 

• for cases covered by Question 2e) 

As noted, Italian Law does not provide any obligation to conclude a 

legally established contract. 

b) Are there particular procedural rules: 

• for cases covered by Question 2d), 

• for cases covered by Question 2e), 

• for cases covered by Question 2f), 

e.g. concerning 

• the distribution of the burden of proof, 

• provisional measures, 

• other aspects? 

Regarding procedural rules, it should be said that on the matter of 

copyright, Italian law does not provide any specific procedural rules, differing 

in this respect to common civil procedure (in particular, it does not provide 

any form of the inversion of the burden of proof). 

In any case, some particular rules, which usually do not change 

anything with regard to the Civil Procedure Code, are established in articles 

156-170 of law no.633/1941. 

And so, regarding pre-trial methods, it is interesting to note article 161 

of law no. 633/1941 which establishes that a judge may order an inventory, a 

report, an expert appraisal or the seizure of all matter constituting an



infringement of the right of utilization; also a judge can have recourse to 

preliminary enquiry proceedings. Moreover, when a party has furnished 

serious evidence from which it can be the validity of their claims can be 

deduced and have identified a document, evidence or information in the 

hands of the other party that confirm those deductions, the party can expect 

the judge to order their disclosure or request the information from the other 

party. In addition, the judge can order the other party to furnish evidence that 

identifies the individuals implicated in the production and distribution of the 

product or service that constitutes a breach of the present law (cf.. art. 156/bis 

law no. 633/1941). 

Furthermore, the author of a work which is the object of the right of 

utilization may, after the assignment of such right, intervene at any time, in 

order to protect his interests, in proceedings instituted by the assignee (cf. art. 

165 law no. 633/1941). 

In precautionary or provisional stages, the holder of the economic 

rights can request, also in the course of the proceedings, an injunction order 

against any activity that constitutes an infringement of those rights, applying 

the ordinary rules of precautionary proceedings (cf. article 163, par. 1, law no. 

633/1941). 

use: 

c) How is the fee paid to the rights holder by the party entitled to 


Generally, in every case, the fee is paid to the right holders through 

SIAE, which acts as an intermediary for the management of copyright. SIAE 

therefore grants licenses for the use of protected works, collects royalties and 

distributes them to right owners. It carries out its activities both in Italy 

(through its offices) and abroad (through the foreign societies of authors with 

which it has signed representation agreements).



In Italy this intermediary activity is reserved by law to SIAE on an 

exclusive basis. 

However, membership to SIAE is not mandatory, but a free choice, so 

the right holder can theoretically manage his relationships with the users and 

protect his rights directly. 

To manage his copyright, the author could also choose to become 

member of other foreign society of authors. 

For more details on SIAE, see the introduction. 

• for cases covered by Question 2e)? 

As noted, Italian Law does not provide any obligation to conclude a 

legally established contract. 

of fees: 

d) Does national law contain rules that regulate the distribution 


between the various categories of right holders? 

• If so which? 

• If not, how are such distributions determined? 

Regarding the division of the fees due from authors’ rights among the 

different categories of author, Italian law generally permits autonomously 

reached agreements between the different individuals involved (that can also 

be established through mediation by SIAE). 

The legal provisions, therefore, apply only in the absence of an 

autonomously reached agreement (see article 33 for dramatic-musical works 

and article 38 for collective works) 

In any case, regarding dramatic-musical works, according to article 34, 

the profits derived from economic utilization shall be shared in proportion to 

the values of the respective literary and musical contributions. In the operas,



the value of the musical part shall be regarded as being three-quarters of the 

total value of the work. In operettas, in melologues, in musical compositions 

with words, in dance and ballet music, the value of the two contributions shall 

be considered equal. 

While, for cinematographic works, the exercise of the rights of 

economic utilization of a work shall belong to the person who has organized 

the production of the said work (see art. 45, par. 1, law no. 633/1941) but for 

the authors of music, of musical compositions and of the words which 

accompany music shall be entitled to collect directly from persons publicly 

showing the work a separate payment in respect of such showing (cf. art. 46, 

par. 2, law no. 633/1941). 

Furthermore, the authors of the subject and of the scenario and the 

artistic director, in cases where they are not remunerated upon the basis of a 

percentage of the receipts derived from public showing of the 

cinematographic work, shall, in the absence of agreement to the contrary, are 

entitled to receive an additional payment when the receipts have attained a 

level to be fixed by contract with the producer. The form and amount of such 

payment shall be fixed by agreement between the categories of persons 

interested (see art. 46, par. 3, law no. 633/1941). 

Finally, article 46/bis provides that the authors of cinematographic and 

similar works are entitled to an appropriate fee paid by the broadcasting 

bodies for each utilisation of the said work by means of public broadcast by 

signal, cable or satellite. 

• for cases covered by Question 2e)? 

--------------------



11. Does national law contain general rules based on a 

differentiation between different categories of right holders, in 

particular: 

a) binding rules on contractual relationships between different 

categories of right holders (copyright contract)? 

Italian National Law contains many general rules that differentiate 

between different categories of right holders. 

Main rules: The main rule concerns the inability of the original right 

holder to transfer the non-economic rights, attributed by the copyright, to 

others. Any different agreement is absolutely void. 

With regard to the economic rights, there are general rules on user 

rights’ transmission (art. 107-114 of law no. 633/1941) and some specific 

provisions dedicated to the publishing contracts to regulate the relationship 

between author and publisher (art. 118-135 of law no. 633/1941). However, 

most of the rules legally fixed are contractually changeable. 

In short, the balance of the relationship between different right holders 

is entrusted to the contractual autonomy of the parties, while the law generally 

intervenes only in the absence of agreement between those different parties 

involved in the creation of a work. 

Some specific provisions (art. 115-117) of law no. 633/1941 are 

dedicated to the transmission of user rights after death. Particularly, the heirs 

have to appoint only one individual (not necessary one of them) as 

administrator of the derivative user rights. Failing this, within one year, the 

appointment is made by SIAE. However, the administrator has limited power 

and he has to obtain the consent of the majority of the heirs with regard to all 

new translation and adaptation of the work.



Specific rules: As already seen, Italian Copyright Law classifies 

intellectual works in different categories only in relation to particular 

previsions concerning economic utilisation (cf. Chapter IV of law no. 

633/1941). 

In particular, these laws regulate in a specific manner the patrimonial 

rights linked to certain work categories (listed in answer no. 1), as well as the 

methods of exercising these rights. 

In any case, the particular rules on “dramatic-musical works, musical 

compositions with words, choreographic works and pantomimes” , “collective 

works, magazines and newspapers”, and “cinematographic or audiovisual 

works” are intended, essentially, to regulate the relationship between the 

different right holders involved in the creation of a work, identifying those 

who can exercise the right of economic utilization. Besides this, the law 

clarifies specifically the content of the patrimonial rights in the general clauses 

of articles 12 et seq. of law no.633/1941. 

For example, article 45 establishes that, for cinematographic works, the 

exercise of the rights of economic utilization of a cinematographic work 

belongs to the person who has organized the production of the said work (i.e. 

the producer). Similarly, article 38 provides in the case of a collective work 

belong to the publisher of the work. 

It is important to point out that these provisions are generally only 

applied in absence of agreements between the parties involved in the creation 

of the work. 

The conditions on “works broadcast” (articles 51-60), however, are aimed 

at regulating the relationship between the right holder and the broadcasting 

body, establishing the rights to one (for example, that of the remuneration 

based upon the number of transmissions) and to the other (for example, that 

of the recording of the said work upon a record or metal tape or by some 

analogous process, for the purpose of its deferred broadcast, when this is



necessitated by considerations of time or technology, provided that after its 

use, the said recording is destroyed or rendered unusable). 

Regarding “works recorded on mechanical devices” (articles 61-64), there are 

provisions intended to specify who holds the rights to adapt and record the 

work upon phonograph records, cinematographic films, metal tapes, or any 

analogous material or mechanical contrivance for reproducing sounds or 

voices; to reproduce, to distribute, to lease, to lend as well as to authorize 

lease and loan of copies of the work adapted or recorded as above; to perform 

in public and to broadcast the work by means of the record or other 

mechanical contrivance indicated above. The assignment of the right of 

reproduction or of the right of commercial circulation does not, in the 

absence of agreement to the contrary, include assignment of the right of 

public performance or of broadcasting. It is interesting to note now these laws 

establish that any copy on a device for reproducing sounds or voices must 

bear the title of the work reproduced, the name of the author, the name of the 

performing or interpreting artist or and the date of production. 

c) other? 

Neighbouring rights holders: In Italian Copyright Law, a different 

category of rights holders is identified with the “neighbouring rights holders”. 

Neighbouring rights are those recognized by law not of the author of 

the work, but of those individuals connected to it (statute reference is Title II 

of the law 633/1941). 

The most important neighbouring rights are those recognising 

� phonographic producers (art. 72-78/bis), 

� producers of cinematographic or audio-visual works (art. 78/ter), 

� radio and television broadcasting companies (art. 79) and 

� performers (art. 80-85/bis).



Other neighbouring rights, with a much weaker protection than that 

reserved to copyright, are those recognising the authors (or publishers) in 

connection with those works that do not properly represent "intellectual works". 

This is the case of: 

� works published or communicated to the public for the first time 

after the author’s economic rights have expired (art. 85/ter), 

� critical or scientific editions of works of public domain (art. 

85/quater), 

� designs for stage sets (art. 86), 

� photographs (art. 87-92), 

� correspondence and portraits (art. 93-98), 

� engineering projects (art. 99-99/bis) and 

� title, headings and external appearance of works, and of articles 

and news (art. 100-102). 

As noted, neighbouring rights are characterized by a shorter period of 

protection than copyright: for details see answer to Question 2. 

Typical contracts: Finally, law no. 633/1941 provides two typical 

contracts, for which many specific rules, only some of which are binding, and 

some presumptions are established: 

� publishing contracts, based on a given number of editions or a 

given period of time (art. 118-135); 

� contracts for public performances (art. 136-141). 

E.g. it is provided that in the absence of a stipulation to the contrary, it 

shall be presumed that the rights transferred are exclusive (cf. art. 119, par. 2); 

in the absence of an express stipulation, transfer shall not extend to the 

exploitation rights in later modifications and transformations which may be 

made to the work, including adaptations to cinematography, broadcasting and 

recording upon mechanical devices (art. 119, par. 4); in the absence of an



agreement to the contrary, the transfer of one or more of the exploitation 

rights shall not imply the transfer of other rights which are not necessarily 

dependent on the right transferred, even if they are included in the same 

category of exclusive rights (art. 119, par. 4). 

With regard to binding rules, article 120 should be mentioned which 

establishes that if the contract relates to works not as yet created, the 

following rules shall apply: 

1. any contract concerning all the works or all the works of a 

certain category which the author may create, without limitation 

in time, shall be null and void; 

2. without prejudice to the provisions governing employment 

contracts and contracts for service, contracts which relate to the 

transfer of exclusive rights in respect of works to be created may 

not extend for a term in excess of 10 years; 

3. if the work to be created has been specified, but the term within 

which such work is to be delivered has not been set, the 

publisher may at any time request the judicial authority to set 

such term. If the term has been set, the judicial authority may 

extend it. 

Future rights which may be afforded by subsequent laws and which 

provide copyright protection of wider scope or longer duration may not be 

included in the transfer (art. 119, par. 2). 

12. Which of the following legal instruments or mechanisms are 

used in national law outside copyright in order to achieve a “balance of 

interests”? 

Outside copyright law, the principal instruments used to achieve a 

“balance” of interests are, surely, fundamental rights, competition law and 

contract law.



a) fundamental rights 

Regarding fundamental rights, the principal reference of the Italian 

Copyright Law is surely the right to information, constitutionally reduced to 

art. 21. In particular, numerous laws exist which restrict the rights of the 

author with the aim of promoting the diffusion of culture and knowledge, as 

well as, more generally, public information (e.g. art. 5 law no. 633/1941). On 

this point, see also Italian Constitutional Court’s decisions no. 108/1995 and 

38/1973). 

Moreover, we can also mention articles 9 on development of culture 

and progress of science and 33 Const. on freedom of art and science, 

sometimes used by Italian Constitutional Court as constitutional foundation 

of exceptions and limitations to copyright (cf. Const. Court no. 108/1995). 

Instead, Constitutional articles 36 on the right to a remuneration 

commensurate with the quantity and quality of work, 41 on freedom of 

private economic enterprise and art. 42 on private property right was used by 

Italian Constitutional Court (cf. see again Const. Court no. 108/1995). 

b) competition law 

In terms of competition law, it should be noted that unfair competition 

law and trademark law are used in order to achieve a balance of interests. 

As far as the law on unfair competition is concerned, copyright law is 

affected by the application of art. 2598, letter c), Italian Civil Code, which 

prohibits acts of competition which are not professionally correct. 

In particular, violations of copyright law are regarded as anti- 

competitive illegal acts, as for example in the case of articles 100 and 102 law 

no. 633/1941 (cf. Cass. no.5346/1993, Trib Milan 28 th September 1976 or 

Trib Genoa 19 th June 1993), but in general the courts judge that such conduct



can be classed as violating both the copyright law and the competition law 

(e.g. Trib. Turin 24 th November 1994 and Trib. Genoa 3 rd December 1997). 

Recently, the non-authorized reproduction of the pictures of a well- 

known artist was regarded as also an act of unfair competition, damaging the 

company that held the exclusive rights to the latest collection (Trib. Rome 21 

March 2002). 

With regard to trademark law, art. 14, lett. c), d.lgs. no. 30/2005 (so 

called “Industrial Property Code”) provides that the utilization as trademark of a 

sign covered by copyright is not lawful and, consequently, forbidden. 

c) contract law 

Regarding contract law, as already stated, there are a lot of provisions 

of law no. 633/1941 which are applied only in absence of a specific agreement 

between the interest parties. Consequently, one can see how Italian law tends 

to give a central role to the contract in defining the balance of interests of 

different parties involved in the utilisation of an intellectual work. 

So, in field of copyright general contract and obligation laws of Italian 

Civil Code and, specifically, art. 1321-1469 will be applied. 

Anyway, it should be noted that fundamental principles of contract and 

obligation law, like good faith principle (ex art. 1175 and 1374 c.c.), generally 

do not apply to copyright cases. 

d) general rule on misuse 

It is interesting to note that Italian Civil Code does not provide a 

general rule on misuse, but only a specific article in terms of property (art. 

833), which forbids acts exclusively directed to damage others (“atti emulativi”). 

Anyway, even if this provision is interpreted as a general clause of Italian 

private law system, it is not generally applied in the copyright field by courts 

or doctrine.



On good faith principle, see the precedent section on contract law. 

e) consumer protection law 

f) media law 

There are no relevant provisions dedicated to copyright in consumer 

protection and media law. These sectors of the law do not contain any specific 

regulations that directly affect copyright. 

g) other? 

Finally, outside copyright law, another important instrument used to 

achieve a “balance” of interests is patent law, currently regulated by d.lgs. 

30/2005 (so called “Industrial Property Code”). 

The distinction between copyright law and patent law, with great 

differences in terms of the period of protection, very short in the latter case, is 

intended to avoid goods useful for technology and industrial application being 

protected by private individuals for an excessive period of time. The relevant 

laws in this matter are articles 1 and 2 law no. 633/1941 and article 45 d.lgs 

30/2005.

JURISDICTION AND APPLICABLE LAW IN MATTERS OF 

INTELLECTUAL PROPERTY 

Index 

QUESTIONNAIRE 

NERINA BOSCHIERO * 

BENEDETTA UBERTAZZI ** 

I. Legal Sources ............................................................................................................. 3 

I.A Intellectual Property ................................................................................................. 3 

I.A.1 Treaties .................................................................................................................... 3 

I.A.2 Community legal instruments .............................................................................. 4 

I.A.3 Italian Substantive Rules ....................................................................................... 6 

I.A.4 Italian Procedural Rules ........................................................................................ 7 

I.B.1 International Jurisdiction ...................................................................................... 7 

I.B.2 International Jurisdiction in IP cases .................................................................. 9 

I.B.2.A General Jurisdiction ........................................................................................... 9 

I.B.2.B Special Jurisdiction ........................................................................................... 10 

I.B.2.B.1 Contracts ........................................................................................................ 10 

I.B.2.B.2 Infringements ................................................................................................. 11 

I.B.2.B.3 Multiple defendants ...................................................................................... 13 

I.B.2.C Exclusive Jurisdiction ...................................................................................... 16 

I.B.2.D Italian case-law ................................................................................................. 18 

I.C.1 Conflict of Laws/Choice-of-Law ...................................................................... 21 

I.C.2 Conflict of Laws/Choice-of-Law in relation to IP cases ............................... 22 

I.D.1 Recognition and enforcement of foreign judgments and interim 

measures ......................................................................................................................... 24 

I.D.2 Recognition and enforcement of foreign judgments and interim 

measures in relation to the IP field of law ................................................................. 25 

II. Peculiarities of the Italian PIL system concerning the IP sector 

.......................................................................................................................................... 28 

Section II: Hypothetical Case Studies ......................................................................... 30 

Case 1 General/Special Grounds of Jurisdiction ...................................................... 30 

____________________________ 

* Nerina Boschiero is Professor of International Law, International Commercial Law, University of Milan 

** Benedetta Ubertazzi LL.M. (Spain), Tenured Assistant Professor of International law, Faculty of Law, 

University of Macerata (Italy); Research Fellow, Von Humboldt Foundation Fellowship for Experienced 

Researchers.



Case 2 Subject Matter Jurisdiction .............................................................................. 32 

Case 3 Consolidation of Proceedings ......................................................................... 35 

Case 4 Choice of Court ................................................................................................ 36 

Case 5 Parallel Proceedings .......................................................................................... 38 

Case 6 Principle of Territoriality (Choice of Law) .................................................... 40 

Case 7 Infringement of Intellectual Property Rights ................................................ 41 

Case 8 Applicable Law to Initial Ownership ............................................................. 43 

Case 9 Applicable Law to The Transfer of Rights Agreements .............................. 46 

Case 10 Recognition and Enforcement of Foreign Judgements ............................. 47 

Case 11 Provisional Measures and Injuntions ........................................................... 50 

Case 12 Securities in Intellectual Property ................................................................. 52

Nerina Boschiero e Benedetta Ubertazzi 

Jurisdiction and Applicable Law in Matters of Intellectual Property 

I. Legal Sources 

I.A Intellectual Property 

I.A.1 Treaties 

a) Italy is a Member of the World Trade Organization 1 , as well as of 

the World Intellectual Property Organization (WIPO); for the list of 

treaties concerning IP rights in force in Italy, including the Treaties 

Administered by WIPO, plus UPOV and UN 2 

b) As far as the Italian Membership to the European Patent Convention 

and the related Protocols Administered by the European Patent Office 

is concerned, see the list provided for by the EPO website 3 

law 

Treaties on IP ratified by Italy: Italian ratification 

Paris Convention for the Protection 

of Industrial Property 

Madrid Agreement, Additional Act 

of Stockholm (1967) 

Law n° 424 of 28.4.1976 

(G.U. n. 160, suppl. ord., 

del 19.6.1976) 

Law n° 424 of 28.4.1976 


del 19.6.1976) 

Madrid Protocol Law n° 169 of 12.3.1996 

(G.U. n. 76, suppl. ord., del 

30 marzo 1996) 

TRIPS Law n° 747 of 29.12.1994 

(G.U. n. 7, suppl. ord., Vol. 

II, del 10 gennaio 1995) 

Patent Co-operation Treaty Law n° 260 of 26.5.1978 


1 See for all A. LUPONE, „Gli aspetti della proprietà intellettuale attinenti al commercio 

internazionale‟, in G. VENTURINI, ed., L‟organizzazione mondiale del commercio (Milan, Giuffré 2004) p. 

131; G. VENTURINI, „La disciplina degli scambi e la tutela della proprietà intellettuale a fronte delle 

nuove sfide della contraffazione‟, in N. BOSCHIERO and R. LUZZATTO, eds., I rapporti economici 

internazionali e l‟elevazione del loro regime giuridico. Soggetti, valori e strumenti, XII Convegno, Milano 8-9 giugno 

2007 (Naples, Editoriale Scientifica 2008) p.153; A. DI BLASE, „L‟attuazione delle norme 

internazionali sulla proprietà intellettuale nell‟ordinamento comunitario‟, Rivista di diritto internazionale 

privato e processuale (hereafter, RDIPP) (2008) p. 269 ff. 

2 See the provided for by the WTO website at 

http://www.wto.org/english/docs_e/legal_e/legal_e.htm agreements and by the WIPO website at 

http://www.wipo.int/treaties/en/summary.jsp. 

3 At http://www.epo.org/about-us/epo/member-states.html.



Convention on the Grant of 

European Patents 

Protocol on Jurisdiction and the 

Recognition of Decisions in respect 

of the Right to the Grant of a 

European Patent 

(Protocol on Recognition) 

Regulation implementing 

Convention for the Protection of 

Cultural Property for the Protection 

in the Event of Armed Conflict 

Geneva Act of the Hague 

Agreement concerning the 

International Registration of 

Industrial Designs 

del 7 giugno 1978) 

Law n° 260 of 26.5.1978 



Law n° 260 of 26.5.1978 



Law n° 279 of 7.2.1958; 

(G.U.n.87, 11 apr.1958) 

Law n° 37 of 25.1.1983 


del 12 novembre 1980) 

Berne Convention Law n° 399 of 20.6.1978 


del 2 agosto 1978) 

Universal Copyright Convention Law n° 306 of 16.5.1977 



Rome Convention Law n° 866 of 22.11.1973 

(G.U. n. 3 del 3 gennaio 

WIPO Performances and 

Phonograms Treaty 

1974) 

Law n° 68 of 9.4.2003 

(G.U. n. 87 del 14 aprile 

2003, Supplemento 

Ordinario n. 61) 

WIPO Copyright Treaty Law n° 68 of 9 aprile 2003 (G.U. 

n. 87 del 14 aprile 2003, 

Supplemento Ordinario n. 61) 

Patent Law Treaty Law n°224 of 29.11.2007 

(G.U. 3 dicembre 2007)



I.A.2 Community legal instruments 

a) As far as the Community legal instruments regarding industrial 

property rights are concerned, see the list provided for by the EU 

website 4 

b) As far as the Community legal instruments regarding intellectual 

property rights are concerned, see the list provided for by the EU 

website 5 . 

c) In primis, the following Regulations grant Community IP rights that 

are effective also for the Italian territory: 

1) Council Regulation (EC) No 2100/94 of 27 July 1994 on 

Community plant variety rights 6 ; 

2) Council Regulation (EC) No 6/2002 of 12 December 2001 on 

Community designs 7 ; 

3) Council Regulation (EC) No 207/2009 of 26 February 2009 on the 

Community trade mark (codified version) (Text with EEA relevance) 8 . 

Italy, also, implemented the following Community Directives related to 

IP rights: 

1. Council Directive 89/104/EEC of 21 December 1988 to 

approximate the laws of the Member States relating to trade marks 9 . 

Transposed by the Italian legislative decree 480/1992. 

2. Computer Program Directive 91/250, Council Directive 

91/250/EEC of 14 May 1991 on the legal protection of computer 

programs 10 . Transposed by the Italian legislative decree 518/1992. 

3. Rental and Lending Directive. Council Directive 92/100/EEC of 19 

November 1992 on rental right and lending right and on certain rights 

related to copyright in the field of intellectual property 11 . Transposed by 

the Italian legislative decree 685/94, and modified by the Directive 

2006/115/EC of the European Parliament and of the Council of 

12 December 2006 on rental right and lending right and on certain 

4 At http://ec.europa.eu/internal_market/indprop/index_en.htm 

5 At http://ec.europa.eu/internal_market/copyright/index_en.htm 

6 OJ 1994 L 227/1. 

7 OJ 2002 L 3/1. 

8 OJ 2009 L 78/1. 

9 OJ 1989 L 40/1. 

10 OJ 1991 L 122/42. 

11 OJ 1992 L 346/61.



rights related to copyright in the field of intellectual property (codified 

version) 12 , not yet transposed in Italy. 

4. Satellite and Cable Directive 93/83, Council Directive 93/83/EEC of 

27 September 1993 on the co-ordination of certain rules concerning 

copyright and rights related to copyright applicable to satellite 

broadcasting and cable retransmission 13 . Transposed by the Italian 

legislative decree 581/1996. 

5. Term Directive 93/98, Council Directive 93/98/EEC of 29 October 

1993 harmonizing the term of protection of copyright and certain 

related rights 14 . Transposed by the Italian law 52/96 and by the Italian 

legislative decree154/97, and modified by the Directive 2006/116/EC 

of the European Parliament and of the Council of 12 December 2006 

on the term of protection of copyright and certain related rights 

(codified version) 15 , not yet transposed in Italy. 

6. Database Directive 96/9, Directive 96/9/EC of the European 

Parliament and of the Council of 11 March 1996 on the legal protection 

of databases 16 , transposed by the Italian Legislative Decree 169/99. 

7. Directive 98/44/EC of the European Parliament and of the Council 

of 6 July 1998 on the legal protection of biotechnological inventions 17 , 

transposed by the Italian Legislative Decree 2006/3. 

8. Directive 2001/29/EC of the European Parliament and of the 

Council of 22 May 2001 on the harmonisation of certain aspects of 

copyright and related rights in the information society 18 , transposed by 

the Italian Legislative Decree 68/2003. 

9. Resale Right Directive 2001/84, Directive 2001/84/EC of the 

European Parliament and of the Council of 27 September 2001 on the 

resale right for the benefit of the author of an original work of art 19 . 

Transposed by the Italian legislative decree 118/2006. 

12 OJ 2006 L 376/28. 

13 OJ 1993 L 248/15. 

14 OJ 1993 L 290/9. 

15 OJ 2006 L 372/12. 

16 OJ 1996 L 77/20. 

17 OJ 1998 L 213/13. 

18 OJ 2001 L 167/10. 

19 OJ 2001 L 272/32.



10. Directive 2004/48/EC of the European Parliament and of the 

Council of 29 April 2004 on the Enforcement of Intellectual Property 

Rights (Text with EEA Relevance) 20 . Transposed by the Italian 

legislative decree 140/2006 

I.A.3 Italian Substantive Rules 

a) In Italy, industrial property issues are addressed in the Industrial 

Property Code 21 . Intellectual property issues, and also copyright and 

neighbouring rights, are addressed in the Italian Statute on Copyright 

and Neighbouring rights of 22.4.1941 n.633 22 . 

b) According to the Italian code of industrial property rights “the 

following IP rights are to be included in the notion of industrial 

property rights: trademarks and other distinctive signs, geographical 

indications and denominations, designs and registered designs, patents, 

utility models, topographies of semiconductor products, know how and 

plant variety”. Moreover, the Italian law on copyright and related rights 

obviously grants those 2 different kinds of IP rights. 

c) The Italian legal system encompasses also certain IP provisions 

relevant for IP cases in its civil code. Namely the followings (Arts. 

2584-2591 concerning “patent right for industrial inventions” :Arts. 

2592-2594 on “patent right for registered design and for design”; Arts. 

2569-2574 on “trademark right”; 

Arts. 2575-2583 “ on copyright” 

In the Italian Penal Code we also can find some relevant articles: Arts. 

473-475 on “the False Seals or Instruments or Signs of Authentication, 

Certification or Recognition”; Arts. 515 e 517 on “delicts against 

industry and commerce”. 

d) Moreover, certain Italian substantive statutes of a minor importance 

introduce provisions relating to IP rights. Namely the followings: 

� Statute n. 99 of 23.7.2009 encompassing “provisions on the 

development and internationalization of the enterprises, and in matter 

relating to energy”. 

20 OJ 2004 L 157/45. 

21 “Codice della proprietà industriale, a norma dell‟articolo 15 della legge 12 dicembre 2002, n. 273", 

D.lgs. 10 February 2005 n.30, in Gazzetta Ufficiale n. 52 of 4 March 2005 - Supplemento Ordinario n. 

28. 

22 Legge 22 April 1941 n. 633, “Protezione del diritto d‟autore e di altri diritti connessi al suo 

esercizio”, in G.U. n. 166 of 16 July 1941, consolidated version of 9 February 2008.



� The Bill 1141 of 2.7.2008 on “Provisions on the Economic 

Development, the Simplification, the Competitiveness, the Stabilization 

of the Fiscal and the Tax Equalization”. 

� The Economic Development Ministerial Decree 27.6.2008 on 

Anteriority Search with respect to Patents. 

� The Ministerial Decree on the Economic Development of 3.10.2007 

on “the delegation to the European Patent Office of the competence to 

conduct the anteriority search” on the patent application which have 

been submitted to the Italian Patent and Trademark Office. 

� The Italian Statute 6.4.2007 n. 46, which transpose into a Statute the 

Italian legislative Decree 15.2.2007, n. 10, that encompasses provisions 

necessary to implement the Italian obligations arising from community 

and international norms. This Statute encompasses also rules on 

copyright and registered designs and designs. 

� The Economic Development Ministerial Decree of 2.4.2007 on 

“determination of the Rights on Patents and Designs, ex Article 1 par. 

851 of the Statute of 27.12.2006 n. 296”. 

� Decree of the President of the Council of Ministers of 25.9.2006 on 

“determination of the Competent Central Authority for the Acceptance 

of the Rogatory of the European Patent Office”. 

� Ministerial Decree related to the Productive Activities of 10.4.2006 

on “Computerized Deposit of the Patents and Registered Designs 

Applications, and of the Registered Designs, Designs and Trademarks 

Registration”. 

� Statute 22.2.2006, n.178 on “conversion into Statute of the legislative 

decree 10.1.2006 n.3 on the implementation of the Directive 98/44 on 

the legal protection of biotechnological inventions. 

� Ministerial Decree n.171 of 9.5.2003 establishing a “Regulation on 

the new Forms for the Presentation and the Verbalization of the Patent, 

Registered Designs, Designs and National Trademark Applications”. 

� Decree of the President of the Council of Ministers of 3.1.1994, 

n. 244 establishing a “Regulation on the Public Special Register for the 

Computer Programs”. 

I.A.4 Italian Internal Procedural Rules 

e) In Italy 12 Specialised Courts to hear industrial and intellectual 

property disputes were instituted in 2003 through a specific Italian



statute 23 . Those courts are not competent to hear unfair competition 

cases, unless they are strictly related to IP rights 24 . 

I.B.1 International Jurisdiction 

In Italy international jurisdiction is governed in primis by the Community 

Instruments, since Community Law prevails over the internal statutes. 

Hence, international grounds of jurisdiction are primarily ruled by the 

Council Regulation (EC) No. 44/2001 on jurisdiction and the 

recognition and enforcement of judgments in civil and commercial 

matters 25 , (hereinafter Brussels I Regulation), from the 1.3.2002 (and 

from the 1.7.2007 with respect to litigations related to Denmark). This 

Regulation converted into a Community legal instrument the Brussels 

Convention of 1968 2001 on jurisdiction and the recognition and 

enforcement of judgments in civil and commercial matters, which 

remains still into force for every issue not covered by the Brussels I 

Regulation but still governed by the Convention itself. The Brussels I 

Regulation applies where the defendant is domiciled in an EU Member 

23 D. lgs. 27 June 2003, n. 168, “Istituzione di Sezioni specializzate in materia di proprietà industriale 

ed intellettuale presso tribunali e corti d‟appello, a norma dell‟articolo 16 della legge 12 dicembre 

2002, n. 273”. 

24 See Trib. Venezia, Sezione IP, 6 dicembre 2005, in Annali italiani di diritto d‟autore, della cultura e dello 

spettacolo (hereafter, AIDA) (2006), 1107/1, p. 544; Trib. Venezia, Sezione IP, ordinanza 9 luglio 

2004, in AIDA (2005) 1041/1, p. 528 

25 OJ 2001 L 12/1. The Regulation 44/2001 transformed in a Community legal instrument 

(communitarized) the Brussels convention on jurisdiction and recognition and enforcement of 

judgments in civil and commercial matters of 27.9.1968. See recently the Report from the 

Commission to the European Parliament, the Council and the European Economic and Social 

Committee on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the 

recognition and enforcement of judgments in civil and commercial matters of 21 April 2009 

[COM(2009) 174 def. at 

http://eurlex.europa.eu/Result.do?T1=V5&T2=2009&T3=174&RechType=RECH_naturel&Submi 

t=Cercare] and the “Green Paper on the review of Council Regulation (EC) No 44/2001 on 

jurisdiction and the recognition and enforcement of judgments in civil and commercial matters” 

[COM(2009) 175 def. at http://eurlex.europa.eu/Result.do?T1=V5&T2=2009&T3=175- 

&RechType=RECH_naturel&Submit=Cercare]. On the Brussels Convention see: F. POCAR, La 

convenzione di Bruxelles sulla giurisdizione e l‟esecuzione delle sentenze, 3rd ed., (Milan, Giuffrè 1995) passim; L. 

MARI, Il diritto processuale civile della convenzione di Bruxelles, I, Sistema della competenza, (Padova, Cedem 

1999) passim. On the Brussels I Regulation see: F. SALERNO, Giurisdizione ed efficacia delle decisioni nel 

regolamento (CE) n. 44/2001 (Padova, Cedam 2003) passim; S.M. CARBONE, M. FRIGO, and L. 

FUMAGALLI, eds., Diritto processuale civile e commerciale comunitario (Milan, Giuffrè, 2004) passim; T. 

RAUSCHER, ed., Europäisches Zivilprozessrecht (Munich, Sellier 2004) passim; A. LAYTON and H. 

MERCER, eds., European Civil Practice, 2nd edn. (London, Thomson, 2004) passim; J. KROPHOLLER, 

Europäisches Zivilprozessrecht, 8th edn. (Frankfurt am Main, Recht und Wirtschaft GmbH, 2005) passim; 

R. GEIMER and A. SCHÜTZE, eds., Europäisches Zivilverfahrensrecht, 2nd edn. (Munich, Beck, 2004) 

passim; U. MAGNUS and P. MANKOWSKI (eds.), Brussels I Regulation, (Munich, Sellier, 2007) passim; B. 

HESS, T. PFEIFFER and P. SCHLOSSER, eds., The Brussels I Regulation 44/2001. Application and Enforcement 

in the EU. The Heidelberg Report on the Application of Regulation Brussels I in 25 Member States (Study 

JLS/C4/2005/03), (Munich, Beck 2008) passim; P. SCHLOSSER, EU-Zivilprozessrecht, 3 edn. (Munich, 

Beck 2009) passim; A. BONOMI, Il sistema della competenza giurisdizionale nel Regolamento “Bruxelles I”, in ID., 

ed., Diritto internazionale privato e cooperazione giudiziaria in materia civile (Turin, Giappichelli 2009) p. 55 ff.



State (Article 2, general jurisdiction forum), or where an exclusive 

jurisdiction forum exists in a EU Member State (Article 22), or where 

the parties have chosen a competent Court of a EU Member State 

(Arts. 23 and 24). Moreover, where the defendant is domiciled inside the 

EU territory, the Brussels I Regulation establishes other special 

jurisdiction rules in its Article 5, that allows the plaintiff to seize a 

different court then the defendant domicile one. Thus, Article 6 of the 

Brussels I Regulation provides rules for the consolidation of 

proceedings rules. Finally, Arts. 27-30 encompass specific provisions for 

the declining of the Italian jurisdiction where another court is hearing a 

case, the case integrates a lis pendens or a related actions hypothesis. 

Where the Brussels I Regulation does not apply, then Italian law applies. 

Particularly, the Title II of the Italian Statute of 1995 on Private and 

Procedural International Law 26 (hereinafter: Italian PIL Statute) 

determines the jurisdiction criteria with respect to international cases 

(Artt.3-12). Article 3 adopts as a general ground of jurisdiction the 

domicile of the defendant (like the Brussels I Regulation does). Then, for the 

cases not directly encompassed by the Brussels I Regulation, Article 3 of 

the Italian PIL Statute explicitly recalls certain sections of the Brussels 

Convention of 1968, and as such renders those jurisdictional criteria 

applicable albeit in cases falling outside the scope of the same 

Convention (i.e., defendant not domiciled in the EU). As far as it is of 

interest here, among the provisions of the Brussels Convention always 

applicable in Italy are the afore mentioned Articles 2, 5 and 6. The 

Italian Supreme Court recently interpreted the references to the Brussels 

Convention as not extended to the Brussels I Regulation, and therefore 

as concerning only the recalled norms of the Brussels Convention 27 . 

Finally, where the Brussels I Regulation or the Brussels Convention are 

not applicable, either directly or by way of the reference to the latter 

made by Article 3 of the Italian PIL Statute, the other norms on 

jurisdiction of this last Statute are applicable, namely Articles 1-12 

governing, inter alia, choice of court by the parties, lis pendens and related 

actions. 

With respect to the cases not regulated by the Brussels I Regulation or 

by the Brussels Convention, directly or indirectly, the Italian internal 

provisions apply. Thus, Article 3 of the Italian PIL Statute establishes 

that the Italian jurisdiction exists also where the defendant has a legal 

representative authorized to represent him in Italian proceedings, and 

26 Legge 31 May 1995, n. 218, “Riforma del sistema italiano di diritto internazionale privato”, in 

Suppl. ord. GU Serie gen. 128 del 3 June 1995. 

27 See Cass. s.u. 21 October 2009, n.22239, in Guida al diritto, 2, 71 (2010).



where other internal jurisdiction criteria confer the competence to 

Italian courts. 

I.B.2 International Jurisdiction in IP cases 

I.B.2.A General Jurisdiction 

The Brussels I Regulation attributes general jurisdiction to the courts of 

the defendant‟s domicile 28 . This notion led to occasional 

misunderstandings in common law countries, the internal legislation of 

which adopted a notion of domicile that differs from that used under 

the Brussels I Regulation 29 . 

Therefore, the CLIP principles 30 attribute general jurisdiction to the 

courts of the defendant‟s habitual residence (Art. 2:102.1), rather than to 

that of his/her domicile as does the Brussels I Regulation. Analogously, 

the ALI principles 31 referring to “personal” rather than general 

28 On the notion of habitual residence and the differences between this notion and the one of 

domicile, with particular regard to IP law see T. KONO, „Intellectual Property Rights, Conflict of 

Laws and International Jurisdiction: Applicability of ALI Principles in Japan‟, 30 Brook. J. Int‟l L. 

(2004-2005) p. 870. 

29 See C.HEINZE, „Jurisdiction under the CLIP Principles‟, in J. BASEDOW, T. KONO and A. 

METZGER, eds., Intellectual Property in the Global Arena: Jurisdiction, Applicable Law, and Recognition of 

Judgments in Europe, Japan and the US (Tübingen, Mohr Siebeck 2010). 

30 See EUROPEAN MAX PLANCK GROUP ON CONFLICT OF LAWS IN INTELLECTUAL PROPERTY, 

Principles for Conflict of Laws in Intellectual Property, Third Preliminary Draft, (1 September 2010), in 

http://www.cl-ip.eu/. On the CLIP Principles see P. DE MIGUEL ASENSIO, „Propuestas para la 

mejora de la protección transfronteriza de la propiedad intelectual: los trabajos del ALI y del Grupo 

Europeo del Max Planck‟, Revista Española de Derecho Internacional (hereafter, REDI) (2007) p. 873; A. 

KUR and B. UBERTAZZI , „The ALI Principles and the CLIP Project – a Comparison‟, in S. BARIATTI, 

ed., Litigating Intellectual Property Rights Disputes Cross-Border (Padova, Cedam 2010) passim; A. METZGER, 

„Jurisdiction in Cases Concerning Intellectual Property Infringements on the Internet, Brussels-I- 

Regulation, ALI-Principles and Max Planck Proposals‟, in S. LEIBLE and A. OHLY, eds., Intellectual 

Property and Private International Law (Tübingen, Mohr Siebeck 2009) p. 251; E. TREPPOZ, „Un autre 

regard: étude compare des Principes de l‟American Law Institute et du Max Planck Institut sur le 

droit international privé et la propriété intellectuelle‟, in C. NOURISSAT and E. TREPPOZ, eds., Droit 

international privé et propriété intellectuelle: un nouveau cadre pour de nouvelles stratégies, forthcoming.; P. DE 

MIGUEL ASENSIO, Recognition and Enforcement of Judgments in Intellectual Property Litigation: The CLIP 

Principles, in J. BASEDOW, T. KONO and A. METZGER, loc. cit. n. 29, at p. 9; C. HEINZE, loc. cit. n. 29, 

at p. 9; A. METZGER, Applicable Law under the CLIP-Principles: A Pragmatic Revaluation of Territoriality, 

ibid. 

31 See AMERICAN LAW INSTITUTE, Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and 

Judgments in Transnational Disputes, 14 May 2007, St. Paul, 2008. On the ALI Principles see T. KONO, 

loc. cit. n. 28, at p. 8; C. KESSEDJIAN, „Current International Development in Choice of Law: An 

Analysis of the ALI Draft‟, in J. BASEDOW, J. DREXL, A. KUR and A. METZGER (eds.), Intellectual 

Property in the Conflict of Laws, (Tübingen, Mohr Siebeck 2005) p. 35; A. METZGER, „Transfer of Rights, 

License Agreements, and Conflict of Laws: Remarks on the Rome Convention of 1980 and the 

Current ALI Draft‟, in J. BASEDOW, J. DREXL, A. KUR and A. METZGER, loc. cit. n. 31, at p. 9, p. 61 

ff.; F. DESSEMONTET, „A European Point of View on the ALI Principles- Intellectual Property: 

Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes‟, Brook. J. 

Int‟l L. (2005) p. 859; R. DREYFUSS, The ALI Principles on Transnational Intellectual Property Disputes: Why 

Invite Conflicts?, ibidem, p. 836; P. DE MIGUEL ASENSIO, loc. cit. n. 30, at p. 9, p. 873 ff.; F. BECKSTEIN,



jurisdiction, attribute it to the courts of the defendant‟s residence, and 

localize a natural person as resident in the place where he/she is 

habitually found or maintains significant professional or personal 

connections. Therefore, according to the official Comment to those 

Principles, without using the term habitual residence they “incorporate 

its same notion” 32 

I.B.2.B Special Jurisdiction 

I.B.2.B.1 Contracts 

As for Article 5.1 of the Brussels I Regulation 33 , the ECJ with the Falco 

decision 34 established that “the second indent of Article 5(1)(b) of 

Council Regulation (EC) No 44/2001 of 22 December 2000 on 

jurisdiction and enforcement of judgments in civil and commercial 

matters, is to be interpreted to the effect that a contract under which the 

owner of an intellectual property right grants its contractual partner the 

right to use that right in return for remuneration is not a contract for the 

provision of services within the meaning of that provision”. Also, the 

ECJ maintained that “in order to determine, under Article 5(1)(a) of 

Regulation No 44/2001, the court having jurisdiction over an 

„The American Law Institute Project on Intellectual Property: Principles Governing Jurisdiction, 

Choice of Law, and Judgments in Transnational Disputes. Summary of the Presentation given by 

Rochelle Dreyfuss‟, in S. LEIBLE and A. OHLY, loc. cit. n. 30, at p. 9, p. 22; F. DESSEMONTET, „Los 

principios del American Law Institute: propiedad intelectual y litigios transfronterizos‟, InDret (2009) 

p. 20; J.C. GINSBURG, „Jurisdiction and Recognition of Judgments under the ALI Principles‟, in S. 

BARIATTI, loc. cit. n. 30, at p. 9; M. VICENTE, „La propriété intellectuelle en droit international privé‟, 

335 RC (2008) p. 424; A. METZGER, loc. cit. n. 30, at p. 9; A. KUR and B. UBERTAZZI, loc. cit. n. 30, 

at p. 9, passim; E. TREPPOZ, loc. cit. n. 30, at p. 9 

32 See the Official Comment to the ALI Principles, in AMERICAN LAW INSTITUTE, Intellectual Property 

cit., 35. 

33 According to which “a person domiciled in a Member State may, in another Member State, be 

sued: 1. (a) in matters relating to a contract, in the courts for the place of performance of the 

obligation in question; /(b) for the purpose of this provision and unless otherwise agreed, the place 

of performance of the obligation in question shall be: / - in the case of the sale of goods, the place in 

a Member State where, under the contract, the goods were delivered or should have been delivered, / 

- in the case of the provision of services, the place in a Member State where, under the contract, the 

services were provided or should have been provided, / (c) if subparagraph (b) does not apply then 

subparagraph (a) applies”. 

34 ECJ decision of 23 April 2009, case C-533/07, Falco, accessible at 

http://curia.europa.eu/it/index/htm. On the Falco case see P. DE MIGUEL, „Nota a Falco‟, ready to 

be published in REDI (2009); B. UBERTAZZI, „Licence Agreements related to IP rights and the EC 

Regulation on jurisdiction‟, 40 International Review of Intellectual Property and Competition Law (hereafter, 

IIC) (2009) p. 912 ff., and ivi further references; N. BOSCHIERO, „I contratti relativi alla proprietà 

intellettuale alla luce della nuova disciplina comunitaria di conflitto. Analisi critica e comparatistica‟, in 

ID., eds., La nuova disciplina comunitaria della legge applicabile ai contratti (Roma I) (Turin, Giappichelli 2009) 

p. 520 ff.; E. DE GÖTZEN, „La licenza d‟uso di diritti di proprietà intellettuale nel regolamento 

Bruxelles I: il caso Falco‟, RDIPP (2010) p. 383 ff.; P. FRANZINA, „Struttura e funzionamento del foro 

europeo della materia contrattuale alla luce delle sentenze Car Trim e Wood Floor‟, RDIPP (2010) p. 

656 ff.



application for remuneration owed pursuant to a contract under which 

the owner of an intellectual property right grants to its contractual 

partner the right to use that right, reference must continue to be made 

to the principles which result from the case-law of the Court of Justice 

on Article 5(1) of the Convention of 27 September 1968 on jurisdiction 

and the enforcement of judgments in civil and commercial matters, as 

amended by the Convention of 26 May 1989 on the Accession of the 

Kingdom of Spain and the Portuguese Republic”. 

The main problem with this Article is that of related actions. Hence, as 

happened in the Falco case, licensors generally bring against their 

licensees both actions for the infringement of licensed IP rights and 

actions in contract for the royalties payments provided for by the licence 

agreements. Such actions generally have in common the parties, the IP 

rights involved and the territory where they are exercised; as such, they 

are closely connected. Indeed, the issue regarding “related actions” is 

governed by Article 6 of the Regulation 44/2001, which does not 

consider indeed the objective connection between proceedings a 

criterion sufficient enough to extend the jurisdiction existing for one of 

these proceedings also to the other one strictly connected to the former. 

By contrast, the CLIP principles deal with the issue of related actions, 

which is of utmost importance in IP law. Thus, according to its Art. 

2:201.3, in disputes concerned with infringement claims arising out of a 

contractual relationship between the parties, a court having jurisdiction 

with regard to the contract shall also be competent to deal with the 

infringement action, “without prejudice to Article 2:202”. 

I.B.2.B.2 Infringements 

In relation to infringements Article 5.3 of the Brussels Regulation 

establishes that “a person domiciled in a Member State may, in another 

Member State, be sued: / […] 3. in matters relating to tort, delict or 

quasi-delict, in the courts for the place where the harmful event 

occurred or may occur”. 

In relation to this rule the ECJ rendered many different interpretative 

judgments, one of the more relevant of which is the ECJ Shevill decision 

35 . According to this decision the expression of Article 5.3 of the 

Brussels I Regulation „place where the harmful event occurred‟ shall be 

interpreted in the sense that “the victim of a libel by a newspaper article 

35 ECJ, Case C-68/93 Shevill [1995] ECR I-415. On the Shevill decision see for all A. GARDELLA, 

„Diffamazione a mezzo stampa e Convenzione di Bruxelles del 27 settembre 1968‟, Rivista Diritto 

Internazionale Privato e Processuale (hereafter, Riv. dir. int. priv. proc.) (1997) p. 657.



distributed in several Contracting States may bring an action for 

damages against the publisher either before the courts of the 

Contracting State of the place where the publisher of the defamatory 

publication is established, which have jurisdiction to award damages for 

all the harm caused by the defamation, or before the courts of each 

Contracting State in which the publication was distributed and where 

the victim claims to have suffered injury to his reputation, which have 

jurisdiction to rule solely in respect of the harm caused in the State of 

the court seized”. Indeed, it seems that the Shevill jurisprudence does 

not apply to IP rights cases by reason of their territorial nature 36 . 

Also, the ECJ has recently been asked to interpret Article 5.3 with 

particular regard to the infringements occurred through the internet. 

Thus, in the case Olivier Martinez, Robert Martinez v Société MGN Limited 37 

the Tribunal de grande instance de Paris referred to the ECJ the 

following question “must Article 2 and Article 5(3) of Council 

Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and 

the recognition and enforcement of judgments in civil and commercial 

matters be interpreted to mean that a court or tribunal of a Member 

State has jurisdiction to hear an action brought in respect on an 

infringement of personal rights allegedly committed by the placing online 

of information and/or photographs on an Internet site published in 

another Member State by a company domiciled in that second State - or 

in a third Member State, but in any event in a State other than the first 

Member State - : On the sole condition that that Internet site can be 

accessed from the first Member State, / On the sole condition that there 

is between the harmful act and the territory of the first Member State a 

link which is sufficient, substantial or significant and, in that case, 

whether that link can be created by:/ - the number of hits on the page at 

issue made from the first Member State, as an absolute figure or as a 

proportion of all hits on that page, /- the residence, or nationality, of 

the person who complains of the infringement of his personal rights or 

more generally of the persons concerned, / - the language in which the 

information at issue is broadcast or any other factor which may 

demonstrate the site publisher‟s intention to address specifically the 

public of the first Member State, /- the place where the events described 

occurred and/or where the photographic images put on-line were taken, 

/- other criteria?” 

By answering to this question and also by eventually clarifying in the 

near future whether the Shevill decision applies to IP rights, the ECJ will 

hopefully pose a market impact rule, such as the one envisaged by the 

36 See N. BOSCHIERO, „Il principio di territorialità in materia di proprietà intellettuale: conflitti di leggi 

e giurisdizione‟, AIDA (2007) p. 81. 

37 ECJ, Case C-278/09, in www.curia.eu.int.



CLIP principles according to which an IP right infringement occurs 

only when one of two other requirements is met. Firstly, according to 

Art. 2:202.2.a), an infringement occurs in the state where the defendant 

has substantially acted or has taken substantial preparatory action to 

initiate or further the infringement. Secondly, according to Art. 

2:202.2.b), an infringement occurs in the state where the activity by 

which the right is claimed to be infringed has substantial effect within, 

or is directed to, the territory of that state. This last requirement results 

from a more “effects-oriented approach”, and encompasses three 

different elements, of which the first is the “substantiality of action or 

effect”, that “serves as a filter to sort our minor infraction” of IP rights 

38 , while the second and third are the requirements of “commercial 

effect” and “directed to”, respectively. Moreover, the CLIP Principles 

also deal with the extent of jurisdiction over infringement claims, and 

establish that a court whose jurisdiction is based on Article 2:202 shall 

have jurisdiction in respect of infringements that occur or may occur 

within the territory of the state in which such court is situated (Art. 

2:203.1) 39 . Indeed, this restriction does not apply to those cases coming 

within the scope of Art. 2:203.2, which gives a single court seised under 

Art. 2:202 the competence to adjudicate all infringements actions 

without territorial limitation, provided that four requirements, out of 

which two are alternative, are met. The first requirement is that the IP 

rights infringement be carried out through ubiquitous media, such as the 

Internet (so-called ubiquitous infringements 40 ). Secondly, the defendant 

must direct almost all his activities to states other than that in which 

he/she is resident. Thirdly, substantial activities in furtherance of the 

infringement in its entirety must have been carried out within the 

territory of the country in which the court is situated. Fourthly, and in 

the alternative to the third requirement, the harm caused by the 

infringement in the state where the court is situated must be substantial 

in relation to the infringement when considered in its entirety. 

Analogously, the ALI principles deal with infringement jurisdiction and 

the extent of jurisdiction over infringement claims in a single norm, 

being Art. 204. The issue of infringement jurisdiction and that of the 

extension thereof are addressed separately according to the scheme 

38 As such C. HEINZE, loc. cit. n. 29, at p. 9, p. 10. 

39 This rule is probably grounded on the above-mentioned Shevill jurisprudence. See: J.J.FAWCETT 

and P. TORREMANS, Intellectual Property in Private International Law (Oxford, OUP Oxford University 

Press 1998) p.161; P. DE MIGUEL ASENSIO, ‘Cross-Border Adjudication of Intellectual Property 

Rights and Competition between Jurisdictions‟, in AIDA (2007) p. 123; A. NUYTS, „Suing At the 

Place of Infringement: the Application of Article 5(3) of Regulation 44/2001 to IP Matters and 

Internet Disputes‟, in ID., ed., International Litigation in Intellectual Property and Information Technology, the 

Netherlands (The Hague, Kluwer Law International 2008) p. 117; C. HEINZE, loc. cit. n. 29, at p. 9, p. 

10. 

40 See A. KUR and B. UBERTAZZI, loc. cit. n. 30, at p. 9, section I.



adopted by the CLIP principles and will be addressed separately, 

therefore, by this manuscript also. Moreover, Art. 204.1 establishes that 

the plaintiff may bring his/her claim in the court of the state in which 

the defendant has substantially acted, or taken substantial preparatory 

acts, to initiate or to further an alleged infringement. Then, Art. 204.2 

states that the plaintiff may utilise the court of any state in which the 

defendant‟s activities give rise to an infringement claim, if such 

defendant directed 41 those activities to that state. Art. 204.3 provides 

also that the plaintiff may utilise the courts of any state in which the 

defendant‟s activities give rise to an infringement claim where three 

requirements are met: firstly, the defendant cannot be sued in a WTO- 

Member State according to the ALI principles 42 ; secondly, the 

defendant must reasonably be seen as having directed those activities to 

that state; thirdly, the defendant must solicit or maintain contacts, 

business or an audience in the state of the seised court on a regular basis, 

whether or not such activity initiates or furthers the infringing activity. 

As far as the extent of the infringement jurisdiction is concerned, Art. 

204.1, second sentence, establishes that where the court is situated in the 

place where the defendant has substantially acted, or taken substantial 

preparatory acts, to initiate or to further an alleged infringement, the 

court‟s jurisdiction extends to claims respecting all injuries arising out of 

the conduct, wherever the injuries occur. Art. 204.2, second sentence, 

specifies that where the court seised is located in the state where the 

defendant‟s activities directed to such state give rise to an infringement 

claim, such court‟s jurisdiction is limited to those injuries occurring in 

that state. Finally, Art. 204.3, second sentence establishes that the court 

seised by virtue of Art. 204.3 first sentence is competent to adjudicate 

claims respecting injuries arising out of conduct occurring outside the 

forum state, but related to the infringement within that state, wherever 

those injuries arise. 

I.B.2.B.3 Multiple defendants 

As for Article 6.1 of the Brussels Convention, now Article 6.1 of the 

Brussels I Regulation 43 , the ECJ with the Roche decision 44 established 

41 On this requirement see R. DREYFUSS, op. cit. n. 31, at p. 9, p. 831. 

42 On this requirement see the Official Comment to Art. 204, according to which “the principles use 

membership in a WTO State as a proxy for procedural and substantive fairness”. On this 

requirement see also R. DREYFUSS, op. cit. n. 31, at p. 9, p. 836; F. DESSEMONTET, loc. cit. n. 31, at p. 

9, p. 9. 

43 According to Art. 6 of the Brussels I Regulation “a person domiciled in a Member State may also 

be sued: / 1. where he is one of a number of defendants, in the courts for the place where any one of



that it “must be interpreted as meaning that it does not apply in 

European patent infringement proceedings involving a number of 

companies established in various Contracting States in respect of acts 

committed in one or more of those States even where those companies, 

which belong to the same group, may have acted in an identical or 

similar manner in accordance with a common policy elaborated by one 

of them”. In other words, with this decision the ECJ maintained that 

there is no risk of irreconcilable judgments resulting from separate 

proceedings, and therefore that they could not be connected ex 

Article 6.1, where the IP rights at stake pertain to different states and 

therefore are different (even though they are granted by the same 

organism and are related to the same invention, like it happens with the 

European patent), and also where the multiple defendants are different 

companies (even though they belong to the same group or may have 

acted in an identical or similar manner in accordance with a common 

policy elaborated by one of them). The Roche decision is highly 

criticised once again due to its “excess of territoriality” 45 especially in 

the light of the results of a recent study undertaken by professor 

Harhoff of the University of Munich for the European Union 

Commission, delivered on 26.2.2009, and entitled “Economic-Cost 

Benefit Analysis of a Unified and Integrated European Patent Litigation 

System” 46 . According to this study “between 146 and 311” patent 

them is domiciled, provided the claims are so closely connected that it is expedient to hear and 

determine them together to avoid the risk of irreconcilable judgments resulting from separate 

proceedings; / 2. as a third party in an action on a warranty or guarantee or in any other third party 

proceedings, in the court seised of the original proceedings, unless these were instituted solely with 

the object of removing him from the jurisdiction of the court which would be competent in his case; 

/ 3. on a counter-claim arising from the same contract or facts on which the original claim was based, 

in the court in which the original claim is pending; / 4. in matters relating to a contract, if the action 

may be combined with an action against the same defendant in matters relating to rights in rem in 

immovable property, in the court of the Member State in which the property is situated”. On this 

rule see for all F.M. BUONAIUTI, Litispendenza e connessione internazionale. Strumenti di coordinamento tra 

giurisdizioni statali in materia civil (Naples, Jovene 2008) passim. 

44 ECJ, Case C-539/03 Roche v. Primus [2006] ECR I-6535. On this case see A. KUR, „A Farewell to 

Cross-Border Injunctions? The ECJ Decisions GAT v. LuK and Roche Nederland v. Primus and 

Goldenberg‟, IIC (2006) p. 844; C. GONZÁLEZ BEILFUSS, „Nulidad e infracción de patentes en 

Europa después de GAT y ROCHE‟, AEDipr (2006) p. 269; M. WILDERSPIN, „La compétence 

juridictionnelle en matière de litiges concernant la violation des droits de propriété intellectuelle. Les 

arrêts de la Cour de justice dans les affaires C-4/03, GAT c. Luk et C-539/03, Roche Nederland c. 

Primus ET Goldberg‟, Revue Critique de Droit International Privé (hereafter, RCDIP) (2006) p. 777; CLIP, 

Exclusive Juridiction and Cross Border IP (Patent) Infringement. Suggestions for Amendment of the Brussels I 

Regulation, in www-cl-ip.eu; L. LUNDSTEDT, „In the Wake of GAT/LuK and Roche/Primus‟, in NIR 

(2007) p. 123; M. NORRGÅRD, „A Spider Without a Web? Multiple Defendants in IP Litigation‟, in S. 

LEIBLE and A. OHLY, loc. cit. n. 30, p. 9, p. 217; L. FUMAGALLI, „Litigating Intellectual Property 

Rights Disputes Cross-Border: Jurisdiction and Recognition of Judgments under the Brussels I 

Regulation‟, in S. BARIATTI, loc. cit. n. 30, at p. 9, p. 15; A. KUR and B. UBERTAZZI, loc. cit. n. 30, at 

p. 9, section 1 and subsection 2.c). 

45 See the critical comments of the doctrine quoted at the previous footnotes. 

46 Available at http://ec.europa.eu/internal_market/indprop/patent/index_en.htm. On this study 

see for all T.T. JAEGER, R. HILTY, J. DREXL and H. ULLRICH, „Comments of the Max Planck



“infringement cases are being duplicated annually in EU Member States. 

By 2013, this number is likely to increase to between 202 and 431 

duplicated cases. Total private savings from having access to a unified 

patent” proceeding “would span the interval between EUR 148 and 289 

million” 47 . Moreover, the costs of the duplication of proceedings are 

even higher where the systems involved are such as the UK one. Hence, 

“the average cost of pursuing through to first instance trial a patent 

infringement action in the UK is approximately €500,000, and this is 

about three times the cost of an infringement action in most other 

European jurisdictions” 48 . Furthermore, the duplication of proceedings 

in IPR cases can lead to divergent outcomes, as occurred in a recent 

series of cases: “in the Epilady case (EP0101656), infringement suits of 

the patent-holder were successful in Belgium, Germany, Italy and the 

Netherlands, but not successful in Austria, France and the United 

Kingdom. In Securities System Inc. vs. ECB (EP0455750), the German and 

Dutch Courts upheld the patent, while it was revoked in France and the 

UK. In the Senseo case (EP0404717), initial divergent rulings have been 

issued by Belgian and Dutch Courts, but several other domestic cases 

are still pending. In the Monsanto case (EP0546090), the District Court 

of The Hague gave an interim judgment on March 19th, 2008 and 

referred the case to the European Court of Justice for an interpretation 

of Directive 98/44/EC of 6.7.1998 on the legal protection of 

biotechnological inventions; several parallel cases are pending in 

different Member States” 49 . Moreover, another case that exemplifies the 

risk of divergent outcomes due to the duplication of proceedings is the 

European Central Bank (hereinafter ECB) v. Document Security 

Systems Incorporated (hereinafter DSS) case 50 . To properly describe 

this case it is relevant to refer to the wording of the decision rendered 

by the UK Court of Appeal on March 19th, 2008. The controversy 

according to the Court was that a US Company “contends that” its 

“patent […] and its sister patents are infringed by euro banknotes. 

Imaginatively but overoptimistically it tried to bring central proceedings 

before the Court of First Instance of the EU. On 5th September 2007, 

Institute for Intellectual Property, Competition and Tax Law on the 2009 Commission Proposal for 

the Establishment of a Unified Patent Judiciary‟, 40 IIC (2009) p. 818. 

47 This study refers explicitly to the Unified Patent Court (ECPC), on which see infra. However, its 

results are extensible to any other unitary enforcement system of national and foreign patents. 

48 See for all D. KNIGHT, „The Reducing Cost of European and UK Patent Litigation?‟, Patent World 

(2008) and available at http://www.ffw.com/publications/all/articles/reducing-cost-patent.aspx. 

49 See footnote 20 of the study “Economic-Cost Benefit Analysis of a Unified and Integrated 

European Patent Litigation System”, Available at 

http://ec.europa.eu/internal_market/indprop/patent/index_en.htm. On this study see for all T.T. 

JAEGER, R. HILTY, J. DREXL and H. ULLRICH, loc. cit. n. 46, at p. 13, p. 818. 

50 See England and Wales Court of Appeal (Civil Division), European Central Bank v Document 

Security Systems Incorporated [2008] EWCA Civ 192 (19 March 2008), available at 

http://www.bailii.org/ew/cases/EWCA/Civ/2008/192.html



that Court held, not surprisingly, it had no jurisdiction to hear patent 

infringement proceedings even against an EU institution, case T-295/05. 

Meanwhile the ECB had started revocation proceedings in France, 

Germany, the Netherlands, Spain, Italy, Belgium, Luxembourg and 

Austria. These are ongoing” 51 . Prior to the UK Court of Appeals 

decision, a UK Court of First Instance held the patent void. Likewise, 

“in Germany and France there have been first instance decisions. None 

of the other proceedings have got that far” 52 . The German Federal 

Patent Court (Bundespatentgericht) did not agree with the UK decision 

and “held the patent valid. Then, on 9th January 2008, the French Court 

(le Tribunal de Grande Instance de Paris) agreed with” the UK first 

instance decision “and disagreed with the German Court. On 12 March 

2008 the Dutch Court agreed with the German Court. In sporting terms, 

the score is currently 2-2 to the ECB at first instance level. All this is 

deeply regrettable. It illustrates yet again the need for a one-stop patent 

shop (with a ground floor department for first instance and a first floor 

department for second instance) for those who have Europe-wide 

businesses" 53 . Finally, the UK Court of Appeal dismissed the plaintiff‟s 

appeal and confirmed the first instance decision holding the patent void. 

In this situation first the Green Paper on the review of Council 

Regulation (EC) No 44/2001 recognizes the need to amend the Brussels 

I Regulation in the sense of allowing a consolidation of proceedings 

with respect to the European patents infringements perpetrated by 

companies belonging to the same group 54 . 

Second, the 2009 Council presidency “Proposal for the Establishment 

of a Unified Patent Judiciary” (ECPC) 55 , which “enjoys the support of 

the Commission, which is now seeking to receive a mandate to open 

51 Ibid., [3]. 

52 Ibid., [4]. 

53 Ibid., [3-5]. 

54 Green paper, [4]. 

55 See the Council of the European Union, Proposal for a Council Regulation on the European 

Union patent (Text with EEA relevance), Brussels, 27 November 2009, Interinstitutional File 

2000/0177 (CNS), available at http://register.consilium.europa.eu/pdf/en/09/st16/st16113ad01.en09.pdf. 

See also the Council of the European Union, Brussels, 23 March 2009, 7928/09 PI 23 

COUR 29, European Community Patents Court Draft Agreement, available at 

http://documents.epo.org/projects/babylon/eponet.nsf/0/3C42A8FB1B30CA1AC125770D0030A 

B65/$File/draft_agreement_European_and_Community_Patents_Court_en.pdf. See for all T.T. 

JAEGER, R. HILTY, J. DREXL and H. ULLRICH, loc. cit. n. 46, at p. 13, p. 817 ff., and there further 

references. For an historical perspective see C. WADLOW, „Strasbourg, the Forgotten Patent 

Convention, and the Origins of the European Patent Jurisdiction‟, 41 IIC (2010) p. 123 ff. See also 

the Opinion 1/09, Request for an opinion submitted by the Council of the European Union 

pursuant to Article 300(6) EC, in OJ 12.9.2009, C-220, 15; and the “statement of position by the 

Advocates General” presented on 2 nd July 2010 but published over 6 weeks after the date of 2 July 

given on the document in French (the official language of the document) on a patent lawyer‟s blog. 

See the informal English translation of this document at 

http://www.eplawpatentblog.com/eplaw/2010/08/eu-opinion-on-the-compatibility-of-theproposed-european-patent-court-system-with-european-treaty-la.html



negotiations with States parties to the European Patent Convention 

(EPC) over the Draft Agreement, and to obtain an opinion from the 

ECJ under Art. 300.6 EC on the compatibility with the EC Treaty” 56 , 

aims at establishing a unitary and specialised patent judiciary, “a new 

international organization” (ECPC), with a central division and several 

regional and local divisions, which will be designated by Member States 

as their national exclusively competent court to deal with European 

patents and respectively future Community patents validity and 

infringement issues. Particularly, the ECPC central division will be 

competent to address the actions for revocations, i.e., the validity claims 

principally raised, the validity issues incidentally raised, and all the claims 

for which are competent the local and regional divisions. By contrast, 

the ECPC regional or local divisions will be competent to address the 

infringement claims (when localized in the State where the defendant is 

domiciled or alternatively in the State where the infringement occurs), 

including provisional measures, damages etc., and the revocation 

counter claims, i.e., validity issues incidentally raised. Thus, in the 

majority of the cases the ECPC will grant unitary litigation with 

significant positive effects as compared to the status quo of fragmented 

litigation. 

Third, (i) The CLIP principles establish, at Art. 2:206, that a plaintiff 

may sue before the court of the state in which a defendant has his 

habitual residence a number of other defendants non-resident in such 

state, provided that three requirements are satisfied, of which two are in 

the alternative 57 . Firstly, the claims must be so closely connected that it 

be expedient to hear and determine them together, so as to avoid the 

risk of irreconcilable judgments resulting from separate proceedings (Art. 

2:206.1, first sentence). Secondly, Article 2:206.2, first sentence, requires 

that the court seised be that of the habitual residence of the defendant 

who conducted the infringing activity (e.g., the court of the state in 

which is situated the parent company that coordinated the activity of the 

subsidiary companies, as in the ECJ Roche case). Thirdly, and as an 

alternative to the second requirement, Article 2:206.2, second sentence, 

requires that the court seised be situated in the state of habitual 

residence of the defendant, that is otherwise that most closely connected 

with the dispute when viewed as a whole (e.g., the court of the state 

where the defendant who produces counterfeit products, which are then 

distributed to several other defendants that purchase them in many 

other jurisdictions, has his habitual residence). Thus, with such 

56 As such T.T. JAEGER , R. HILTY, J. DREXL and H. ULLRICH, loc. cit. n. 46, at p. 13, p. 818 ff. 

57 See M. NORRGÅRD, „Provisional Measures and Multiple Defendants in the MPI Proposal‟, in J. 

DREXL and A. KUR, Intellectual Property and Private International Law – Heading for the Future (Oxford, 

Hart 2005) p. 45.



requirements the CLIP principles attempt to determine the jurisdiction 

of the court of the state in which is situated the centre of the parallel 

infringing activities. (ii) Finally, Art. 2:206.1, second sentence, defines 

the risk of irreconcilable judgments within the meaning of Art. 2:206.1, 

first sentence, by establishing that such a risk exists where the disputes 

in question involve “essentially the same legal and factual situation”. 

The ALI principles establish a “more extensive provision” 58 applicable 

in the case of multiple defendants, at Art. 206. (i) This Article imposes 

three requirements, of which two are in the alternative, in order to be 

able to consolidate in the court of the residence of one defendant 

infringement actions involving multiple defendants. Firstly, Article 206 

of the ALI principles establishes that the claims against the resident 

defendant and the non-resident defendants must be so closely 

connected that they should rightly be adjudicated together in order to 

avoid the risk of inconsistent judgments. Secondly, according to Art. 

206 it is possible to consolidate infringement actions where there is a 

substantial, direct, and foreseeable connection between the forum‟s IP 

rights involved and each non-resident defendant. Thirdly, and in the 

alternative to the second requirement, according to Art. 206 it is 

possible to consolidate infringement actions where, as between the 

forum and the states in which the defendants to be added are resident, 

there is no forum more closely related to the dispute when viewed as a 

whole. (ii) Art. 206.2 of the ALI principles then defines the risk of 

irreconcilable judgments, within the meaning of Art. 206.1, and for this 

purpose establish three different criteria. Firstly, there is deemed to be a 

risk of irreconcilable judgments where the ensuing judgments would 

impose redundant liability. Secondly, there is deemed to be a risk of 

irreconcilable judgments where the ensuing judgment “would conflict in 

that the judgment in one case would undermine the judgment in another 

case”. Thirdly, there is deemed to be a risk of irreconcilable judgments 

where the ensuing judgment “would conflict in that a party would not 

be able to conform its behaviour to both judgments”. (iii) Article 206.3 

establishes then that actions may not be consolidated where a defendant 

invokes an exclusive choice-of-jurisdiction agreement entered into by 

the plaintiff, which agreement conforms with the ALI principles 

provision on prorogation of jurisdiction (Art. 202). (iv) Finally, Article 

206.4 of the ALI principles sets forth an objective limitation on the 

scope of the court seised on the basis of such Article, according to 

which such court has jurisdiction with respect to injuries, wherever 

occurring, that arise out of those activities that allegedly gave rise to the 

risk of inconsistent judgments. 

58 As such C. HEINZE, loc. cit. n. 29, at p. 9.

I.B.2.C Exclusive Jurisdiction 



The specific provisions of the Brussels I Regulation covering IP cases, 

will be listed in the second part of this report related to the practical 

cases. Indeed, the following remarks will address the specific decisions 

of the ECJ on the Brussels I Regulation‟s rules that were rendered in IP 

cases. So, Article 22.4 of the Brussels I Regulation (according to which 

“the following courts shall have exclusive jurisdiction, regardless of 

domicile: / 4. in proceedings concerned with the registration or validity 

of patents, trade marks, designs, or other similar rights required to be 

deposited or registered, the courts of the Member State in which the 

deposit or registration has been applied for, has taken place or is under 

the terms of a Community instrument or an international convention 

deemed to have taken place. / Without prejudice to the jurisdiction of 

the European Patent Office under the Convention on the Grant of 

European Patents, signed at Munich on 5 October 1973, the courts of 

each Member State shall have exclusive jurisdiction, regardless of 

domicile, in proceedings concerned with the registration or validity of 

any European patent granted for that State”) was interpreted by the ECJ 

in two different occasions. Firstly, with the Judgment Duijnstee 59 the 

ECJ maintained that Article 16.4 of the Brussels Convention, now 

Article 22.4 of the Regulation 44/2001, applies only to proceedings 

“concerned with the registration or validity of patents”, but does not 

apply to proceedings related to IP rights infringement or to the 

determination of what party is entitled to an existing IP right on the 

basis of a previous legal relationship between the parties. Subsequently, 

the ECJ with the GAT decision 60 maintained that Article 16.4 of the 

59 ECJ, Case C-288/82 Duijnstee [1983] available at www.curia.eu.int. 

60 ECJ, Case C-4/03 GAT v. LuK [2006] ECR I-6509. On this decision see the critics of A. KUR, loc. 

cit. n. 44, at p. 13, p. 844; C. GONZÁLEZ BEILFUSS, loc. cit. n. 44, at p. 13, p. 269; M. WILDERSPIN, 

loc. cit. n. 44, at p. 13, p. 777; L. LUNDSTEDT, loc. cit. n. 44, at p. 13, p. 123; M.E. ANCEL, „L‟arrêt 

GAT: une occasion manquée pour la défense de la propriété industrielle en Europe‟, ERA Forum 

(2007) p. 27; P. TORREMANS, „The Widening Reach of Exclusive Jurisdiction: Where Can You 

Litigate IP Rights after GAT?‟, in A. NUYTS, ed., International Litigation in Intellectual Property and 

Information Techonology, (The Hague, Kluwer Law International 2008) p. 61; L. FUMAGALLI, „Litigating 

Intellectual Property Rights Disputes Cross-Border: Jurisdiction and Recognition of Judgments under 

the Brussels I Regulation‟, in S. BARIATTI, loc. cit. n. 30, at p. 9, p.15; A. KUR and B. UBERTAZZI, loc. 

cit. n. 30, at p. 9, section 1 and subsection 2.c). In favour of the GAT decision see the speech on Gli 

standards di tutela dell‟UE a confronto con gli standard internazionali. Proprietà intellettuale, given at the Italian 

Society of International Law XV Congress in Bologna, 10-11 June, 2010, by M. FRIGO, available in 

streaming at http://streaming.cineca.it/SIDI- 

XV/play.php?dim_get=320&player_get=flash&flusso_get=flash, according to which the GAT 

decision should be positively evaluated since it grants the principle of legal certainty in conformity 

with Article 6 of the ECHR. Indeed, this Article militates against exclusive jurisdiction provisions.



Brussels Convention, now 22.4 of the Regulation 44/2001, “is to be 

interpreted as meaning that the rule of exclusive jurisdiction laid down 

therein concerns all proceedings relating to the registration or validity of 

a patent, irrespective of whether the issue is raised by way of an action 

or a plea in objection”. The ECJ GAT decision, then, is in line with a 

series of judgments of different countries of the word that adopt very 

broad exclusive jurisdiction rules. Among those decisions we can 

remember here the Gallo South Africa Supreme Court of Appeal 

decision of 3.9.2010, the Voda v. Cordis Corp US Court of Appeals for 

the Federal Circuit judgment of 1.2.2007 61 , the Lucasfilm v. Ainsworth 

UK Court of Appeal decision of 16.12.2009 62 . These decisions are 

highly criticised also in Italy since they due to their “excess of 

territoriality”. 63 

In this frame the CLIP and Ali Principles abandoned the exclusive 

jurisdiction provisions with respect to IPRs infringement issues and to 

IPRs validity claims raised as a defense in infringements proceedings. 

Hence, The CLIP principles establish exclusive jurisdiction criteria for 

certain disputes concerning registered IP rights 64 . Thus, in disputes 

having as their object a judgment relating to the grant, registration, 

validity, abandonment or revocation of a patent, a mark, an industrial 

design or any other IP right protected on the basis of registration, Art. 

2:401.1 grants exclusive jurisdiction to the courts in the state where the 

IP right was registered or is deemed to have been registered. In any case, 

Art. 2:401.2, first sentence, does not adopt the model of the ECJ 

GAT/LuK decision, and clarifies that Art. 2:401.1 does not apply where 

the validity or registration of the registered IP right is challenged in a 

See B. UBERTAZZI, „Intellectual Property Rights, Exclusive (Subject-Matter) Jurisdiction and Public 

International Law‟, forthcoming in IIC. 

61 Voda v Cordis Corp., 476 F.3d 887 (Fed. Cir. 2007). See M. SCHAUWECKER, „Zur internationalen 

Zuständigkeit bei Patentverletzungsklagen. Der Fall Voda v. Cordis im Lichte europäischer und 

internationaler Entwicklungen‟, Gewerblicher Rechtsschutz und Urheberrecht (hereafter, GRUR Int.) 

(2008) p. 96 ff.; J.C. GINSBURG, „Jurisdiction and Recognition of Judgments under the ALI 

Principles‟, in S. BARIATTI, loc. cit. n. 30, at p. 9, at footnote 2; See also B. UBERTAZZI, loc. cit. n. 60, 

at p. 17. 

62 [2009] EWCA Civ 1328. The judgment of the court (Rix, Jacob and Patten LJ) was delivered by 

Jacob LJ. On this judgment see A. DICKINSON, „The Force be with the EU? Infringements of US 

Copyright in the English Courts‟, LMCLQ (2010) p. 181 ff.. On the Court of first instance decision 

of this same case see R.C. AUSTIN, „The Concept of “Justiciability” in Foreign Copyright 

Infringement Cases‟, IIC (2009) p. 393 ff. See also B. UBERTAZZI, loc. cit. n. 60, at p. 17. 

63 See particularly N. BOSCHIERO, loc. cit. n. 36, at p. 11, p. 94; N. BOSCHIERO, loc. cit. n. 65, at p. 

18, passim. On the territoriality principle and on the reasons against its interpretation as a conflict of 

jurisdiction provision in relation to IPRs see also for all J. DREXL, Internationales Immateralgüterrecht, in 

Münchener Kommentar zum Bürgerlichen Gesetzbuch, 11, 4 Auflage (Munich, Verlag Beck 2006) p. 

819; G.B. DINWOODIE, „Developing a Private International Intellectual Property Law: the Demise of 

Territoriality‟, 51 WM. & Mary L.Rev. (2009) p. 711 ff. and there further references. 

64 The first Draft of the CLIP principles of April 2009 established an exclusive jurisdiction also for 

unregistered IP rights. On the exclusive jurisdiction of unregistered IP rights see recently R.C. 

AUSTIN, „The Concept of “Justiciability” in Foreign Copyright Infringement Cases‟, IIC (2009) p. 

393.



context other than by principal claim or counterclaim. Indeed, Art. 

2:401.2, second sentence, establishes that decisions arising from such 

disputes do not affect the validity or registration of the IP rights 

questioned as against third parties. 

The ALI principles do not adopt the model of the US Court of Appeal 

for the Federal Circuit Voda v. Cordis decision, and rather permit the 

competent court to adjudicate claims arising under foreign laws (Art. 

211.1). Indeed, those principles limit the effectiveness of a court 

decision holding invalid the registered rights granted under the law of 

another state. Hence, Art. 211.2 of the ALI principles states that such a 

decision shall be effective only between parties, but does not affect the 

validity or registration of the IP rights in question as against third parties. 

The same result is reached under Arts.213.2 and 213.3 of the ALI 

principles, concerning proceedings to obtain a declaration of invalidity 

of registered IP rights. 

I.B.2.D Italian case-law 

As for the Italian case law related to the rules just recalled, it is relevant 

to remember the following decisions. 

(i) The Italian case-law generally accepts jurisdiction in cases concerned 

solely with the issue of infringement of foreign IP rights 65 . 

(ii) In Italy whenever a court declines its jurisdiction by reason of 

Article 22.4 with respect to validity issues related to foreign IP rights, 

then it also declines its jurisdiction with respect to claim of non 

infringement related to the same foreign IP rights, raised as a defence 66 . 

(iii) The court of first instance of Milan, with a decision of August the 

6.8.2008 67 applied Article 22.4 to a copyright infringement case. Indeed, 

it is pacific that Article 22.4 does not concern either copyright either IP 

rights infringements claims 68 . 

(iv) Before the ECJ‟s GAT decision the Italian jurisprudence did not 

apply Article 16.4 of the Brussels Convention, now Article 22.4 of the 

Brussels Regulation, to validity issues raised as a defense or incidentally 

65 See Trib. Roma, 1 February 2000, in AIDA (2000), n.716, p.870. On this decision see N. 

BOSCHIERO, „Art. 54 (Beni immateriali)‟, Commentario del codice civil, Scialoja-Branca (Bologna, 

Zanichelli 2010) fortchoming. 

66 See Trib. Milano, 10 December 2007, in Giurisprudenza annotate di diritto industriale (hereafter, 

GADI) (2007) n.5177, p. 1103; Trib. Milano, 24 January 2004, cit., p.788; Trib. Milano 23 May 2002, 

in GADI 2002, n.4437, p. 912. On these decisions see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

67 Ready to be published in AIDA (2009), on which see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

68 See all other Italian judgements on 22.4 hereafter mentioned and for all N. BOSCHIERO, loc. cit. n. 

36, at p. 11, p. 94.



and related to foreign registered IP rights 69 . By contrast, after the ECJ‟s 

GAT judgment the Italian courts apply Article 22.4 of the Brussels I 

Regulation with respect to validity issues raised incidentally or as a 

defense in relation to foreign IP rights 70 . 

(v) The court of first instance of Milan 71 , confirmed that Article 16.4 of 

the Brussels Convention (now Article 22.4 of the Brussels I Regulation) 

attributes the exclusive jurisdiction to Italian courts when registration 

and/or validity issues of an Italian trademark is concerned, albeit the 

trademark is internationally registered according to the Madrid 

Arrangement. 

(vi) The court of second instance of Milan 72 excluded the application of 

Article 16.4 of the Brussels Convention (now Article 22.4 of the 

Brussels I Regulation), therefore accepting its jurisdiction, in a case 

where the question at stake was related not to the registration and 

validity of a specific trademark, but to a right of prior use of the same 

trademark. Hence, according to the court of Appeal this issue is not 

covered by Article 16.4. 

(vii) The Court of first instance of Milan 73 stated that the notion of 

domicile as a general jurisdiction criterion must be interpreted according 

to the Italian substantive law: therefore, the defendant is domiciled in 

Italy only where he/she has his/her main place of business in Italy. By 

contrast, “eventually special domiciles” existing in Italy “are to be 

intended as jurisdiction criteria with the sole regard to the litigation that 

concerns the business for which the special domicile was elected” 74 . 

(viii) Where the Brussels Convention was still in force, the Supreme 

Court excluded the applicability of Article 5.3 to IP rights non 

infringement claims 75 . This decision was then followed by other lower 

instances courts 76 . Indeed, after Art. 5.3 was modified by the Brussels I 

Regulation that refers also to threatened wrongs, thus no more requiring 

69 See Trib. Torino, 19 May 2000 (ord.), in GADI (2001) p.225, n. 4224/1; Corte App. Milano, 16 

March 1990, RDIPP (1990) p. 698. Contra Trib. Milano, 24 January 2004, cit., p.787; Trib. Milano, 17 

September 1992, in GADI (1992) p. 2851and p. 814. On these decisions see N. BOSCHIERO, loc. cit. 

n. 65, at p. 18. 

70 See Trib. Torino, l 0 March 2009, forthcoming in RDIPP; Trib. di Milano, 10 December 2007, cit., 

p. 1103, n. 5177; Trib. Milano, 24 January 2004, in GADI (2004), p. 783, n.4711. On these decisions 

N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

71 See decision of 17 September 1992, cit., p. 814, on which see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

72 Judgment of 16 March 1990, RDIPP (1990) p. 698, on which see N. BOSCHIERO, loc. cit. n. 65, at 

p. 18. 

73 Decision of 23 May 2002, loc. cit. n. 66, at p. 18, p. 907, on which see N. BOSCHIERO, loc. cit. n. 

65, at p. 18. 

74 In the same sense see Cass. 3657/89. So, the domicile election ex Art. 75 of the Italian patent law 

(now substituted by the Italian IP code) before a patent attorney office grounds the sole jurisdiction 

with respect to the “claims related to the inventions” connected to the Italian portion of the 

European patent. 

75 Cass. 3657/89, RDI (1989) II, p. 224, on which see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

76 See Trib. Milano, 10 December 2007, cit., p.1105; Trib. Milano 23 May 2002, loc. cit. n. 66, at p. 

18, p. 911, on which see N. BOSCHIERO, loc. cit. n. 65, at p. 18.



a “damage”, the Italian courts seem to be more open to apply Article 5.3 

of the Brussels I Regulation even to cases related to IP rights non 

infringement claims (denial of the existence of a tort) 77 . 

(ix) Article 5.3 is applied whenever the infringement of the IP right at 

stake occurs in the State where this same right is protected, and not 

where the relevant party suffers pecuniary damages. Particularly, 

according to this case law the infringement occurs in a certain State 

where the IP right exists, whenever the counterfeit product “is 

advertised or sold” in the market of this State. 78 

Finally, among the specific internal jurisdiction provisions that by virtue 

of Article 3 of the Italian PIL Statute ground the international 

jurisdiction of the Italian courts, there is Article 120 of the Italian 

industrial property code, on international jurisdiction to hear 

international cases and on competence 79 , which gives the international 

jurisdiction to Italian courts whenever the case relates to an Italian 

registered or deposited IP right validity issue, raised as a claim or 

counterclaim or as a defence. As such this provision coincides with (and 

therefore is absorbed by) Article 22 .4 of the Brussels I Regulation. The 

77 See the judgment aforementioned of the court of first instance of Milan of August the 6 th 2008, 

cit., and also the following decisions: Tribunale di Milano, 29 March 2005, AIDA (2005) p. 640; 

Tribunale di Roma, ordinanza 1 February 2000, in AIDA (2000) p. 870; Trib. di Brescia, 11 

November 1999, in GADI (2000) n. 4107, p.505, on which see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

See supra for the declining of jurisdiction with respect to the non infringement of foreign IP rights 

connected with the declining of the same jurisdiction with respect to foreign IP rights validity issues. 

78 See for all Trib. Milano, spec. section, 29 March 2005, in AIDA (2005) n.1064, p. 641, on which 

see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

79 According to which “1. Any action related to IP rights already granted or in the process of being 

granted shall be raised before the court of the State, irrespective of the citizenship, the domicile, or 

the residence of the parties. If the validity action is raised when the IP right is not yet granted, then 

the judgement can be rendered only after that the Italian Office competent regarding patents and 

trademarks has judged on the same action, examining it with a precedence on the other claims that 

were previously raised. / 2. The actions mentioned at par. 1 shall be raised before the court of the 

place where the defendant is resident or domiciled, and if the residence and domicile are unknown, of 

the place where the defendant has his/her home, save what provided for at par. 3. When the 

defendant has no residence, domicile or home in the territory of the State, the actions shall be raised 

before the court of the place where the plaintiff has his/her residence or domicile. In the case where 

neither the defendant neither the plaintiff have their residence, domicile or home in the territory of 

the State the court of Rome has jurisdiction to hear the case. / 3. The election of domicile that is 

made with the trademark registration or with the patent application and that is indicated in the 

register has the effect of an election of an exclusive domicile in respect of the determination of the 

jurisdiction and every notification of filings related to proceedings before the ordinary and 

administrative courts. The domicile so elected can be modified only with a special instance of 

substitution that shall be annotated on the register by the Italian trademark and patent Office. / 4. 

The competence in matters of industrial property rights belongs to the courts expressly mentioned to 

this purpose by the legislative decree 27.6.2003, n. 168. / 5. The same courts mentioned at par. 4 are 

also the competent courts with respect of the Community trademarks and designs and registered 

designs ex Article 91 of the EC Regulation n. 40/94 and Article 80 of the EC Regulation n. 2002/6. 

/ 6. The claims based on facts that could infringe copyrights could be raised also before the court 

with a specialized section in the circumscription of which the facts have been perpetrated”. On this 

rule see S. BARIATTI, „La giurisdizione e l‟esecuzione delle sentenze in materia di brevetti di 

invenzione nell‟ambito della C.E.E.‟, Questa Rivista (1982) p. 484 ff.



question is if Article 120 grounds the international jurisdiction to the 

Italian courts also in other cases. Therefore, albeit it is apparent that 

Article 120 wants to attract before the Italian courts all the cases that 

are related to IP rights registered or deposited in Italy, this provision has 

to cope with the Community jurisdiction rules, which prevail over it. 

Thus, Article 120 does not apply where the case is covered by 

Article 5.3 of the Brussels I Regulation on IP rights infringements, or 

by Article 5.1 of the same Regulation, on contractual claims related to 

IP rights license/assignment agreements 80 . 

Jurisdiction rules are encompassed also by the Community Regulations 

on the Community IP rights afore mentioned 81 , which make an explicit 

reference to the Brussels Regulation 44/2001, that thus applies unless 

the Regulations provide for different specific jurisdiction rules. 

Finally, jurisdiction rules are also included in Articles 4, 5 and 6 of the 

Protocol on Jurisdiction and the Recognition of Decisions in respect of 

the Right to the Grant of a European Patent (Protocol on Recognition), 

of 5 October 1973, to which Italy is a Member State 82 . 

I.C.1 Conflict of Laws / Choice-of-Law 

In Italy conflict of laws/choice-of-law rules for tort, contracts and 

transfer of rights are mainly ruled by Community instruments. Hence, 

the law applicable to non contractual obligations is determined by the 

EC Regulation 864/2007 of the 11.7.2007 of the European Parliament and the 

Council on the law applicable to non-contractual obligations (Rome II) 83 . This 

80 As such see Trib. Roma 2 February 2000, in GADI (2000) p. 778. By contrast, according to 

another Italian Court, Article 120 should apply to any proceeding related with IP rights registered in 

Italy and therefore also to the infringement proceedings, notwithstanding the fact that those last ones 

enter into the scope of Article 5.3 of the Brussels I Regulation: see Trib. Roma 9 March 2000, in 

AIDA 2000, 913, that refers itself to Article 56 of the previous Italian Statute on trademark, now 

substituted by Article 120 of the Italian Code on IP rights. On these decisions see N. BOSCHIERO, 

loc. cit. n. 65, at p. 18. 

81 Arts. 94-107 of the Council Regulation (EC) No 2100/94 on Community plant variety; Articles 79- 

94 of the Council Regulation (EC) No 6/2002 on Community designs; and Artt.94-107 of the 

Council Regulation (EC) No 207/2009 on the Community trade mark. 

82 See http://www.epo.org/patents/law/legaltexts/html/epc/2000/e/ma4.html 

83 In OJ 2007 L 199/40. On the Rome II Regulation see C. NOURISSAT and E. TEPPOZ, „Quelques 

observations sur l‟avant–propos de proposition de règlement du Conseil sur la loi applicable aux 

obligations non contractuelle “Rome II”‟, 130 JDI (2003) p. 7; K.F. KREUZER, „La 

comunitarizzazione del diritto internazionale privato in materia di obbligazioni extracontrattuali 

(“Roma II”)‟, in P. PICONE, ed., Diritto internazionale privato e diritto comunitario (Padova, , Cedam 2004) 

p. 421; S.C. SYMEONIDES, Tort Conflicts and Rome II: a View from Across, in Festschrift für Eric Jayme, I, 

(Munich, Sellier European Law Publishers 2004) p. 935; S. BARIATTI, „La futura disciplina delle 

obbligazioni non contrattuali nel quadro della comunitarizzazione del diritto internazionale privato‟, 

RDIPP (2005) p. 5; G. CARELLA, „La disciplina internazionalprivatistica delle obbligazioni da fatto



Regulation establishes that IP rights infringements aspects shall be 

always ruled by the lex loci protectionis. 

The law applicable to contractual obligations was determined by the 

Rome convention of 1980 on the law applicable to contractual obligations 84 . Indeed, 

from December the 17 th of the current year (2009) the lex contractus will 

be determined according to the EC Regulation 593/2008 of 17.6.2008 of 

the European Parliament and the Council on the law applicable to contractual 

obligations (Rome I) 85 , that replaced the Rome Convention. This 

Regulation establishes firstly the application of the law chosen by the 

parties. In the absence of a law chosen by the parties, the Rome I 

Regulation, contrary to the European Commission proposal that lead to 

adopt it, does not provide anymore for a specific provision on the law 

applicable to IP rights transfer contracts, but includes those agreements 

in the general rule on the law applicable to every contract 86 . Specific 

illecito nella proposta di regolamento “Roma II”‟, ibidem, p. 25; R.J. WEINTRAUB, „Rome II and the 

Tension between Predictability and Flexibility‟, RDIPP (2005) p. 561; A. MALATESTA, ed., The 

Unification of Choice of Law Rules on Torts and Other Non-Contractual Obligations in Europe (Padova, Cedam 

2006) passim; C. FRÖHLICH , The private international law of non-contractual obligations according to the Rome-II 

Regulation, (Hamburg, Verlag Dr Kovac 2008) passim. 

84 80/934/EEC: Convention on the law applicable to contractual obligations opened for signature in 

Rome on 19 June 1980, Consolidated version CF 498Y0126(03), in OJ 1980 L 266/1–19. On this 

convention see for all in the Italian doctrine T. BALLARINO, ed., La convenzione di Roma sulla legge 

applicabile alle obbligazioni contrattuali. II. Limiti di applicazione. Lectio notariorum, (Milan, Giuffrè 1994) 

passim; G. SACERDOTI and M. FRIGO, eds., La convenzione di Roma sul diritto applicabile ai contratti 

internazionali, 2nd edn. (Milan, Giuffrè 1994) passim; C.M. BIANCA and A. GIARDINA, eds., Convenzione 

sulla legge applicabile alle obbligazioni contrattuali. Commentario, in Nuove leggi civili e commentate (hereafter, 

NLCC) (1995) p. 901; U. VILLANI, La Convenzione di Roma sulla legge applicabile ai contratti, 2nd edn., 

(Bari, Cacucci 2000) p. 8. 

85 In OJ 2008, L 177/6. On the Rome I Regulation see for all A. BONOMI, E. CASHIN RITAINE AND 

G.P. ROMANO, eds., Le nouveau règlement européen “Rome I” relatif à la loi applicable aux obligations 

contractuelles, Schulthess, (Zürich, Schultless, 2009) passim; F.J. GARCIMARTÍN ALFÉREZ, The Rome I 

Regulation: Much ado about nothing?, ELF (2008) p. 61; A. BONOMI, „The Rome I Regulation on the Law 

Applicable to Contractual Obligations‟,Yearbook of Private International Law (hereafter, YPIL) (2008) p. 

165; P. LAGARDE and A. TENENBAUM , „De la Convention de Rome au règlement Rome 1‟, RCDIP 

(2008) p. 727; AAVV., Il nuovo diritto europeo dei contratti: dalla convenzione di Roma al regolamento «Roma I». 

Atti del convegno (Bari, 23-24 marzo 2007) (Milan, Giuffrè 2008) passim; F. POCAR, Roma I, in Il Sole-24 

Ore, 9.1.2008; N. BOSCHIERO, ed., loc. cit. n. 34, at p. 10, passim. 

86 See CLIP, Comments on the European Commission‟s proposal for a regulation of the European Parliament and 

the Council on the law applicable to contractual obligations (Rome I), in IIC 2006, p. 471; „CLIP, Intellectual 

Property and the Reform of Private International Law – Sparks from a Difficult Relationship‟, IPRax 

(2007) p. 290; P. DE MIGUEL ASENSIO, „Applicable Law in the Absence of Choice to Contracts 

Relating to Intellectual or Industrial Property Rights‟, YPIL (2008) p. 212; P. TORREMANS, „Licenses 

and Assignments of Intellectual Property Rights under the Rome I Regulation‟, JPIL (2008) p. 405; 

N. BOSCHIERO, loc. cit. n. 34, at p. 10, p. 520; N. BOSCHIERO, „Spunti critici sulla nuova disciplina 

comunitaria della legge applicabile ai contratti relativi alla proprietà intellettuale in mancanza di scelta 

ad opera delle parti‟, in S. BARIATTI and G. VENTURINI, eds., Liber Fausto Pocar, II (Milan, Giuffrè 

2009) p. 151. On the applicable law to contracts related to copyright see A. METZGER, „Transfer of 

Rights, License Agreements, and Conflict of Laws: Remarks on the Rome Convention of 1980 and 

the Current ALI Draft‟, in J. BASEDOW, J. DREXL, A. KUR, and A. METZGER, loc. cit. n. 31, at p. 9, p. 

77; H.. SCHACK, Internationally Mandatory Rules in Copyright Licensing Agreements, ibidem, p. 114. See also 

M. JOSSELIN-GALL, Les contrats d‟exploitation du droit de propriété littéraire et artistique: étude de droit comparé 

et de droit international privé (Paris, GLN Joly 1995) passim; R. MASTROIANNI, Diritto internazionale e diritto



rules exist for IP rights transfer agreements if the contract could be 

characterized as a franchising or a distribution contract. 87 

Nevertheless, there are certain issues that are certainly not covered by 

the afore-mentioned Rome I and Rome II Regulations, and that 

therefore fall under the provisions of the Italian PIL Statute. Hence, for 

instance defamation issues were left aside by the Rome II Regulation for 

the lack of general consent on the possible applicable law. Therefore, 

defamation issues are governed in Italy by the law determined for torts 

in general by Article 62 of the Italian Statute of private and procedural 

international law, according to which “1. Liability for unlawful acts is 

governed by the law of the State where the event occurred. Nevertheless, 

the injured person may demand the application of the law of the State 

where the fact which caused the damage occurred. / 2. If the unlawful 

act involves only persons who are citizens of the same State and reside 

in it, the law of such State applies”. 

I.C.2 Conflict of Laws/Choice-of-Law in relation to IP cases 

With specific reference to the IP field, it is unclear whether Article 8 of 

the EC Rome II Regulation, that determines the law applicable to the IP 

right infringement aspects, applies also to other “preliminary” issues like 

the first ownership one, especially with regard to copyright. In any case, 

even if this issue should not be considered as covered by the scope of 

application of Article 8 of the Rome II Regulation, it falls into Article 

54 of the Italian PIL Statute on “rights relating to intangible assets”, 

according to which “the rights relating to intangible assets shall be 

governed by the law of the State in which they are used”. This rule is 

currently interpreted as recalling the lex loci protectionis. Other 

controversial issues are the transferability of IP rights and the transfer 

(of property) of IP rights by way of contracts. Those two issues are 

currently characterized as proprietary IP rights issues, consequently they are 

not covered neither by the Rome I Regulation nor by the Rome II 

Regulation. Thus, the transferability and the transfer aspects are ruled 

once again by Article 54 of the Italian PIL Statute. By contrast, as far as 

d‟autore (Milan, Giuffrè 1997) p. 402; C. METTRAUX, La loi applicable entre droit d‟auteur et droit des contrats 

(Zürich, Schulthess Juristische Medien AG 2003) passim; T. AZZI, Recherche sur la loi applicable aux droits 

voisins du droit d‟auteur en droit international privé (Paris, Bibliothèque de droit privé 2005) passim; A. 

TARRUELLA MARTINEZ, Contratos internacionales de software (Valencia, Tirant lo blanch 2006) passim. 

87 See. M.E. ANCEL, „The Rome I Regulation and Distribution Contracts‟, YPIL (2008) p. 221; L. 

GARCÍA GUTIÉRREZ, „Franchise Contracts and the Rome I Regulation on the Law Applicable to 

International Contracts‟, ibidem, p. 233.



all other contractual obligations related to IP rights transfer agreements 

are concerned, Rome I Regulation applies. 

Another relevant applicable law provision in force in Italy concerns the 

law applicable to the initial ownership of European Patents, which is 

provided for by Article 60 of the Munich European Patent Convention, 

according to which “(1) The right to a European patent shall belong to 

the inventor or his successor in title. If the inventor is an employee the 

right to the European patent shall be determined in accordance with the 

law of the State in which the employee is mainly employed; if the State 

in which the employee is mainly employed cannot be determined, the 

law to be applied shall be that of the State in which the employer has his 

place of business to which the employee is attached”. As far as the 

European Patent is concerned, specific provisions on jurisdiction are 

encompassed by the Protocol on Jurisdiction and the Recognition of Decisions in 

respect of the Right to the grant of a European Patent 

(Protocol on Recognition), of October the 5 th 1973 88 . 

Moreover, specific applicable law rules are encompassed also by the 

Community Regulations on the Community IP rights afore mentioned 89 , 

which make an explicit reference to the national rules of each Member 

State, including its private international law provisions as applicable, to 

establish the lex causae for every issue not covered by the Regulations. In 

this context it is relevant to mention that Article 8.2 of the Rome II 

Regulation specifically addressed the aspect of the law applicable to 

Community IP rights infringements. 

Finally, the unconditional application of lex protections established by 

Article 8 of Rome II Regulation strikes in comparison with the several 

departures from strict territoriality proposed by the most recent soft law 

initiatives. Both the ALI Principles and the set of principles established 

by the CLIP group envision i.a. in cases where the alleged infringement 

is ubiquitous (and the laws of several States are pleaded) the possibility 

for the courts to apply to the issues of existence, validity, durations, 

attributes and infringements of IPRs and remedies, one single set of 

rules, or a small set of rules of specific States, precisely the law or the 

laws of the State or States with the closest connections to the dispute, 

supplemented by a market impact assessment. This approach, which 

takes into consideration situations regularly arising with regard to 

(copyright) infringements carried out on the internet, is pursued in 

88 On which see http://www.epo.org/patents/law/legal-texts/html/epc/1973/e/ma4.html 

89 Art. 88 of the Council Regulation (EC) No 6/2002 on Community designs; and Art. 101 of the 

Council Regulation (EC) No 207/2009 on the Community trade mark.



parallel to the consolidation of territorial claims before one court, even 

in absence of an agreement by the parties. The objective of the drafters 

is to simplify the task for both parties and courts in the interest of 

efficiency. Both sets of rules seek to gain the simplification advantages 

of a single applicable law, instead of the laws of each affected State to 

the portion of infringement occurring within each State‟s borders, while 

assuring, as far as possible, compliance with the sovereignty interests 

underlying the territoriality approach. Thus, both set of rules emphasize 

the “exceptional circumstances” in which a court could override the 

general principle of the lex protectionis and provide that, whenever a court 

applies a single or reduced number of applicable law(s), the alleged 

infringer retain the right to demonstrate that his or her conduct is 

admissible with respect to a State in which the alleged activity is not 

really infringing, even if the same activity is unlawful in all the other 

States concerned. Rome II Regulation, equally, should provide for a 

more flexible solution. 90 

I.D.1 Recognition and enforcement of foreign judgments and interim measures 

In Italy recognition and enforcement of foreign judgements rendered by 

courts of EU Member States are governed by the Brussels I Regulation. 

91 The Brussels I Regulation then established recognition and 

enforcement provisions that apply to every judgment of EU Member 

States, notwithstanding the fact that the competence of the court that 

rendered the judgement to recognize was determined by the norms of 

the Regulation or by the internal rules of the Member States on 

international competence, in case that the case fell outside the scope of 

the Brussels I Regulation. Moreover, according to Article 32 of the 

Regulation “judgment” “means any judgment given by a court or 

tribunal of a Member State, whatever the judgment may be called, 

including a decree, order, decision or writ of execution, as well as the 

determination of costs or expenses by an officer of the court”. Finally, 

the Brussels I Regulation rendered the procedure for obtaining the 

recognition and enforcement extremely quick and easy. Hence, the 

90 See N. BOSCHIERO, „Infringement of Intellectual Property Rights. Comments on Article 8 of the 

Rome II Regulation‟, YPIL (2007) p. 110 ff. 

91 On the issue of recognition and enforcement of foreign judgments in Italy a book has been just 

published: O. L. PEGNA, I procedimenti relativi all‟efficacia delle decisioni straniere in materia civile (Padova, 

Cedam 2009). See also S. TONOLO, „Pluralità di giudicati ed opposizione all‟esecuzione delle 

decisioni straniere‟, in N. BOSCHIERO and P. BERTOLI, eds., Verso un “ordine comunitario” del processo 

civile. Pluralità di modelli e tecniche processuali nello spazio europeo di giustizia, Convegno interinale SIDI 

Como, 23 novembre 2007 (Naples, Editoriale Scientifica 2008) p. 71-96; P. DE CESARI, „La 

procedura semplificata di exequatur nei regolamenti Bruxelles I, Bruxelles II-bis e n. 1346/2000 e la 

sua applicazione pratica‟, ibidem, p. 19-44.



recognition and execution shall be immediately granted, and the 

defendant may only contest this recognition and execution granting 

decision in a second moment. In case that this contestation happens, 

then the Italian court may overcome its recognition decision only in 

very few cases among which it is not included the reviewing of the 

substance of the judgement and the verification of the jurisdiction of the 

court that rendered the judgement, unless the case judged entered into 

an exclusive jurisdiction criterion. 

In Italy recognition of foreign judgements rendered by courts of non 

EU Member State are governed by the Italian PIL Statute, and 

specifically by Arts. 64 and 67. Also according to the Italian PIL Statute, 

the notion of judgment encompasses any decision with a juridical effect, 

notwithstanding that this decision is not a definitive (or final) one. 

Indeed, according to the internal rule on recognition, even if “a foreign 

judgement is recognized in Italy without the necessity of resorting to 

any proceeding”, the verification of the fulfilment of certain 

requirements is necessary. Among those requirements stay also the 

evaluation of the jurisdiction rules that grounded the judgement to be 

recognized, and namely that “the judge who pronounced it could take 

cognizance of the case in accordance with the principles of the Italian 

system on jurisdictional competence”. 

According to Brussels I Regulation, the Italian jurisdiction with respect 

to provisional measures is grounded by its Article 31, according to 

which “application may be made to the courts of a Member State for 

such provisional, including protective, measures as may be available 

under the law of that State, even if, under this Regulation, the courts of 

another Member State have jurisdiction as to the substance of the 

matter”. 

The ECJ in the Van Uden case 92 interpreted Article 24 of the Brussels 

Convention, now Article 31 of the Brussels I Regulation, by stating that 

“3. Where the subject-matter of an application for provisional measures 

relates to a question falling within the scope ratione materiae of the 

Convention of 27 September 1968, that Convention is applicable and 

Article 24 thereof may confer jurisdiction on the court hearing that 

application even where proceedings have already been, or may be, 

commenced on the substance of the case and even where those 

proceedings are to be conducted before arbitrators. / 4. On a proper 

construction, the granting of provisional or protective measures on the 

92 ECJ, Case C-391/95 Van Uden Maritime / Kommanditgesellschaft in Firma Deco-Line and others [1998] 

ECR I-7091



basis of Article 24 of the Convention of 27 September 1968 is 

conditional on, inter alia, the existence of a real connecting link between 

the subject-matter of the measures sought and the territorial jurisdiction 

of the Contracting State of the court before which those measures are 

sought”. 

Moreover, in the St. Paul case 93 the ECJ excluded that the notion of 

provisional measures encompasses any measure that “is to be 

understood as referring to measures which, in matters within the scope 

of the Convention, are intended to preserve a factual or legal situation 

so as to safeguard rights the recognition of which is otherwise sought 

from the court having jurisdiction as to the substance of the case”. 

Therefore, are not to be intended as provisional measures the ones that 

“order the hearing of a witness” or that aim at the acquisition of 

evidences “for the purpose of enabling the applicant to decide whether 

to bring a case, determine whether it would be well founded and assess 

the relevance of evidence which might be adduced in that regard”. 

For cases not covered by the Brussels I Regulation, the Italian 

jurisdiction with respect to provisional measures is grounded by 

Article 10 of the Italian PIL Statute, according to which “Italian 

jurisdiction exists where the relevant measure is to be implemented in 

Italy or where the Italian judge has jurisdiction”. 

I.D.2 Recognition and enforcement of foreign judgments and interim measures in 

relation to the IP field of law 

With respect to IP, the rules related to the recognition and enforcement 

of foreign judgments and interim measures present certain peculiarities. 

94 

93 ECJ, Case C-104/03 St Paul Diary v Unibe,[ 2005]. On this case see the comment of PATAUT, 

RCDIP (2005) p. 746 and see also ESTEBAN DE LA ROSA, „La realización de pruebas en el espacio 

europeo de justicia: a propósito del reglamento 1206/2001 y su compatibilidad con el reglamento 

44/2001‟, Anuario español de Derecho internacional privado (2006) p. 316; K. SZYCHOWSKA, „Taking of 

evidence in intellectual property matters under regulations 44/2001 and 1206/2001‟, I.R.D.I.(2006) p. 

123; A. NUYTS, „Le règlement communautaire sur l‟obtention des preuves: un instrument exclusif?‟, 

RCDIP (2007) p. 61; C. BESSO, „L‟assunzione preventiva Della prova sganciata dal periculum in mora 

non è – secondo la Corte europea di giustizia- un procedimento provvisorio o cautelare‟, Int‟l lis 

(2006) p. 80; G. DI FAZZIO, „Istanza di istruzione preventiva (“esplorativa”) olandese e foro 

competente europeo‟, Riv. Dir. Proc. (2006) p. 785. 

94 On this issue see the following recent decisions: ECJ, Case C-38/98 Régie Nationales des Usines 

Renault SA v. Mexicar SpA, [2000] in www.curia.eu; U.S. District Court for the Southern District of 

New York, Sarl LouisFearud Intern v. Viewfinder, Inc., 406 F.Supp.2d, p. 274-281, 2005; Supreme Court 

of Canada, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R., p. 612, 2006 SCC 52, available at 

http://scc.lexum.umontreal.ca/en/2006/2006scc52/2006scc52.html. On those decisions see M.



First, during the very recent past years the IP field has been particularly 

interested by the phenomenon of the so-called “cross-border 

prohibitory injunction”, on the basis of which the Courts of the 

Netherlands used to grant interim measures to protect foreign IP rights 

from infringement activities perpetrated abroad, also in the absence of 

their jurisdiction on the merit. However, this practice is definitively 

overcome by the aforementioned ECJ case law on the territorial limit of 

the interim measures granted by courts that do not have the jurisdiction 

on the merits 95 . 

Second, it is relevant to mention that as far as the European Patent is 

concerned specific provisions on recognition of judgments are 

encompassed by the aforementioned Protocol on Jurisdiction and the 

Recognition of Decisions in respect of the Right to the grant of a 

European Patent (Protocol on Recognition), of October the 5 th 1973. 

Third, another question arises whether a “description” of allegedly 

counterfeiting goods 96 falls into the category of preliminary measures ex 

Article 31 of the Brussels I Regulation, or rather can be encompassed by 

the Council Regulation (EC) No. 1206/2001 of 28 May 2001 on the cooperation 

between the courts of the Member States in the taking of 

evidence in civil or commercial matters. 97 This question was referred to 

TRIMBLE LANDOVA, „Public Policy Exception to Recognition and Enforcement of Judgments in 

cases of Copyright Infringement‟, 40 IIC (2009) p. 654 ff. 

95 See for all C. HONORATI, „La cross-border prohibitory injunction olandese in materia di 

contraffazione di brevetti: sulla legittimitá dell‟inibitoria transfrontaliera alla luce della Convenzione di 

Bruxelles del 1968‟, RDIPP (1997) p. 301 ff.. 

96 On the description in general see point 50 of the conclusions of Advocate General Kokott for the 

Tedesco case, on which see infra. See also M. A. TAVASSI, „Tutela dei diritti in sede civile. Sequestro e 

descrizione – aspetti processuali‟, in P. FRASSI e S. GIUDICI, eds., Adeguamento della legislazione nazionale 

agli accordi TRIPS e procedimenti cautelari in materia di proprietà industriale (Milan, Giuffrè 1996) p. 4; M. 

NORRGÅRD, loc. cit. n. 57, at p. 15, p. 35; A. IBBEKEN, Das TRIPS-Ubereinkommen und die vorgerichtliche 

Beweishilfe im gewerblichen Rechtssihutz (Cologne, Carl Heymanns Verlag 2004) p. 109; K. SZYCHOWSKA, 

loc. cit. n. 93, at p. 25, p. 116; A. NUYTS, loc. cit. n. 93, at p. 25, p. 76; C. HEINZE, Einstweiliger 

Rechtsschutz im europäschen Immaterialgüterrecht (Tübingen, Mohr Siebech 2008) . 653 

97 On this Regulation in general, see „UE: regolamento n. 1206/200l sull‟assunzione delle prove 

all‟estero in ambito comunitario‟, in C. CONSOLO and M. DE CRISTOFORO, Il diritto processuale civile 

visto da Int‟l Lis dal 2002 ad oggi, (Milano, 2006); GIOIA, „Cooperazione fra autorità giudiziarie degli 

Stati CE nell‟assunzione delle prove in materia civile e commerciale‟, NLCC (2001) p. 1159; L. 

FUMAGALLI, „La nuova disciplina comunitaria dell‟assunzione delle prove all‟estero in materia civile e 

commerciale‟, RDIPP (2002) p. 327; BORGHESI, „Convenzione dell‟Aja (1970) e regolamento CE n. 

I206/2001 sull‟assunzione delle prove all‟estero in materia civile e commerciale‟, in FERRARI, ed., Le 

convenzioni di diritto del commercio internazionale, 2nd edn. (Milan, Giuffrè 2002) p. 335; N. TROCKER, 

„Note sul regolamento n. 1206/2001 relativo all‟assunzione delle prove in materia civile e 

commerciale‟, RD Int. (2003) p. 670; M. FRIGO and L. FUMAGALLI, L‟assistenza giudiziale internazionale 

in materia civile (Padova, Cedem 2003) p. 159; R. BONATTI, „Sovranità nazionale e leggi processuali 

nell‟armonizzazione del diritto delle prove in Europa‟, RTDPC (2004) p. 711; P. BIAVATI, „Problemi 

aperti in materia di assunzione delle prove civili in Europa‟, ibid. (2005) p. 425; L. SANDRINI, 

„L‟assunzione delle prove all‟estero. Dalla convenzione dell‟Aja del 1970 al regolamento CE



the ECJ by an Italian Court in the Tedesco case. 98 Hence, Article 128 of 

the Italian Code of Intellectual Property on "description" states that "l. 

The owner of an industrial property right may request to order the 

description of any objects infringing his right, as well as of the means 

used in the production of such objects and of the items of evidence 

concerning the reported infringement and its entity. / 2. The petition is 

filed with the President of the specialised section of the court competent 

for ruling on the merits pursuant to Article 120. / 3. The President of 

the specialised section issues a summons for a hearing and sets the final 

date for notification of the summons. / 4. After having heard the parties 

and admitted summary information, if necessary, the same court decides 

by non-appealable order and, if provided by the description, indicates 

the necessary measures to be adopted so as to ensure the protection of 

confidential information and may authorize the seizure of samples of 

the objects mentioned in paragraph 1. / When the summons of the 

counterpart might prejudice the implementation of the decision, it 

decides on the request by a reasoned judgment, derogating the 

provisions of paragraph 3. / 5. The judgment of acceptance, in cases 

where the request was filed before the case on the merit has been 

initiated, has to set a final time limit not exceeding 30 days for initiating 

the trial on the merits". This Article was codified as a result of the 

adoption of the Community Enforcement Directive. In 2005 an Italian 

company lodged a request for ruling ante causam with the IP section of 

the Court of Genoa regarding the "description" of the goods pursuant 

to Art. 128 of the CPI against an English company and its Italian 

distributor. In particular, the plaintiff alleged to be the owner of an 

Italian patent for, an industrial invention; he claimed that the English 

company produced the goods in dispute in England and sent them from 

there to the Italian distributor, who resold them on the national market; 

he qualified the activity of the two companies as infringement of his 

patent; besides, he requested a "description" of goods according co Art. 

128 CPI, and sought its performance in Italy ex Art. 128 CPI and 

addressed a request for judicial assistance to the competent body in the 

United Kingdom, with a view to the latter taking evidence in respect of 

1206/‟2001‟, in I. AMBROSI and L.A. SCARANO, eds., Diritto civile comunitario e cooperazione giudiziaria 

civile (Milan 2005) p. 215. 

98 See the ECJ, Case C-175/06 Alessandro Tedesco v. Tomasoni, finally settled by an agreement between 

the parties and therefore not decided by the ECJ. See also the opinion of the Advocate General of 18 

July 2007 in - C-175/06 - Tedesco published in EuLF (2008) p. 1-42. On the Tedesco case see B. 

UBERTAZZI, „The EC Council Regulation on evidence and the “description" of goods infringing IP 

rights‟, EuLF (2008) p. I-80; L. FUMAGALLI, „Il caso “Tedesco”: un rinvio pregiudiziale relativamente 

al Regolamento n. 1206/2001‟, in S. BARIATTI and G. VENTURINI, loc. cit. n. 86, at p. 22, p. 391; C. 

HEINZE, „Beweissicherung im europäischen Zivilprozessrecht‟, IPRax (2008) p. 480; HESS, 

„Preservation and Taking of Evidence in Cross-Border Proceedings- Comparative Remarks in the 

Context of IP Litigation‟, in A. NUYTS, ed., International Litigation in Intellectual Property and Information 

Techonology (The Hague, Kluwer Law International 2008) p. 298.



evidential materia1 situated in the United Kingdom according to said 

rule as well as Council Regulation (EC) No. 1206/2001 of 28 May 2001 

on the co-operation between the courts of the Member States in the 

taking of evidence in civil or commercial matters.- He demanded in 

particular that the description in the United Kingdom should extend to 

the counterfeited products and to further "items of evidence such as, for 

example but not exclusively, invoices for purchase and sale, delivery 

notes, orders, letters of commercial offers, advertising and promotional 

material, data recorded in the computerized archives, clearance 

documents". 

The President of the IP section of the Court of Genoa admitted the 

petition, ordered the description in Italy and requested the British court 

to proceed with the description on its own territory. The reply from the 

Senior Master of the Queen‟s Bench Division of the Supreme Court of 

England and Wales, however, was negative, "a short note, without 

signature" to the effect that "this is nor a matter which we consider 

should fall to be dealt with by this office under the Letter of Request 

procedure". Then, by Order of 14 March 2006, the President of the IP 

section of the Court of Genoa referred the following questions to the 

ECJ, requesting a preliminary ruling on the interpretation of Council 

Regulation (EC) No. 1206/2011: "l. Is a request for obtaining a 

description of goods under Articles 128 and 130 of the Italian Code of 

Industrial and Intellectual Property, in accordance with the formal terms 

of the order made by this court in the present case, one of the forms of 

the taking of evidence prescribed by Council Regulation (EC) No 

l23612001 of 28 May 2031 (on co-operation between the courts of the 

Member States in the taking of evidence in civil and commercial 

matters) by which the courts of one Member State may, on the basis of 

that regulation, request that the competent court of another Member 

State should itself take that evidence?". On 18 July 2007 Advocate 

General Kokott presented her own conclusions in the proceedings C- 

175106 before the ECJ. Nevertheless, the private parties to the case in 

question reached medio tempore a settlement of their dispute. Then, by 

Order of 26 March 2007 the President of the IP section declared that 

there was no need to adjudicate the case, and thus, by Order of 27 

September 2007, the ECJ considered that "the questions referred for a 

preliminary ruling had become devoid of purpose" and ordered that the 

case be removed from its register. Indeed, the above-mentioned national 

judgment and the Community judgment have nevertheless raised a 

question which remain of interest even beyond the concrete case that 

has been closed by now. 

As the Advocate General Kokott maintained in her conclusion related 

to the case at stake, measures of precautionary taking of evidence falls



within the scope of Regulation (EC) No. 1206/2001. The description 

constitutes a provision for precautionary taking of evidence. Therefore 

it is covered by the autonomous Community concept of relevant 

evidence according to Regulation (EC) No. 1206/2001. This conclusion 

is supported by many arguments, of which here it suffices to recall the 

one that refers to the ECJ St Paul Diary judgment. Hence, according to 

this judgment measures of precautionary taking of evidence do not fall 

within the scope of Article 24 of the Brussels Convention (now Article 

31 if the Brussels I Regulation) and therefore this Regulation does not 

apply to them. Thus, it seems that the co-ordination among the PIL 

legal instruments of an European nature allow to maintain that the 

measures of precautionary taking of evidence should at least fall into the 

EC Regulation on the acquisition of evidences. 

Fourth, the public policy exception can play an important role with 

respect to the issue of recognition/enforcement of foreign decisions 

and interim measures. Hence, this exception is adopted not to 

recognize/enforce a foreign decision, interim measure and/or a remedy 

that (i) in case of copyright does not recognise the moral rights 99 ; or (ii) 

that is based on an equilibrium among the IP rights and other 

fundamental human rights (such as the freedom of speech and 

respectively the right of property) that is different than the one accepted 

in the legal system of the requested State 100 ; or (iii) award punitive 

damages 101 . By contrast, a recent study demonstrated that although 

“economic rationales play a great role in shaping copyright law, […] 

courts do not consider economic considerations to be fundamental 

public policies with the potential to trigger the public policy exception”. 

This conclusion is grounded on two recent decisions: the ECJ judgment 

Régie Nationales des Usines Renault SA v. Mexicar SpA of 11.5.2000 and the 

U.S. District Court for the Southern District of New York, Sarl Louis 

Fearud Intern v. Viewfinder, Inc. of 2005. 

II. Peculiarities of the Italian PIL system concerning the IP sector 

99 See R. MASTROIANNI, op. cit. n. 86, at p. 22, p. 403. 

100 See M. TRIMBLE LANDOVA, loc. cit. n. 94, at p. 25 , p. 654 ff. See also A. DI BLASE, „Human- 

Right-Related Aspects in the Settlement of International Disputes on Intellectual Property Rights‟, in 

S. BARIATTI and G. VENTURINI, loc. cit. n. 86, at p. 22, p. 275 ff. 

101 See for all the Italian Supreme Court decision of 19 January 2007 n.1183, RDIPP (2007) p. 781 on 

which see M. LOPEZ DE GONZALO, „Punitive Damages e ordine pubblico‟, in RDIPP (2008) p. 77, 

according to which punitive damages in general are completely counter to Italian public policy. Contra 

particularly with regard to IP rights in legal systems other than the Italian see M. TRIMBLE LANDOVA, 

loc. cit. n. 94, at p. 25, p. 663 and there further case-law references.



Article 54 of the new Italian PIL Statute is one of the greatest and most 

important innovations in Italian traditional choice of law rules. It adopts 

the lex loci protectionis as the general conflict of laws principle, defined as 

“the place of exploitation”, on the presupposition that is always possible 

to identify the place where the right is used. The law of the protecting 

country addresses all the issues and problems arising from transnational 

disputes in intellectual property, without making any distinction between 

registered and unregistered rights: i.e., the existence and creation of the 

right, the scope of the right, its validity, transferability, duration, 

attributes, moral rights, infringement and (civil) remedies. The lex loci 

protectionis applies also to some controversial issues, like the authorship 

and first ownership of copyrights works, as our choice of law rule does 

not contain any exception pointing to the law of the country of origin 

for specific issues. The only exception is for the initial title of works 

created pursuant a contractual relationship, as according to legal 

writing 102 it is submitted that the link is stronger with the employment 

relationship, and the appropriate choice of law rule should be that 

contained in Article 6 of the Rome Convention (now Article 8 of the 

Rome I Regulation). 

According to a minority, even if very authoritative, opinion 103 Article 54 

could not be construed like a normal choice of law rule. The inherent 

territoriality of the IP rights removes the need for a general choice of 

law rules since each State could not but apply its own national 

substantive rules to creation, scope and termination of intellectual 

property rights. Consequently, Article 54 should be interpreted 

(according to this opinion) as a pure unilateral and introvert choice of 

law rule, clarifying that Italian Law is the only possible applicable law 

when someone wants to exploit an IP right in Italy. What is lacking is “a 

same juridical category, or a same legal paradigm” in relation to which 

different laws can come into consideration. Foreign laws could only be 

considered “indirectly” in order to identify the types of IP rights 

protected under others laws, the owners of these rights and in order to 

solve “preliminary issue” concerning the infringement of the rights and 

the possible remedies (question answered in any case by other conflict 

of law rules). 

Apart its high level of sophistication of this construction, the fact that it 

is in contrast with the statutory intervention of the Italian legislator, 

opposed by the large majority of legal writing and denied by Italian 

courts practice 104 its implementation leads to the same practical results 

102 N. BOSCHIERO, loc. cit. n. 34, at p. 10, p. 463 et seq. 

103 R. LUZZATTO, „Art. 54 (diritti su beni immateriali)‟, in S. BARIATTI, ed., Commentario della riforma del 

sistema italiano di diritto internazionale privato, NLCC (1996) p. 259 f. 

104 See for a recent analysis of the Italian jurisprudence on IP issues, N. BOSCHIERO, loc. cit. n. 65, at 

p. 18.



as envisaged by who recognized in this rule a normal “bilateral” choice 

of law rule. 

The problems with the Italian judicial practice is that in a large number 

of cases our courts are prevented to move on to the next stage of 

private international law reasoning (applying the appropriate choice of 

law rule), being obliged to deny to possess jurisdiction. This is mainly 

due to the fact that, disputes related to creation, registration and validity 

of industrial property rights will inevitably come within the special 

exclusive jurisdictional rule contained in Article 22.4 of Brussels I 

Regulation and very few cases fall outside the scope of this rule. 

Secondly, according to some recent developments in the ECJ‟s practice 

in the field of intellectual property, a strong weight has been given to the 

substantive principle of territoriality. The natural consequences of this new 

approach, are (first) that almost any patent proceedings need to be 

brought in each country of registration and (second) that the possibility 

to consolidate proceedings against several infringers acting in different 

Member States has been definitively precluded. Furthermore, 

jurisdiction grounds in infringement claims (like Art. 5.3 of Brussels I 

regulation) are inherently “territorial”: they provide jurisdiction limited 

to injuries that arise in the forum. In those cases, when jurisdiction is 

accepted, there is a natural coincidence between the forum and the jus. 

The same occurs when provisional (including protective) measures are 

sought: the EU courts have no more jurisdiction to order cross-border 

injunctions, only for measures that are intended to prevent, preserve, to 

seize intellectual property rights in the State where the right exist. 

In sum, the advantages provided by the general basis of jurisdiction in 

the “Brussels System” (the defendant‟s domicile) have been greatly 

reduced, and consequently also the possibility for the Courts of the 

Member States to apply other Member States‟ substantive law, 

according to their choice of law rules. Still, some disputes deserve a 

“strict” private international law reasoning. Here, the process of a 

“proper” classification or characterisation can raise some problems: non 

contractual issues must be clearly distinguished from other issues, 

primarily from contractual issues. Issues such transferability or 

assignability of an IP right, for example, fall outside the scope of the lex 

contractus: as preliminary issues which are linked with the grant of the 

right, they are governed by the law which governs the right itself: the lex 

loci protections. 

It‟s really a pity that the European “legislator” has lost the opportunity 

to clarify the exact scope of the lex loci protectionis, that‟s to say the 

statutory choice of law rules chosen at European level for questions of 

intellectual property in infringement case. Arts. 8 and 15 of Rome II 

Regulation are still subject to very different interpretation, going from



the broadest possible scope (covering any possible issue) to the 

narrowest possible understanding (exclusively the issues of violation of 

the right and remedies as such). On problematic issue, like initial 

ownership, the Community Regulation is silent, thus legitimating 

divergent interpretation and application, at least since the ECJ will be 

asked to clarify the exact scope of the “universally acknowledged 

principle of the lex loci protectionis”. 105 

Section II: Hypothetical Case Studies 

Case 1 General / Special Grounds of Jurisdiction 

In the case at stake A is an international pop-music idol who has just 

released a new single. At a point in time when sales of the new single 

have increased B, the publisher of a monthly music journal, inserts a 

headline article claiming that the new single of A is a mere adaptation of 

a song released in the 1950‟s. A files a defamation suit. 

A first question then arises whether an Italian court would have 

international jurisdiction if the defendant B had its residence in your 

country. Another question connected to the former then arises as to 

whether the decision regarding international jurisdiction of the Italian 

court would differ if the defendant was a corporation having its main 

place of business in a third country X, but with a branch located in Italy. 

Other two questions then arise, namely if an Italian court would have 

international jurisdiction where the copies of the journal were 

distributed in Italy in the language which is officially spoken, and if the 

decision would differ where the journal was printed in Italy for 

distribution in neighbouring country X (in a language which is not 

spoken in Italy). A final question that arises is whether under the Italian 

law the residence of the defendant would be necessary for a court to 

have international jurisdiction over A‟s claim for the overall damage 

sustained in all countries where the journal was published. 

The rules relevant to answer this first question are the following. (i) 

Article 2 of the Brussels I Regulation 106 , Article 5.3 of the Brussels 

105 Recital 26 of the Rome II Regulation 

106 According to which “subject to this Regulation, persons domiciled in a Member State shall, 

whatever their nationality, be sued in the courts of that Member State”.



Regulation 107 , Article 5.5 of the Brussels I Regulation 108 and Article 60 

of the Brussels I Regulation 109 . (ii) Also, it is important to remember the 

ECJ Shevill decision 110 , according to which the expression of Article 5.3 

of the Brussels I Regulation „place where the harmful event occurred‟ 

shall be interpreted in the sense that “the victim of a libel by a 

newspaper article distributed in several Contracting States may bring an 

action for damages against the publisher either before the courts of the 

Contracting State of the place where the publisher of the defamatory 

publication is established, which have jurisdiction to award damages for 

all the harm caused by the defamation, or before the courts of each 

Contracting State in which the publication was distributed and where 

the victim claims to have suffered injury to his reputation, which have 

jurisdiction to rule solely in respect of the harm caused in the State of 

the court seized”. (iii) Moreover, the answers to the questions addressed 

here are based on the Italian relevant case-law, which is in line with the 

Shevill judgement. Italian case law even specifies that when the injured 

person is suffering honour and reputation damages in a State different 

than the country where the paper was printed and distributed, the place 

where the harmful event occurred is not to be intended as the place 

where the injured person suffered injury to his reputation but as the 

place where the paper was distributed. 111 Moreover, the Italian Supreme 

Court decision stated that in case in which the newspaper was only 

distributed in Italy but the publisher of the defamatory publication has 

not his establishment in Italy, it is nevertheless possible to attract the 

foreign defendant before an Italian court ex Article 6.1 of the Brussels 

Convention (now 6.1 of the Brussels I Regulation). In this case it is 

possible to overcome the limits established by the Shevill decision, and 

thus the Italian court could award damages that occur not only inside its 

territory, but could adjudicate on the entire damage suffered in every 

other State where the paper was also distributed. 112 

In this framework, the answer to the first question posed here is that an 

Italian Court would have jurisdiction to adjudicate the case since the 


sued: / […] 3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the 

harmful event occurred or may occur”. 


sued: / […] 5. as regards a dispute arising out of the operations of a branch, agency or other 

establishment, in the courts for the place in which the branch, agency or other establishment is 

situated”. 

109 According to which “1. For the purposes of this Regulation, a company or other legal person or 

association of natural or legal persons is domiciled at the place where it has its: / (a) statutory seat, or 

/ (b) central administration, or / (c) principal place of business”. 

110 ECJ, Case C-68/93 Shevill [1995] ECR I-415. 

111 See Trib. Milano 18 April 2008, in Dir. Inf. e Informatica (2008) p. 351; Cass. s.u. 27 October 2000, n. 

1141, Diritto e giustizia (2000) p. 28. 

112 See Cass. s.u. 21 June 2006, n. 14287, Dir. Inf. e informatica (2006) p. 545.



defendant B had its residence/domicile in Italy ex Article 2 of the 

Brussels I Regulation. Moreover an Italian Court would have 

jurisdiction to adjudicate the case since the defendant B had its main 

place of business outside Italy and its branch in Italy, but only in relation 

to a dispute arising out of the operations of the branch ex Article 5.5 of 

the Brussels I Regulation. Also, according to Article 60 of the Brussels I 

Regulation a company is to be considered domiciled in Italy not only 

where its main place of business is located in Italy, but also where its 

statutory seat, or central administration are located in Italy. Therefore, if 

the defendant B has in Italy its statutory seat, or central administration, 

then Italian jurisdiction would be competent to adjudicate the entire 

case. Finally, the answers to the questions here addressed would not be 

different in cases where IP rights are at stake. 

The answers to the questions no. 2 and 3 addressed here is the following. 

(i) An Italian court would have jurisdiction where the copies of the 

journal would be distributed in Italy, without any relevance of the 

language adopted by them. But, according to the ECJ Shevill decision, in 

this case the Italian court would have jurisdiction to rule solely in 

respect of the harm allegedly caused in Italy. (ii) By contrast, an Italian 

court would not have jurisdiction where the copies of the journal would 

be printed in Italy and distributed outside Italy, without any relevance of 

the language adopted by them. (iii) Also, an Italian court would have 

jurisdiction where the copies of the journal would be printed in Italy by 

a publisher resident in Italy and distributed outside Italy, without any 

relevance of the language adopted by them. In this case according to the 

ECJ Shevill decision, the Italian court would have jurisdiction as the 

court of the Contracting State of the place where the publisher of the 

defamatory publication is established and will have jurisdiction to award 

damages for all the harm caused (also abroad) by the defamation. (iv) 

The answers to questions 2-3 would be different in cases in which the 

issue at stake does not relate not to “defamation” but to IP rights. 

Hence, according to the prevailing opinion among academics, in Italy 

the Shevill jurisprudence does not apply to IP cases since they have a 

territorial character, which renders inconceivable that an IP rights could 

be infringed in a State where it does not exist. As a consequence, in an 

IP rights “pure infringement” case it seems impossible to distinguish 

between the State where the harmful event occurs and the State where 

the illegal action takes place. As those two States necessarily coincide, an 

infringement act can only be localised in the State where the IP right to 

protect exists. Thus, an Italian court would have international 

jurisdiction to hear the case only: 1) when the defendant is domiciled in 

Italy; or: 2) if Italy is the Protecting Country; and the IP right is allegedly 

infringed in Italy. In the case of defendant domiciled in the forum state,



the Italian courts could adjudicate the entire damage (also that arose in 

foreign countries where the journal has been distributed, albeit by 

applying each single lex loci protectionis). Conversely, when the only 

connecting factor is the occurring infringing act in the forum, the Italian 

courts can adjudicate the sole damage produced in Italy. Other 

circumstances, such as the printing of the journal in Italy (later 

distributed elsewhere), or the language of the journal, are irrelevant to 

establish Italian jurisdiction on the case. 

Finally, it is relevant to highlight that the Shevill decision has been 

criticized by some Italian scholars, since a) the place where the publisher 

of the defamatory publication is established does not coincide always 

with the printing place; b) the fact that originates a damage is not 

constituted by the printing of the paper, but rather by its distribution; 

and c) the limits established by the ECJ to the competence of each court 

to award damages suggests to the victim to start a single proceeding 

always at the place of the domicile of the defendant: such render de facto 

inapplicable the alternative basis of jurisdiction provided by Article 5.3 

113 . Also, the Shevill jurisprudence does not apply to IP rights cases by 

reason of their territorial nature 114 . 

Case 2 Subject Matter Jurisdiction 

In the case at stake, a court of country X is dealing with a dispute 

between A and B concerning an infringement of a foreign patent issued 

in country Y. During the course of infringement proceedings, B makes a 

counter-claim that the patent is invalid. 

The first question that arises is whether, assuming that an Italian court is 

the court of country X, the Italian court would have international 

jurisdiction in an infringement/validity case, when the validity of a 

patent is raised as a defence to infringement. 

The second question that arises is whether the Italian court would have 

international jurisdiction to decide upon the issues of validity (and 

registration) of foreign intellectual property rights, and if so what would 

be the legal effects (inter partes or erga omnes) of such a decision and 

would it differ with regard to registered and non-registered intellectual 

property rights. 

The third question that arises is what would the decision of the Italian 

court be if the question of the validity of a foreign intellectual property 

113 See A. SARAVALLE, „Forum damni o fora damni‟, IV Foro it. (1995) pp. 337-340; M.B. DELI, 

„Giurisdizione competente ed illeciti transfrontalieri commessi a mezzo di stampa‟, Dir. Inf (1995) p. 

836. 

114 See N. BOSCHIERO, loc. cit. n. 36, at p. 11, p. 81.



right arose as a preliminary question and remained unchallenged by the 

parties. 

The relevant rules to address those questions are the following. (i) 

Article 2 of the Brussels I Regulation, Article 5.3 of the same Regulation, 

Article 22.4 of the Brussels I Regulation 115 and Article 25 of the 

Brussels I Regulation 116 , (ii) Also, it is necessary to remember that 

Article 22.4 has been interpreted by the ECJ in 2 different occasions. 

Firstly, with the already recalled Duijnstee Judgment the ECJ maintained 

that Article 16.4 of the Brussels Convention, now 22.4 of the 

Regulation 44/2001, applies only to proceedings “concerned with the 

registration or validity of patents”, but does not apply to proceedings 

related to IP rights infringement or to the determination of what party is 

entitled to an existing IP right on the basis of a previous legal 

relationship between the parties. Subsequently, the ECJ with the 

aforementioned GAT decision maintained that Article 16.4 of the 

Brussels Convention, now 22.4 of the Regulation 44/2001, “is to be 

interpreted as meaning that the rule of exclusive jurisdiction laid down 

therein concerns all proceedings relating to the registration or validity of 

a patent, irrespective of whether the issue is raised by way of an action 

or a plea in objection”. Also, according to the Jenard Report to the 

Brussels Convention 117 , Article 16.4 of the Brussels Convention, now 

Article 22.4 of the Brussels I Regulation, “applies to proceedings 

concerned with the registration or validity of patents, trade marks, 

designs or other similar rights, such as those which protect fruit and 

vegetables varieties, and which are required to be deposit or registered”. 

(iii) Moreover, it is relevant to remember the Italian case law on the 

point. First, Italian courts commonly accept jurisdiction in cases 

concerned solely with the issue of infringement of foreign IP rights 118 . 

Second, in Italy whenever a Court decline its jurisdiction by reason of 

Article 22.4 with respect to foreign IP rights validity issues, then it also 

115 According to which “the following courts shall have exclusive jurisdiction, regardless of domicile: 

/ 4. in proceedings concerned with the registration or validity of patents, trade marks, designs, or 

other similar rights required to be deposited or registered, the courts of the Member State in which 

the deposit or registration has been applied for, has taken place or is under the terms of a 

Community instrument or an international convention deemed to have taken place. / Without 

prejudice to the jurisdiction of the European Patent Office under the Convention on the Grant of 

European Patents, signed at Munich on 5 October 1973, the courts of each Member State shall have 

exclusive jurisdiction, regardless of domicile, in proceedings concerned with the registration or 

validity of any European patent granted for that State”. 

116 According to which “where a court of a Member State is seized of a claim which is principally 

concerned with a matter over which the courts of another Member State have exclusive jurisdiction 

by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction”. 

117 See the Report on the Convention by Mr. Jenard, OJ 1979 C 59, p. 1, at p. 36. See also 

“Convention on jurisdiction and the recognition and enforcement of judgments in civil and 

commercial matters, signed in Lugano on 30 October 2007. Explanatory Report by Professor Fausto 

Pocar (Holder of the Chair of International Law at the University of Milan) ”, in OJ 2009/C 319/01, p. 25. 

118 See Trib. Roma, 1 February 2000, cit., p.870.



declines its jurisdiction with respect to claim of non infringement of the 

same foreign IP rights, raised as a defence 119 . Third, the court of first 

instance of Milan, with a judgment of August the 6.8.2008 120 applied 

Article 22.4 to a copyright infringement case. Indeed, it is pacific that 

Article 22.4 does not concern copyright and does not even regard IP 

rights infringements 121 . Fourth, before the ECJ‟s GAT decision the 

Italian jurisprudence did not apply Article 16.4 of the Brussels 

Convention, now 22.4 of the Brussels Regulation, to foreign registered 

IP rights validity issue raised as a defense, or to be examined incidentally 

with an inter partes effect 122 . After the ECJ‟s GAT judgment the Italian 

courts apply Article 22.4 of the Brussels I Regulation with respect to 

foreign IP rights validity issues raised incidentally or as a defense 123 . 

Fifth, the court of first instance of Milan 124 , confirmed that Article 16.4 

of the Brussels Convention (now Article 22.4 of the Brussels I 

Regulation) attributes the exclusive jurisdiction to Italian courts so long 

the registration and validity issues of an Italian trademark is concerned, 

notwithstanding the fact that the trademark itself had been registered 

internationally (according to the Madrid Arrangement). Sixth, the court 

of second instance of Milan 125 excluded the application of Article 16.4 

of the Brussels Convention (now Article 22.4 of the Brussels I 

Regulation), therefore accepting its jurisdiction, in a case in which the 

question at stake was related not to the registration and validity of a 

specific trademark, but to a right of prior use of the same trademark. 

According to the Appeal court this issue is not covered by Article 16.4. 

Seventh, as regards to the general ground of jurisdiction criterion 

(defendant‟s domicile) the Court of first instance of Milan, 126 stated 

that the notion of domicile must be interpreted and construed according 

to the Italian substantive law: therefore, the defendant is domiciled in 

Italy only where he or she has the main place of business in this country. 

By contrast, “eventually special domiciles” existing in Italy “are to be 

intended as jurisdiction criteria with the sole regard to the litigation that 

concerns the business for which the special domicile was elected” 127 . 

Eight, when the Brussels Convention was still in force, the Supreme 

119 See Trib. Milano, 10 December 2007, cit., p. 1103; Trib. Milano 23 May 2002, loc. cit. n. 66, at p. 

18, p. 912; Trib. Milano, 24 January 2004, cit., p.788. 

120 Ready to be published in AIDA (2009), on which see N. BOSCHIERO, loc. cit. n. 65, at p. 18. 

121 See all other Italian judgements on 22.4 hereafter mentioned and for all N. BOSCHIERO, loc. cit. n. 

36, at p. 11, p. 94. 

122 See Trib. Torino, 19 May 2000 (ord.), cit., p.225; Corte App. Milano, 16 March 1990, cit., 698. 

Contra Trib. Milano, 24 January 2004, cit., p.787; Trib. Milano, 17 September 1992, cit., p. 814. 

123 See Trib. Torino, l0 March 2009, cit.,; Trib. di Milano, 10 December 2007, cit., p. 1103, n. 5177; 

Trib. Milano, 24 January 2004, cit., p.783. 

124 See decision of 17 September 1992, cit., p. 814. 

125 Judgment of 16 March 1990, cit., 698. 

126 Decision of 23 May 2002, loc. cit. n. 66, at p. 18, p. 907. 

127 In the same sense see Cass. 3657/89.



Court excluded the applicability of Article 5.3 to IP rights non 

infringement claims 128 , followed by some Courts 129 . Due to the 

modification of this norms, introduced by the Brussels I Regulation 

(that refers also to threatened wrongs, thus no more requiring a 

“damage”) the Italian courts seem to be more open to apply Article 5.3 

of the even to IP rights non infringement claims (denial of existence of 

a tort) 130 . Ninth, Article 5.3 is applied whenever the IP rights 

infringement occurs in the State where the right is protected, and not 

where the relevant party suffers pecuniary damages. Particularly, 

according to this case law the infringement occurs in a certain State 

where the IP right exists, whenever the counterfeit product “is 

advertised or sold” in this State market. 131 

In this context, it is possible to answer the first question raised here in 

the sense that an Italian Court would have jurisdiction to adjudicate the 

infringement of foreign IP rights ex Article 2 or 5.3 of the Brussels I 

Regulation, but only if it is a “pure” infringement case, i.e., without the 

issue of validity being raised at all. 

The answer to the question no. 2 is that an Italian Court would not have 

jurisdiction to adjudicate the validity of a foreign registered IP right; but 

there is no limitation on jurisdiction preventing our courts to adjudicate 

the validity of a foreign unregistered IP right. Such a decision would have an 

erga omnes effect if raised in a principal way; otherwise if the validity issue 

is raised incidentally or by way of defence, it would have solely an inter 

partes effect. 

With respect to question no. 3 it is possibile to maintain that according 

to Article 25 of the Brussels I Regulation an Italian Court shall declare 

of its own motion that it has no jurisdiction to try the issue of validity of 

a foreign registered IP right. As far as the unregistered IP rights are concerned, 

then the decision on the validity raised as “a preliminary question” 

would have an inter partes effect. 

Finally, it is important to highlight that in Italy the majority of the 

scholars criticize the ECJ GAT judgment due to its “excess of 

territoriality”. 132 

128 Cass. 3657/89, cit., 224. 

129 See Trib. Milano, 10 December 2007, cit., p.1105; Trib. Milano 23 May 2002, loc. cit. n. 66, at p. 

18, p. 911. 

130 See the judgment aforementioned of the court of first instance of Milan of August the 6 th 2008, 

cit.; Tribunale di Milano, 29 March 2005, cit., 640; Tribunale di Roma, ordinanza 1February 2000, 

cit., p. 870; Trib. di Brescia, 11 November 1999, cit., p.505. 

131 See for all Trib. Milano, spec. section, 29 March 2005, cit., p. 641. 


18, passim. Contra see M. FRIGO, loc. cit. n. 60, p. 17.



Case 3 Consolidation of Proceedings 

In the third case at stake A is a holder of identical patents in countries X, 

W, Y and Z. B, C and D are competitors of A and are located in 

countries X, Y and Z respectively. A finds that B, C and D infringe its 

patents in countries X, Y and Z. A institutes patent infringement 

proceedings against alleged infringers before the courts of countries X, 

Y and Z. A‟s main place of business is in country W; due to high 

litigation costs A seeks the consolidation of claims forum of country W. 

A first question then arises if, assuming that the court of country W is 

an Italian court, it would have jurisdiction to join claims against 

defendants B, C and D. 

A second question then arises whether the decision of the Italian court 

would differ if A was a licensor and the claims were raised against 

licensees B, C and D on the ground of the infringement of a contract. 

A third question connected to the second one arises if assuming that B, 

C and D are members of a group of a corporation and take identical 

steps in infringement of A‟s patents, A seeks to consolidate the 

proceedings before a court of country X where the coordinator of 

infringing activities has its main place of business, the court of country 

of X is an Italian court it would (and under what conditions) consolidate 

the proceedings if it was to decide upon the request of A. 

A fourth question always connected to the second question abovementioned 

arises if the decision would change where B, C and D raised 

counterclaims that A‟s patents are invalid. 

The relevant rules to answer these questions are the following. (i) 

Article 2 of the Brussels I Regulation, and Article 6.1 of the same 

Regulation 133 . (ii) Also, it is relevant to remember that the ECJ with the 

aforementioned Roche decision established that Article 6.1 of the 

Brussels Convention, now Article 6.1 of the Brussels I Regulation, 

“must be interpreted as meaning that it does not apply in European 

patent infringement proceedings involving a number of companies 

established in various Contracting States in respect of acts committed in 

one or more of those States even where those companies, which belong 

to the same group, may have acted in an identical or similar manner in 

accordance with a common policy elaborated by one of them”. Thus, 

the ECJ maintained that there is no risk of irreconcilable judgments 

resulting from separate proceedings, and therefore that they could not 

be connected ex Article 6.1, where the IP rights at stake pertain to 

133 According to which “a person domiciled in a Member State may also be sued: / 1. where he is one 

of a number of defendants, in the courts for the place where any one of them is domiciled, provided 

the claims are so closely connected that it is expedient to hear and determine them together to avoid 

the risk of irreconcilable judgments resulting from separate proceedings.



different States and therefore are different (albeit they are granted by the 

same organism and are related to the same invention, like it happens 

with the European patent), and also where the multiple defendants are 

different companies (albeit they belong to the same group or may have 

acted in an identical or similar manner in accordance with a common 

policy elaborated by one of them). (iii) Moreover, it is important to 

remember the Italian case-law. As for patents, the Italian case-law even 

before the ECJ Roche decision interpreted and still interprets Article 6.1 

of the Brussels I Regulation in a restrictive way, analogous to the 

interpretation of this norm supported by the ECJ Roche judgement. 134 

By contrast, with respect to trademarks an Italian decision after the 

Roche judgement interpreted Article 6.1 of the Brussels I Regulation in 

a broad way, and as such accepted to join claims related to the 

ownership of an Italian and a US trademark 135 . 

In this context, the answer to the first question here raised is that an 

Italian Court would not have jurisdiction to join claims against 

defendants B, C and D since the ECJ excluded this possibility with the 

Roche decision interpreting Article 6.1 of the Brussels I Regulation. 

The answer to the second question is uncertain since there is no 

Community or Italian case law on the point. Indeed, the ECJ examined 

similar cases with the Roche decision, but the decision concentrated 

itself only on the IP rights infringement claims and did not enter at all in 

the contractual issues. In any case, it would be possible to maintain that 

the ECJ decision should not be extended to the contractual claims here 

in question, since the Roche decision poses exceptional limits on the 

general criterion of the forum connexitatis; that moreover go clearly against 

the procedural efficiency ratio. Thus, the Roche decision shall be 

interpreted restrictively and not extended to contractual claims as the 

ones analyzed here. 

The answer to the third question is that an Italian Court would not have 

jurisdiction to join claims against defendants B, C and D since the ECJ 

excluded this possibility with the Roche decision interpreting Article 6.1 

of the Brussels I Regulation. 

There is no need to answer the fourth question since the answer of the 

previous question is negative. 

Finally, it is important to highlight that in Italy the majority of the 

scholars criticize the ECJ Roche judgment due to its excess of 

territoriality. 136 

134 See Trib. Milano 23 May 2002, loc. cit. n. 66, at p. 18, p. 912; Trib. Milano, 24 January 2004, cit., 

p.788. 

135 See Trib. Ancona, 17 October 2008, forthcoming in RDIPP. 


18, passim.



Case 4 Choice of Court 

In the fourth case addressed here A holds a bundle of patents in 

different countries and entered into a non-exclusive license agreement 

with B pursuant to which B received a license to make, use or offer for 

sale and otherwise dispose licensed products. B paid the initial license 

fee but later refused to pay other fees arguing, inter alia, that its products 

do not fall under the scope of the licensed patents. Thus, A filed a suit 

against B seeking patent infringement damages and refers to the choice 

of forum clause which the parties agreed upon in the license agreement. 

B objected to the enforcement of such a choice of forum clause arguing 

that the issue is related to foreign patents and thus the asserted choice 

of court clause is not enforceable. 

A first question arises whether assuming that A and B are not Italians 

and do not have any place of business in Italy, such a choice of court 

clause of the license agreement would be enforceable in Italy. 

The second question that arises is whether the decision would differ if 

parties made (new) choice of court agreement at the time when the 

dispute arose. 

The third question that arises is whether the Italian court would enforce 

an exclusive choice of court clause if the defendant raised a counterclaim 

that patents are invalid. 

The fourth question that arises is whether the Italian court would assert 

jurisdiction if the choice of court agreement was made in patent 

infringement proceedings. 

The fifth question that arises is whether a Parties‟ arbitration agreement 

would be enforceable under the Italian law and whether the arbitration 

tribunal could decide upon the validity of intellectual property rights and 

what would be the legal effects of such decision. 

In order to answer these questions the following rules are relevant. (i) 

Article 23 of the Brussels I Regulation 137 , and Article 24 of the same 

137 According to which “1. If the parties, one or more of whom is domiciled in a Member State, have 

agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes 

which have arisen or which may arise in connection with a particular legal relationship, that court or 

those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed 

otherwise. Such an agreement conferring jurisdiction shall be either: / (a) in writing or evidenced in 

writing; or / (b) in a form which accords with practices which the parties have established between 

themselves; or / (c) in international trade or commerce, in a form which accords with a usage of 

which the parties are or ought to have been aware and which in such trade or commerce is widely 

known to, and regularly observed by, parties to contracts of the type involved in the particular trade 

or commerce concerned. /2. Any communication by electronic means which provides a durable 

record of the agreement shall be equivalent to "writing". / 3. Where such an agreement is concluded 

by parties, none of whom is domiciled in a Member State, the courts of other Member States shall 

have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. / 

4. The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall



Regulation 138 ,.(ii) Moreover, it is relevant to remember that 2 new 

provisions were recently inserted in the IP Italian code: Article 122 par. 

1, according to which the intervention of the General Prosecutor in IP 

rights proceedings is not anymore necessary when these proceedings are 

started by private persons; and Article 134 par. 2, which permits the 

arbitration proceedings with respect to unfair competition and IP rights, 

without limits 139 . (iii) Also, it is relevant to remember the Italian caselaw 

on the point. First, this case-law maintains that whenever the issue 

at stake is the efficacy of a license agreement or of a license agreement 

termination, rather than the validity of the licensed trademark, Article 

16.4 of the Brussels convention (now Article 22.4 of the Brussels I 

Regulation) does not come into effect, with the consequence that the 

competent jurisdiction is the court that had been designed as such by 

the parties by way of a choice of court agreement. 140 Also, the Italian 

case law is uniform in affirming that arbitrators can decide on the IP 

rights validity issues, with the only limitation of the effect of the 

decision on third parties: arbitral decisions on validity issues are 

enforceable only between the parties and do not have erga omnes effects. 

Conversely, scholars‟ positions on this point are discordant: according 

to a first opinion arbitral decisions on the IP right validity shall have 

only inter partes effect, 141 whereas another thesis maintains that they can 

have also erga omnes effects. 142 Hence, the Italian case-law admits that 

the parties are free to choose an arbitration proceeding for their 

contractual issues related to IP rights, and therefore a contrario can be 

interpreted as confirming that the parties are free to choose also a court 

for the same issues. 143 With respect to the issue of arbitrability of the 

validity issues of IP rights the Italian case-law seems to limit the effects 

have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if 

relations between these persons or their rights or obligations under the trust are involved. / 5. 

Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they 

are contrary to Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have 

exclusive jurisdiction by virtue of Article 22”. 

138 According to which “apart from jurisdiction derived from other provisions of this Regulation, a 

court of a Member State before which a defendant enters an appearance shall have jurisdiction. This 

rule shall not apply where appearance was entered to contest the jurisdiction, or where another court 

has exclusive jurisdiction by virtue of Article 22”. 

139 With respect to the validity of arbitration decisions in cases concerning breaches of license 

agreements related to trademarks, see Cass. Civ. 3 November 2006, in Banca dati De Jure 2009; Cass. 

civ. 19 May 1989, in Giust. civ. 1989, I, p. 2605. With respect of the non contrariety with Italian public 

policy of an arbitration decision on a trademark coexistence agreement see App. Milano 1 February 

2000, in GADI (2000) p. 740. 

140 See Trib. Roma, 22 October 1979, in GADI (1979) n. 1223, p. 767. 

141 L. MANSANI, „Arbitrabilità e privative comunitarie titolate‟, AIDA (2006) p. 21; L. Fumagalli, 

ibidem, p. 150. 

142 G. GUGLIELMETTI, „Arbitrato e diritti titolati‟, AIDA (2006) p. 12. 

143 See for instance Trib. Ancona, 17 October 2008, cit.



of the arbitration tribunal decision to the parties of the concrete case at 

stake. 144 

In this context the answer to the first question raised here is that the 

clause would be enforceable in Italy and thus an Italian Court would 

have jurisdiction to award patent infringement damages, provided that 

the choice of court clause covered also this issue and that this clause 

fulfils the formal requirements of Article 23 of the Brussels I Regulation. 

The answer to the second question is the same as the answer to the 

former question just mentioned. 

The answer to the third question is that the Italian court would enforce 

the exclusive choice of court clause even if the defendant raises a 

counterclaim that patents are invalid, where the patents are national 

patents. Where the patents are foreign patents, then (according to 

Article 23 of the Brussels I Regulation) the exclusive choice of court 

agreement could not prevail over the exclusive jurisdiction to rule on the 

validity issue provided for by Article 22 of the Brussels I Regulation. 

Hence, according to Article 23.5 “agreements […] conferring 

jurisdiction shall have no legal force if they are contrary to […] Article 

22”. 

The answer to the fourth question is that the choice of court agreement 

could also cover IP rights “pure” infringement proceedings, since 

Article 23.5 of the Brussels I Regulation excludes the efficacy of the 

choice of court agreements only with regard to “Articles 13, 17 or 21, or 

[…] 22”. Thus, this Article does not exclude the choice of court 

agreements with regard to the matters covered by other Articles, like the 

IP rights infringements that are subject to Article 2 or Article 5.3 of the 

Brussels I Regulation. 

The answer to the fifth question is that a Parties‟ arbitration agreement 

is enforceable under Italian law. This conclusion is upheld by the 2 new 

provisions recently inserted in the IP Italian code, namely Article 122 

par. 1 and Article 134 par. 2. Hence, as a consequence of those 

provisions, an Arbitration Tribunal can decide in Italy upon issues 

related to IP right 145 . 

Finally, with respect to the arbitrability of the validity issues related to IP 

rights, it is possible to make the following remarks. Notwithstanding the 

fact that the Italian statutes allow the arbitrability of IP rights validity 

144 See Arb. 25 June 2001, in Riv. Arbitrato 2003, p. 525; Arb. 23 March 1992, in GADI (1992) p. 511; 

App. Milan, 4 March 1980, in GADI (1980) p. 251; Arb. 23 June 1975, in GADI (1975) p. 473; App. 

Bologna 19 June 1959, in Riv. dir. ind. 1959, II, p. 218. See also Trib. Milan 21 April 1983, in Riv. dir. 

ind. 1984, II, p. 199 and its related comment, ibidem, p.200. 

145 With respect to the validity of arbitration decisions in cases concerning breaches of license 

agreements related to trademarks, see Cass. Civ. 3.11.2006, in Banca dati De Jure 2009; Cass. civ. 19 

May 1989, in Giust. civ. 1989, I, p. 2605. With respect of the non contrariety with Italian public policy 

of an arbitration decision on a trademark coexistence agreement see App. Milano 1 February 2000, in 

GADI (2000) p. 740.



issues, the Italian case law is still limited. Nonetheless, the statutes and 

the (scarce) case law on the point seem to lead to the conclusions that in 

Italy Article 22.4 of the Brussels I Regulation as interpreted by the ECJ 

GAT decision would not be considered by the arbitration tribunals as a 

mandatory provision 146 . Neither would it be possible to invoke the 

public policy exception to deny recognition to an arbitral decision that 

adjudicated the validity of a foreign IP rights with mere inter partes 

effects. 

Case 5 Parallel Proceedings 

In the fifth case addressed here A owns two product patents in 

countries X and Y. B is located in country Z and produces the identical 

product to that for which A has patents and exports that infringing 

product to the countries X and Y. Having found out about the 

infringing activities A files an infringement suit before the court of 

country Z. However, before A brings a suit in country Z, B launches 

actions in countries X and Y seeking declarations that B is not liable for 

the infringements of patents owned by A. 

The first question that arises is whether assuming that the court of 

country Z is an Italian court, what procedural steps would it take having 

regard pending proceedings in countries X and Y. 

A second question that arises is whether the decision of a court of 

country Z would be different if the dispute was related to intellectual 

property rights that are not subject to registration. 

The third question that arises is what procedural steps the court in 

country Z would take if B brought a suit before a court of a third 

country W challenging the validity of patents in countries X and Y. 

The rules relevant to answer these questions are Article 27 of Brussels I 

Regulation 147 , Article 29 of the same Regulation 148 , Article 30 of the 

same Brussels I Regulation 149 , Article 7 of the Italian statute on private 

146 On the relation between mandatory provisions and arbitrations in general see RADICATI DI 

BROZOLO, „L‟arbitrage international et les règles impératives de fond‟, 315 Recueil des Cours (2005). 

147 According to which “1. Where proceedings involving the same cause of action and between the 

same parties are brought in the courts of different Member States, any court other than the court first 

seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first 

seized is established. / 2. Where the jurisdiction of the court first seized is established, any court 

other than the court first seized shall decline jurisdiction in favor of that court”. 

148 According to which “where actions come within the exclusive jurisdiction of several courts, any 

court other than the court first seized shall decline jurisdiction in favor of that court”. 

149 According to which “for the purposes of this section, a court shall be deemed to be seized: / 1. at 

the time when the doc. instituting the proceedings or an equivalent doc. is lodged with the court, 

provided that the plaintiff has not subsequently failed to take the steps he was required to take to 

have service effected on the defendant, or / 2. if the doc. has to be served before being lodged with 

the court, at the time when it is received by the authority responsible for service, provided that the 

plaintiff has not subsequently failed to take the steps he was required to take to have the doc. lodged 

with the court”.



and procedural international law 150 , and Article 8 of the Italian statute 

on private and procedural international law 151 . (ii) Also, the case-law 

relevant to answer the same question posed here is the following. First, 

the ECJ with the Overseas Union decision 152 established that Article 21 

of the Brussels Convention, now Article 27 of the Brussels I Regulation, 

shall be interpreted in the following sense: “without prejudice to the 

case where the court second seized has exclusive jurisdiction under the 

Convention and in particular under Article 16 thereof, Article 21 of the 

Convention must be interpreted as meaning that, where the jurisdiction 

of the court first seized is contested, the court second seized may, if it 

does not decline jurisdiction, only stay the proceedings and may not 

itself examine the jurisdiction of the court first seized”. Second, the ECJ 

with the Tatry decision 153 established that Article 21 of the Brussels 

Convention, now Article 27 of the Brussels I Regulation, shall be 

interpreted in the following sense: “on a proper construction of 

Article 21 of the Convention, an action seeking to have the defendant 

held liable for causing loss and ordered to pay damages has the same 

cause of action and the same object as earlier proceedings brought by 

that defendant seeking a declaration that he is not liable for that loss”. 

In this normative and jurisprudential context in order to answer the first 

question raised here it is necessary to distinguish between two different 

hypothesis. First, where the country X and Y are EU Member States, 

according to the ECJ Tatry decision an Italian court indicated as the 

court of country Z would “stay its proceedings until such time as the 

jurisdiction of the court” of countries X and Y, in hypothesis “first 

seized is established. / 2. Where the jurisdiction of the court first seized 

is established” the Italian court would “decline jurisdiction in favor of”. 

Second, where the courts of countries X and Y belong to not EU States, 

according to the unanimous Italian case law a proceeding where the 

plaintiff seeks the defendant to be held liable for causing loss and 

ordered to pay damages has the same cause of action and the same 

150 According to which “1. Where, during a proceeding, an objection is raised in relation to the prior 

existence of a question pending between the same parties, having the same object and being based on 

the same grounds, before a foreign judge, the Italian judge shall stay the proceeding if he thinks that 

the foreign judgement may produce effects within the Italian system. If the foreign judge declines 

jurisdiction or if the foreign judgement is not recognized by the Italian legal system, the proceeding 

started in Italy shall continue, subject to their resumption at the request of the relevant party. / 2. 

The law of the State in which the proceeding takes place shall determine the existence of a suit 

pending before a foreign judge. / 3. In the event of a prior suit pending abroad, the Italian judge may 

stay the proceeding if he thinks that the foreign judgement may have an effect on the Italian legal 

system”. 

151 According to which “Article 5 of the Italian code of civil procedure shall apply for determining 

Italian jurisdiction. However, jurisdiction exists if the facts and the rules determining it supervene in 

the course of the proceeding”. 

152 ECJ, Case C-351/89 Overseas Insurance v. New Hampshire Insurance[1991] ECR I-3317. 

153 ECJ, Case C-406/92 Tatry v. Maciej [1994] ECR I-5439.



object as earlier proceeding brought by that defendant seeking a 

declaration that he is not liable for that loss. 154 

The answer to the second question is negative, the decision would not 

be different. 

The answer to the third question is that no matter if the country W is or 

not an EU Member State: according to the ECJ Overseas Insurance 

decision or, respectively to Article 7 of the Italian PIL Statute, the 

Italian Court could not stay its proceeding. 

Case 6 Principle of Territoriality (Choice of Law) 

In the sixth case posed here A owns a patent over an engine in country 

X. B produces separate parts of the patented engine and exports them 

separately to its customers in countries Y and Z. Customers of B can 

easily assemble the parts of the patented engine in a very short time. 

Having found out about B‟s activities, A files a suit in country X 

requesting an injunction and recovery of damages for patent 

infringement. B argues that the export of separate parts of an invention 

does not amount to patent infringement and that the patent statute of 

country X does not extend to activities abroad. 

The first question that arises is whether, assuming that the court of 

country X is an Italian court, it could apply the patent statute for 

allegedly infringing acts occurring in country Z. 

The second question that arises is whether, assuming, firstly, that the 

claim for the infringement of patent granted in country X is brought 

before the court of country Z and, secondly, that the court of country Z 

is an Italian court, the court could apply the patent statute of country X 

for allegedly infringing acts that occur in country Z. 

The relevant rules to answer these questions are the followings. (i) 

Article 8 of the EC Rome II Regulation 155 , Article 54 of the Italian PIL 

statute 156 . (ii) Also, the Italian case law is relevant to address the 

questions raised here. This case-law applies always the lex loci protectionis, 

154 See the case law references in F. M. BUONAIUTI, op. cit. n. 43, at. p. 13. 

155 According to which “1. The law applicable to a non contractual obligation arising from an 

infringement of an intellectual property right shall be the law of the country for which protection is 

claimed. / 2. In the case of a non-contractual obligation arising from an infringement of a Unitary 

Community intellectual property right, the law applicable shall, for any question that is not governed 

by the Community instrument, be the law of the country in which the act of infringement was 

committed. / 3. The law applicable under this Article may not be derogated from by an agreement 

pursuant to Article 14”. 

156 On “Rights relating to intangible assets”, according to which “the rights relating to intangible 

assets shall be governed by the law of the State in which they are used”. According to a minority 

opinion, then, the applicable law should be determined according to Article 62 of the same Italian 

PIL statute (according to which “1. Liability for unlawful acts is governed by the law of the State 

where the event occurred. Nevertheless, the injured person may demand the application of the law of 

the State where the fact which caused the damage occurred. / 2. If the unlawful act involves only 

persons who are citizen of the same State and reside in it, the law of such State applies”.



but reaches this result in different ways. In one single occasion the 

Italian case law had to adjudicate foreign IP rights infringements and 

therefore applied the foreign lex loci protectionis by referring itself 

explicitly to Article 54 of the Italian statute of private international law. 

157 . In other occasions, the Italian case law did not have to adjudicate 

foreign IP rights infringements, but was asked to adjudicate Italian IP 

rights infringement cases. Therefore it applied Italian law, without 

mentioning any specific rule of conflict of laws due to coincidence 

between forum and jus. 158 Many decisions decline the Italian jurisdiction 

with respect to claims of European patent foreign portions infringement 

that allegedly takes place abroad. In those cases, among the reasons to 

decline the jurisdiction, the courts mention also as obiter dicta the 

necessity of applying distinct laws to the different portions of the 

European patent at stake, that would render difficult and inefficient the 

proceeding. Indeed, those decisions refer themselves (not to Article 54 

of the Italian statute of private international law but) but to Article 64 of 

the EPC as the norm that demand the application of the lex loci 

protectionis. 159 In one case, 160 the court referred itself directly to the 

substantive territoriality principle in order to support the conclusion 

according to which the validity of an Italian patent shall be ruled in 

conformity with the Italian law, and no effect can be to this purpose 

given to the circumstance that a corresponding foreign patent had been 

limited for the lack of novelty. 

In this context the answer to the first question here raised is that 

according to Article 8 of the Rome II Regulation, the Italian court could 

not apply its patent statute to the activities carried out by B in countries 

Y and Z, since Italian law is not the law of the protecting country. 

The answer to the second question is negative, since according to 

Article 8 of the Rome II Regulation, the Italian court of country Z could 

not apply the patent statute of State X to the activities carried out by B 

in countries Y and Z. 

Finally, it is important to highlight that the Italian scholarship criticizes 

the excessive rigidity of Article 8 of the Rome II Regulation. The norm 

result unbalanced, particularly at detrimental of the principle of party 

autonomy (banned even regarding the remedies available once the 

infringement has been determined). 161 

157 See Trib. Ancona, 17 October 2008, cit. 

158 See for instance Trib. Milano, 6 August 2008, cit, passim. 

159 In this sense see Trib. Milano 23 May 2002, loc. cit. n. 66, at p. 18, p. 912; Trib. Milano, 24 

January 2004, cit., p.788. 

160 Trib. Bologna, 13.12.2000, (ord.), in Giur. It. 2002, p.333. 

161 See for instance N. BOSCHIERO, loc. cit. n. 90, at p. 23, p. 36.



Case 7 Infringement of Intellectual Property Rights 

In the seventh case addressed here three IT students A, B and C have 

created a website which facilitates speedy exchange of digital files 

(music, videos, software etc.) among users from all over the world. After 

several months when the website became very popular A, B and C 

introduced an additional paid service: the speedy exchange of big 

capacity digital files. Although A, B and C know that some files that are 

stored in the server of their website are illegal, they do not take any 

actions to somehow prevent infringements of IP rights. Major 

international entertainment industry companies file an infringement suit 

against A, B and C requesting to close the website and pay damages. 

The first question that arises is what law would be applied by an Italian 

Court to determine the liability of A, B and C for direct infringement 

acts, assuming that this court has international jurisdiction in such a 

case. 

The second question that arises is whether the parties of the concrete 

case at stake would be allowed to agree on the applicable law 

(infringement and remedies). 

The third question that is posed here is whether the choice of law would 

differ if the claim for damages was brought against the internet service 

provider (ISP) as a secondary infringer, and whether the parties would 

be allowed to agree on the applicable law (infringement and remedies). 

The fourth question that arises here is whether the Italian court could 

decide on the ubiquitous infringement (where the infringement occurs 

in multiple places/countries) of intellectual property rights; if so, 

according to what applicable law (law chosen by the parties?); and how 

would the Italian court define ubiquitous infringement of IP rights. 

The relevant rules to answer these questions are the following. (i) First, 

it is relevant to remember Article 8 of the EC Rome II Regulation, 

already recalled. (ii) Also, it is important to remember that the ECJ has 

recently been asked to interpret Article 5.3 with particular regard to the 

infringements occurred through the internet. Thus, in the case Olivier 

Martinez, Robert Martinez v Société MGN Limited 162 the Tribunal de grande 

instance de Paris referred to the ECJ the following question “must 

Article 2 and Article 5(3) of Council Regulation (EC) No 44/2001 of 22 

December 2000 on jurisdiction and the recognition and enforcement of 

judgments in civil and commercial matters be interpreted to mean that a 

court or tribunal of a Member State has jurisdiction to hear an action 

brought in respect on an infringement of personal rights allegedly 

committed by the placing on-line of information and/or photographs 

162 Case C-278/09, in www.curia.eu.int.



on an Internet site published in another Member State by a company 

domiciled in that second State - or in a third Member State, but in any 

event in a State other than the first Member State - : On the sole 

condition that that Internet site can be accessed from the first Member 

State, / On the sole condition that there is between the harmful act and 

the territory of the first Member State a link which is sufficient, 

substantial or significant and, in that case, whether that link can be 

created by:/ - the number of hits on the page at issue made from the 

first Member State, as an absolute figure or as a proportion of all hits on 

that page, /- the residence, or nationality, of the person who complains 

of the infringement of his personal rights or more generally of the 

persons concerned, / - the language in which the information at issue is 

broadcast or any other factor which may demonstrate the site 

publisher‟s intention to address specifically the public of the first 

Member State, /- the place where the events described occurred and/or 

where the photographic images put on-line were taken, /- other 

criteria?” 

In this context, the answer to the first question raised here is that 

according to Article 8 of the Rome II Regulation, the Italian court 

would apply the law of each single State for which protection is required. 

The answer to the second question is that according to the Rome II 

Regulation neither pre-tort nor post-tort choice of law agreements are 

permitted (Article 8.3). Similarly, the parties and the courts cannot make 

a recourse to the escape clause embodied into the general rule, as Article 

4 (the Rome II‟s central provision for cases in which the parties have 

not agreed or cannot agree on the applicable law), only covers 

obligations for which the Regulation itself does not lay down “special 

rules”. Article 8 is a “special” rule expressly dictated for IP 

infringement. Consequently, the answer to the question is negative. 

The answer to the third question is analogous to the one just mentioned 

since according to Article 8 of the Rome II Regulation, the solution 

does not differ if the claim was brought against the ISP. Thus, the 

Italian court would once again not allow the parties to choose for the 

applicable law either to infringement either to damages. 

The answer to the fourth question is that the Italian courts have 

jurisdiction over infringements of foreign IPRs whenever a basis for 

jurisdiction is provided under the Convention/Regulation system, i.e., 

under the general head of jurisdiction (the domicile of defendant), or 

under special heads of jurisdiction (Articles 6.1 and 5.3). Actually, no 

market impact rule is present in the current European and Italian 

international procedural system. Indeed, the ECJ could give soon 

instruction in this regard by answering to the question referred to it in 

the above-mentioned case Olivier Martinez, Robert Martinez v Société MGN



Limited. Also, assuming that the Italian jurisdiction is grounded, 

according to Article 8 of the Rome II Regulation the Italian court would 

apply the law of each single State for which protection is required (lex 

loci protectionis), and would not allow the parties to choose for the 

applicable law either to infringement either to damages. As for the 

definition of ubiquitous infringement of IP rights, the Italian system 

does not encompass such definition and therefore an Italian court could 

eventually adopt the definition proposed either by the ALI Principles or 

by the CLIP project. 

Finally, the unconditional application of lex protections established by 

Article 8 of Rome II Regulation strikes in comparison with the several 

departures from strict territoriality proposed by the most recent soft law 

initiatives. Both the ALI Principles and the set of principles established 

by the CLIP group envision i.a. in cases where the alleged infringement 

is ubiquitous (and the laws of several States are pleaded) the possibility 

for the courts to apply to the issues of existence, validity, durations, 

attributes and infringements of IPRs and remedies, one single set of 

rules, or a small set of rules of specific States, precisely the law or the 

laws of the State or States with the closest connections to the dispute, 

supplemented by a market impact assessment. This approach, which 

takes into consideration situations regularly arising with regard to 

(copyright) infringements carried out on the internet, is pursued in 

parallel to the consolidation of territorial claims before one court, even 

in absence of an agreement by the parties. The objective of the drafters 

is to simplify the task for both parties and courts in the interest of 

efficiency. Both sets of rules seek to gain the simplification advantages 

of a single applicable law, instead of the laws of each affected State to 

the portion of infringement occurring within each State‟s borders, while 

assuring, as far as possible, compliance with the sovereignty interests 

underlying the territoriality approach. Thus, both set of rules emphasize 

the “exceptional circumstances” in which a court could override the 

general principle of the lex protectionis and provide that, whenever a court 

applies a single or reduced number of applicable law(s), the alleged 

infringer retain the right to demonstrate that his or her conduct is 

admissible with respect to a State in which the alleged activity is not 

really infringing, even if the same activity is unlawful in all the other 

States concerned. Rome II Regulation, equally, should provide for a 

more flexible solution. 163 

Case 8 Applicable Law to Initial Ownership 

163 See N. BOSCHIERO, loc. cit. n. 90, at p. 23, p. 110 ff.



In the eight case raised here, A is a foreign visiting researcher in B‟s 

laboratory. Soon after being employed, A made several significant 

inventions using the equipment of B‟s laboratory. B‟s is now making 

huge profits by granting licenses to a number of companies to use the 

inventions of A. A files a suit for compensation arguing that he is the 

initial owner of the inventions and B should not have granted licenses 

without A‟s consent. 

The first question that arises is what law would an Italian court apply to 

determine who is the initial owner of the invention, assuming that A 

files a claim before an Italian court, and whether the parties‟ choice of 

law clause concerning the right to obtain patents would be enforceable in 

Italy. 

The second question that arises is whether the decision would differ if A 

made an invention in joint collaboration with other researchers. 

The third question that arises is whether the applicable law would differ 

in case of initial authorship or initial title to trademark. 

The fourth question that arises is what law would an Italian court apply 

if A raised a claim arguing that B did not pay reasonable compensation 

for patents obtained by B in a number of foreign countries. 

In order to answer these questions the following rules come into play: 

Article 8 of the EC Rome I Regulation 164 , Article 9 of the same Rome I 

Regulation 165 , and Article 60 of the Munich European Patent 

Convention 166 . 

164 According to which “1. An individual employment contract shall be governed by the law chosen 

by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of 

depriving the employee of the protection afforded to him by provisions that cannot be derogated 

from by agreement under the law that, in the absence of choice, would have been applicable pursuant 

to paragraphs 2, 3 and 4 of this Article. / 2. To the extent that the law applicable to the individual 

employment contract has not been chosen by the parties, the contract shall be governed by the law of 

the country in which or, failing that, from which the employee habitually carries out his work in 

performance of the contract. The country where the work is habitually carried out shall not be 

deemed to have changed if he is temporarily employed in another country. / 3. Where the law 

applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law 

of the country where the place of business through which the employee was engaged is situated. / 4. 

Where it appears from the circumstances as a whole that the contract is more closely connected with 

a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply”. 

165 According to which “1. Overriding mandatory provisions are provisions the respect for which is 

regarded as crucial by a country for safeguarding its public interests, such as its political, social or 

economic organization, to such an extent that they are applicable to any situation falling within their 

scope, irrespective of the law otherwise applicable to the contract under this Regulation. / 2. Nothing 

in this Regulation shall restrict the application of the overriding mandatory provisions of the law of 

the forum. / 3. Effect may be given to the overriding mandatory provisions of the law of the country 

where the obligations arising out of the contract have to be or have been performed, in so far as 

those overriding mandatory provisions render the performance of the contract unlawful. In 

considering whether to give effect to those provisions, regard shall be had to their nature and 

purpose and to the consequences of their application or non-application”. 

166 According to which “(1) The right to a European patent shall belong to the inventor or his 

successor in title. If the inventor is an employee the right to the European patent shall be determined 

in accordance with the law of the State in which the employee is mainly employed; if the State in



In this framework it is necessary to highlight that the first question here 

addressed does not specify if the patent at stake is a European patent or 

not. (i) Let us assume that it is a European patent. According to 

Article 60 of the European Patent Convention in employment 

relationships the applicable law to the initial ownership issue is “the law 

of the State in which the employee is mainly employed. If the State in 

which the employee is mainly employed cannot be determined, the law 

to be applied shall be that of the State in which the employer has his 

place of business to which the employee is attached”. Thus, if the patent 

at stake is a European patent according to the European Patent 

Convention the choice of law to determine who has the right to obtain 

the patent related to the invention is not allowed, and a choice of law 

clause would not be enforced in Italy. (ii) If the patent at stake is not a 

European patent, the answer is questionable. First of all there is no 

Italian case law on the point of the applicable law to initial ownership of 

rights and works created by employees. Indeed, according to a well 

established opinion, the European Patent Convention could serve as a 

model to rely on to identify the applicable law to any employee‟s 

invention. In any case, the legal opinions diverge on the point of the 

“correct” interpretation Article 60 of the European Patent Convention. 

Hence, according to a first opinion (followed in Germany) this Article 

refers to the lex loci protectionis. By contrast, according to other (also 

Italian) authors, Article 60 of the European Patent Convention rather 

refers itself to the lex contractus. Save for the choice of law (not allowed 

by the European Patent Convention whereas permitted by the Rome I 

Regulation) the connecting factors adopted by the former are the same 

as the ones utilized by the latter: Article 60 refers to the “law of the 

State in which the employee is mainly employed. If the State in which 

the employee is mainly employed cannot be determined, the law to be 

applied shall be that of the State in which the employer has his place of 

business to which the employee is attached”. Article 8 of the Rome I 

Regulation either indicates the “law of the country in which or, failing 

that, from which, the employee habitually carries out his work in 

performance of the contract. The country where the work is habitually 

carried out shall not be deemed to have changed if he is temporarily 

employed in another country. / 3. Where the law applicable cannot be 

determined pursuant to paragraph 2, the contract shall be governed by 

the law of the country where the place of business through which the 

employee was engaged is situated.” Even if one could argue that there is 

no reason to deviate form the general rule (the law of the protecting 

countries), this specific issue (ownership of employee‟s inventions) 

which the employee is mainly employed cannot be determined, the law to be applied shall be that of 

the State in which the employer has his place of business to which the employee is attached”.



present a very strong link with the employment relationship. The 

advantage would be that (at least at EU level) this issue would be 

assessed uniformly and according to the same law designated by the 

Rome I Regulation. Moreover, the ECJ also seems to interpret the issue 

at stake in favour of the lex contractus. In the Duijnstee case the ECJ 

excluded from the scope of the exclusive jurisdiction criteria 

(Article 16.4 of Brussels convention, now Article 22.4 of the Brussels I 

Regulation) the proceedings related to the first ownership of a patent 

arising out from an employment relationship and this because this issue 

shall be determined on the basis of the “legal relationships which exists 

between the parties”, so by the lex contractus. Consequently, if the patent 

in question is not a European patent, the Italian court would apply the 

law chosen by the parties according to Article 8.1 of the Rome I 

Regulation. Therefore, the parties‟ choice of law clause concerning the 

right to obtain a patent would be enforceable in Italy. In any case, this 

law (according to Article 8) shall not “have the result of depriving the 

employee of the protection afforded to him by provisions that cannot 

be derogated from by agreement under the law that, in the absence of 

choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of 

this Article”. Thus, the mandatory rules of the forum (like the Italian 

provisions relating to the necessity of an equal remuneration for the 

employee) or of the other laws that would be applicable in the absence 

of a choice of law, can put aside the parties‟ choice of law. 

The answer to the second question is that the decision would not differ 

if A made an invention in joint collaboration with other researchers. In 

this case though, the Italian court will verify that the law indicated as the 

applicable one was effectively chosen by all researchers. In case it was 

not, then the applicable law would be determined according to Article 

8.2 of the Rome I Regulation, which will pose problems where the 

researchers employment contracts are ruled by different laws, for 

instance because the researchers do not carry out their activities in the 

same place or there are more than one place of business through which 

the researchers were engaged. In this case Article 8.4 could help 

determining the lex contractus, by allowing the court to maintain that all 

the researchers employment contracts are more closely connected with a 

same single country, for instance the one for which the IP right 

protection at stake is sought. And in any case the court will be bound by 

the mandatory rules mentioned Article 8.1 of the Rome I Regulation. 

The answer to the third question is that the applicable law would not 

differ in case of initial authorship or initial title to trademark, since the 

conclusion reached with respect to patents are generally extended by 

way of interpretation to other IP rights. However we do not have case 

law on the point. Indeed, as far as the initial authorship is concerned,



according to our legal system this right is not transferrable, therefore, it 

seems that the applicable law should be always the lex loci protectionis. As 

far as initial title to trademark is concerned, the applicable law would 

probably be always the lex loci protectionis, considered that according to 

our legal system only who uses the trademark can register it: it seems 

very uncommon that an employee can personally register a trademark 

(even though it was created by him/her) in the course of the 

employment relationship. 

The answer to the fourth question is related to the previous answers. 

Hence, if the patents are European patents the Italian court would apply 

the lex loci protectionis to the issue of reasonable compensation: 

particularly, in the case at stake, the law of each State for which the 

European patent is considered to be granted. By contrast, if the patent is 

a non European patent, then the Italian court could apply to the 

reasonable compensation issue the law chosen by the parties, unless it 

deprives the employee of the “protection afforded to him by provisions 

that cannot be derogated from by agreement under the law that, in the 

absence of choice, would have been applicable pursuant to paragraphs 2, 

3 and 4 of this Article” (as such Article 8 of the Rome I Regulation). 

Thus, the mandatory rules of the forum (like the Italian provisions 

relating to the necessity of an equal remuneration for the employee) or 

of the other laws, that would be applicable in the absence of a choice of 

law, could put aside the parties‟ choice of law. 

Finally, it is relevant to remember that the Italian doctrine highlights 

that the Rome II Regulation is not clear on the point of which should 

be the law applicable to initial ownership. The issue is not expressly 

addressed in Article 15 of the Rome II Regulation (scope of the 

applicable law). In this context, uncertainty could arise as to the law 

applicable to initial ownership, particularly in the light of the fact that 

some Member States expressly apply the lex originis to the issue of first 

ownership of copyright works. According to Article 54 of the Italian 

PIL Statute the lex loci protectionis applies to initial ownership, with the 

exception of first ownership of works created by employees, governed 

by the lex contractus. 167 

Case 9 Applicable Law to The Transfer of Rights Agreements 

In the ninth case raised here, A is a rising popular music band. After one 

of the concerts in country X, a representative of foreign recording 

167 See L.C. UBERTAZZI, Profili soggettivi del brevetto (Milan, Giuffrè 1985) p. 278; L. LIUZZO, „Titolarità 

e trasferimento del brevetto europeo‟, St. in onore di Remo Franceschelli (Milan, Giuffrè 1983), p. 518; N. 

BOSCHIERO, loc. cit. n. 34, p. 10, p. 484 ff.



company B and A orally agreed to release A‟s albums in the future. 

After the release of the debut album, B has made some arrangements of 

the debut single for the distribution of the album in country Y. A files a 

suit before a court in country X arguing that the moral right of integrity 

of a work has not been transferred and thus infringed. 

The first question that arises is whether an Italian court would enforce 

the parties‟ choice of law clause regarding the transfer of economic and 

moral rights of authors, assuming that an Italian court is a court of 

country X. 

The second question that arises is how will the court deal with the issue 

of transferability. 

The third question that arises is what would be the applicable law in a 

case where there is no choice of law made by the parties. 

In order to answer these questions the following rules come into play. 

Article 3 of the Rome I Regulation 168 , Article 4 of the Rome I 

Regulation 169 , the above-mentioned Article 9 of the Rome I Regulation 

on overriding mandatory provisions, and Article 21 of the Rome I 

Regulation 170 . 

The answer to the first question is that according to Article 3 of the 

Rome I Regulation, the Italian courts would apply the law chosen by the 

parties to the transfer of the copyright economic rights. As to the moral 

rights, the solution can vary according to their “characterization” 

operated by the court which hears the case. (i) These rights could be see 

168 According to which “1. A contract shall be governed by the law chosen by the parties. The choice 

shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of 

the case. By their choice the parties can select the law applicable to the whole or to part only of the 

contract. / 2. The parties may at any time agree to subject the contract to a law other than that which 

previously governed it, whether as a result of an earlier choice made under this Article or of other 

provisions of this Regulation. Any change in the law to be applied that is made after the conclusion 

of the contract shall not prejudice its formal validity under Article 11 or adversely affect the rights of 

third parties. / 3. Where all other elements relevant to the situation at the time of the choice are 

located in a country other than the country whose law has been chosen, the choice of the parties shall 

not prejudice the application of provisions of the law of that other country which cannot be 

derogated from by agreement. / 4. Where all other elements relevant to the situation at the time of 

the choice are located in one or more Member States, the parties‟ choice of applicable law other than 

that of a Member State shall not prejudice the application of provisions of Community law, where 

appropriate as implemented in the Member State of the forum, which cannot be derogated from by 

agreement. / 5. The existence and validity of the consent of the parties as to the choice of the 

applicable law shall be determined in accordance with the provisions of Articles 10, 11 and 13”. 

169 According to which in the absence of a choice of law ex Article 3, “2. the contract shall be 

governed by the law of the country where the party required to effect the characteristic performance 

of the contract has his habitual residence. / 3. Where it is clear from all the circumstances of the case 

that the contract is manifestly more closely connected with a country other than that indicated in 

paragraphs 1 or 2, the law of that other country shall apply. / 4. Where the law applicable cannot be 

determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country 

with which it is most closely connected”. 

170 According to which ”the application of a provision of the law of any country specified by this 

Regulation may be refused only if such application is manifestly incompatible with the public policy 

(ordre public) of the forum”.



as integral part of the copyright or as separate rights, but in each case, 

considered strictly coming into the scope of the copyright that has been 

granted. In this case, the applicable law would be the general one: the 

law of the protecting country. This choice of law solution is also 

confirmed by Article 6 bis.3 of the Berne Convention. (ii) However, 

moral rights could also be characterized as a “personality right”, linked 

to the person of the author of the work. According to this second 

classification, the applicable law would then be Article 24 of the Italian 

PIL Statute (personally rights): i.e., the law of author‟s nationality. 

According to the same choice of law rule, the consequences of an 

infringement of this “personal” right are to governed by the general law 

applicable to non contractual obligations arising out of a tort/delict 

(Article 4 of Rome II Regulation). (iii) In any case, as the moral rights 

are recognized by all national laws in order to protect the author against 

the abuse of his work, from a choice of law point of view the provisions 

on moral rights could be considered as forming part of the public policy 

of each forum, or even classified as an overriding mandatory rule, 

immediately applicable irrespective of the choice of law process ( that 

has been the approach taken by the Cass. in the very famous John Huston 

case). (iv) Finally, it is submitted that in order to define the content and 

the nature of moral rights the correct choice of law solution is to apply 

the general rule: the law of the protecting country. If this law is the Italian one, 

our court would not enforce the parties‟ choice of law regarding the 

transfer of the moral rights of the author as, according to our 

substantive law, this right is inalienable. 

The answer to this question is that if the applicable law (lex loci protectionis) 

admits the transferability of moral rights, then the Italian court would 

refuse the application of this foreign provision, considering its 

application manifestly incompatible with the public policy /‟ordre public 

of the forum (ex Article 21 of the Rome I Regulation). 171 

The answer to the third question is that the applicable law in the 

absence of a choice of law would be determined by the afore-mentioned 

Article 4.2 - 4 of the Rome I Regulation, which leaves a certain flexibility 

to the interpreter. 

Case 10 Recognition and Enforcement of Foreign Judgements 

In the tenth case addressed here, a court of a foreign country X decides 

a case between the parties A and B ruling that A is the owner of a patent 

171 On the public policy exception for moral rights see R. MASTROIANNI, op. cit. n. 86, at p. 22, p. 

403.



registered in your country. A refers to an Italian court asking to 

recognize and enforce the foreign judgment. 

The first question that arises is whether the foreign judgment 

concerning the ownership would be recognised in Italy and how the 

recognising court would assess the international jurisdiction of the 

rendering court. 

The second question that arises is whether the parties wouldn‟t be 

required to re-litigate the dispute in order to have the ownership 

decision registered in registry of a recognising country. 

The third question that arises is what procedural steps have to be taken 

to enforce the judgment in your country, assuming that the judgment is 

there recognised, and particularly whether the enforcement judgment 

would be necessary or whether it would suffice to present the original 

judgment to the enforcing authority. 

In order to answer these questions the following rules come into play. 

Article 33 of the Brussels I Regulation 172 , Article 34 173 , Article 35 174 , 

Article 36 175 , Article 41 176 , Article 42 177 , Article 43 178 , Article 64 of the 

172 According to which “1. A judgment given in a Member State shall be recognized in the other 

Member States without any special procedure being required. / 2. Any interested party who raises the 

recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures 

provided for in sections 2 and 3 of this ch., apply for a decision that the judgment be recognized. /3. 

If the outcome of proceedings in a court of a Member State depends on the determination of an 

incidental question of recognition that court shall have jurisdiction over that question”. 

173 According to which “A judgment shall not be recognized: / 1. if such recognition is manifestly 

contrary to public policy in the Member State in which recognition is sought; / 2. where it was given 

in default of appearance, if the defendant was not served with the doc. which instituted the 

proceedings or with an equivalent doc. in sufficient time and in such a way as to enable him to 

arrange for his defense, unless the defendant failed to commence proceedings to challenge the 

judgment when it was possible for him to do so; / 3. if it is irreconcilable with a judgment given in a 

dispute between the same parties in the Member State in which recognition is sought; / 4. if it is 

irreconcilable with an earlier judgment given in another Member State or in a third State involving 

the same cause of action and between the same parties, provided that the earlier judgment fulfils the 

conditions necessary for its recognition in the Member State addressed”. 

174 According to which “1. Moreover, a judgment shall not be recognized if it conflicts with sections 

3, 4 or 6 of ch. II, or in a case provided for in Article 72. / 2. In its examination of the grounds of 

jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by 

the findings of fact on which the court of the Member State of origin based its jurisdiction. / 3. 

Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be 

reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules 

relating to jurisdiction”. 

175 According to which “under no circumstances may a foreign judgment be reviewed as to its 

substance”. 

176 According to which “the judgment shall be declared enforceable immediately on completion of 

the formalities in Article 53 without any review under Articles 34 and 35. The party against whom 

enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions 

on the application”. 

177 According to which “1. The decision on the application for a declaration of enforceability shall 

forthwith be brought to the notice of the applicant in accordance with the procedure laid down by 

the law of the Member State in which enforcement is sought. / 2. The declaration of enforceability 

shall be served on the party against whom enforcement is sought, accompanied by the judgment, if 

not already served on that party”.



Italian PIL statute 179 , Article 67 of the Italian PIL statute. 180 (ii) Also, 

the afore mentioned ECJ Duinjste decision deserves to be remembered. 

According to this decision the issue related to the IP rights ownership 

does not fall into the exclusive jurisdiction ex Article 22.4 of the Brussels I 

Regulation. Hence, according to the ECJ the exclusive jurisdiction rule 

applies to proceedings “concerned with the registration or validity of 

patents”, rather than to proceedings related to IP rights infringement or 

to the determination of what party is entitled to an existing IP right on the basis of a 

previous legal relationship between the parties. This decision is important 

because among of the very limited and exhaustive number of grounds 

for refusal of the recognition listed in Articles 34 and 35 of the Brussels 

I Regulations one is of particular interest to IP matters: the breach of 

the exclusive jurisdiction rule. Indeed, according to Article 35 of the 

Brussels I Regulation, a judgment shall not be recognized if it conflicts 

with its section 6 of chapter II, namely establishing the rules on 

exclusive jurisdiction. 

In this context, the answer to the first question here raised is that the 

court of the foreign country X, did not breach Article 22.4 of the 

Brussels I Regulation, by rendering its judgement on the ownership of a 

foreign patent. Considering that the purposes of the Brussels regime is 

178 According to which “1. The decision on the application for a declaration of enforceability may be 

appealed against by either party. / 2. The appeal is to be lodged with the court indicated in the list in 

Annex III. / 3. The appeal shall be dealt with in accordance with the rules governing procedure in 

contradictory matters. / 4. If the party against whom enforcement is sought fails to appear before the 

appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) 

shall apply even where the party against whom enforcement is sought is not domiciled in any of the 

Member States. / 5. An appeal against the declaration of enforceability is to be lodged within one 

month of service thereof. If the party against whom enforcement is sought is domiciled in a Member 

State other than that in which the declaration of enforceability was given, the time for appealing shall 

be two months and shall run from the date of service, either on him in person or at his residence. No 

extension of time may be granted on account of distance”. 

179 According to which “1. A foreign judgement is recognized in Italy without the necessity of 

resorting to any proceeding when: / (a) the judge who pronounced it could take cognizance of the 

case in accordance with the principles of the Italian system on jurisdictional competence; / (b) the 

doc. introducing the proceedings was made known to the defendant in conformity with the 

provisions of the law of the place where the proceedings were held and the essential rights of defence 

were not infringed; / (c) the parties entered appearances in the proceedings in accordance with the 

law of the place where the proceedings were held or their failure to appear was declared in 

conformity with that law; / (d) the judgment became res iudicata in accordance with the law of the 

place where it was pronounced; / (e) the judgment is not in conflict with any other judgment 

rendered by an Italian judge and which became res iudicata; / (f) no proceedings are pending before an 

Italian judge for the same matter and between the same parties, which were initiated prior to the 

foreign proceedings; / (g) its provisions do not produce any effects contrary to the ordre public. 

180 According to which “1. In the event of non-compliance with or challenge to the recognition of 

foreign judgments or foreign measures of a non-contentious jurisdiction, or where enforcement is 

necessary, any concerned party may apply to the Court of Appeal of the place of implementation for 

the ascertainment of the existence of the pre-requisites for recognition. / 2. The foreign judgment or 

measure of non-contentious jurisdiction, together with the order accepting the application referred to 

in paragraph 1 above, constitute a ground for the implementation and for the enforcement. / 3. If 

the challenge occurs during a proceeding, the relevant judge shall issue his judgment with effects 

limited to that proceeding”.



to simplify the formalities governing the reciprocal recognition and 

enforcement of judgments, the principle of the automatic recognition 

and enforcement takes place in absence of grounds for refusal. Thus, 

according to the "Brussels system” the judgement shall be recognized in 

Italy, and the Italian court shall not assess the international jurisdiction 

of the rendering court. Moreover, in case where the judgement to be 

recognised falls out of the Brussels I Regulation scope and enters into 

the one of the relevant national PIL Statute, the Italian court shall assess 

the international jurisdiction of the rendering court, and recognize its 

decision only where the judge who pronounced it could adjudicate the 

case according to the same jurisdiction criteria of the ones that are 

applicable in Italy. 

The answer to the second question is negative since in order to 

recognise a foreign judgment the Italian court can never re-litigate the 

dispute (see explicitly Article 36 of the Brussels I Regulation and 

implicitly Article 64 of the Italian PIL Statute). 

The answer to the third question is that if the decision was rendered by 

a court of a EU Member State, according to Articles 41-43 of the 

Brussels I Regulation, it is sufficient to present the original judgement to 

the enforcement authority, provided that the “decision on the 

application for a declaration of enforceability may be appealed against 

by either party”. If, by contrast, the foreign judgement is not covered 

by the Community regulation, than the Italian rules apply and it is 

necessary to enforce the judgement according to Article 67 of the Italian 

PIL statute. 

Finally, it is relevant to highlight that the rules of the Italian PIL Statute 

on recognition and enforcement of foreign judgements have been 

strongly inspired by the Brussels convention, sharing the same ratio, 

namely to facilitate the free circulation of judgments, by providing a 

“parallel” almost automatic recognition mechanism and a very 

simplified procedural enforcement mechanism. Recognition is required 

for judgments that are not enforceable (i.e., those that create, establish 

or confirm the existence of legal rights or personal status). According to 

Article 64 of the Italian PIL statute a foreign judgment may be 

recognized without any special procedure and may be given the same 

effects in Italy as it has in the State in which it was rendered. This means 

that, according to Article 67 of the Italian PIL Statute, a jurisdictional 

control on the defences against the recognition is necessary only in very 

limited cases: in the event of non-compliance with or challenge to the 

recognition of foreign judgments or foreign measures of a noncontentious 

jurisdiction, or where enforcement is necessary. The Italian 

enforcement procedure, by the way, is not ex parte like it happens under 

the Brussels system; the decision is rendered in presence of both parties:



the one seeking enforcement and the party against whom enforcement 

is sought. 

Case 11 Provisional Measures and Injuntions 

In the eleventh case here raised, A owns a world-wide famous 

accessories trade mark. After finding out that B is selling fake goods 

which infringe A‟s trademark on an internet auction A files an 

infringement suit also asking the court to issue an injunction to stop 

infringing activities and seize infringing goods. 

The first question that arises is whether, assuming that both A and B are 

resident in Italy and the main infringing activities take place there, an 

Italian court would have jurisdiction to issue provisional 

measures/injunction (regarding infringing acts and counterfeited goods 

located in different countries) which would also have extraterritorial 

effects. 

A second question that arises is whether the situation would change if 

the Italian court did not have jurisdiction over the main dispute (e.g., if 

B was resident in country Y and infringing acts were made in country Y). 

The third question that arises if a court could issue an 

injunction/protective measures where the trade mark for which the 

protection is sought is registered abroad. 

The fourth question that arises is whether an Italian court would require 

the person seeking issuance of provisional measures to grant a guarantee. 

The fifth question that arises is whether an Italian court would be preempted 

from issuing an injunction if the parties had submitted the 

dispute to arbitration proceedings. 

The sixth question that arises is whether an Italian court would conceive 

of an injunction to cease as a procedural or substantive measure, if the 

claimant asked to issue such an injunction to cease infringing acts, 

The following rules are relevant to answer this question. (i) Article 31 of 

the Brussels I Regulation (according to which “application may be made 

to the courts of a Member State for such provisional, including 

protective, measures as may be available under the law of that State, 

even if, under this Regulation, the courts of another Member State have 

jurisdiction as to the substance of the matter”), and Article 10 of the 

Italian PIL statute (according to which “1. Concerning preventive 

measures, Italian jurisdiction exists where the relevant measure is to be 

implemented in Italy or where the Italian judge has jurisdiction”). (ii) 

Also, the following judicial decisions come into play. First, in its 

Judgement of 17/11/1998, Van Uden Maritime / Kommanditgesellschaft in 

Firma Deco-Line and others, 181 the ECJ stated: “3. Where the subject- 

181 ECJ, Case C-391/95 [1998] ECR I-7091.



matter of an application for provisional measures relates to a question 

falling within the scope ratione materiae of the Convention of 27 

September 1968, that Convention is applicable and Article 24 thereof 

may confer jurisdiction on the court hearing that application even where 

proceedings have already been, or may be, commenced on the substance 

of the case and even where those proceedings are to be conducted 

before arbitrators. / 4. On a proper construction, the granting of 

provisional or protective measures on the basis of Article 24 of the 

Convention of 27 September 1968 is conditional on, inter alia, the 

existence of a real connecting link between the subject-matter of the 

measures sought and the territorial jurisdiction of the Contracting State 

of the court before which those measures are sought”. Second, in its 

Judgement of 28.4.2005, St Paul Diary v Unibel, 182 the ECJ also stated 

that notion of provisional measures encompasses any measure that “is 

to be understood as referring to measures which, in matters within the 

scope of the Convention, are intended to preserve a factual or legal 

situation so as to safeguard rights the recognition of which is otherwise 

sought from the court having jurisdiction as to the substance of the 

case”. Therefore, are not to be intended as provisional measures the 

ones that “order the hearing of a witness” or that aim at the acquisition 

of evidences “for the purpose of enabling the applicant to decide 

whether to bring a case, determine whether it would be well founded 

and assess the relevance of evidence which might be adduced in that 

regard”. (iii) Moreover, the following Italian case-law is relevant to 

answer the questions here raised. According to a first decision 

provisional measures related to foreign IP rights can not have any 

extraterritorial effect, and where a validity issue of a foreign IP right is 

raised as a defence before a court competent as to provisional measures, 

this court shall stay its proceeding and defer it to the competent court ex 

Article 22.4 of the Brussels I Regulation. 183 According to another 

decision jurisdiction with respect to provisional measures that shall not 

be executed in Italy exists only if the Italian court is competent as to the 

merits. 184 In any case, where the alleged infringement takes place 

through the internet the market impact rule should apply, with the 

consequence that an Italian court can not grant a provisional measure 

that would block an US internet website to display a sign allegedly 

infringing an Italian trademark if the related products are not offered to 

commercialize or effectively commercialized in Italy. According to other 

decisions, then, jurisdiction as to the merits permit to grant cross-border 

injunctions, even in cases in which the alleged infringement took place 

182 ECJ, Case C-104/03, in www.curia.eu.int. 

183 See Trib. Di Modena, 10 November 2003 (ord.), in GADI (2003) n. 4595, p. 1203, 

184 See Trib. Roma, in AIDA (2000) p.870.



through the internet and the alleged infringing information was 

transmitted by persons and web sites located abroad. In those cases the 

Italian courts do not limit the effect of the injunction to the 

transmission of information through the internet in Italy, but simply 

order to shut down the incriminated web site as such, thus without any 

territorial limitation. 185 

In this context the answer to the first question is in the affirmative sense 

according to both Article 31 of the Brussels I Regulation and 

respectively Article 10 of the Italian PIL Statute. 

The answer to the second question is that the situation would then 

change. According to the prevailing opinion, after the ECJ judicial 

intervention in IP matters, with the two above-mentioned judgments of 

2006, under the Brussels system it is no longer possible to issue 

provisional measures/injunction with extraterritorial effects where the 

jurisdiction as to the merits is grounded on Article 5.3 or Article 6.1 of 

the Brussels I Regulation, and the foreign IP right infringement act 

occurred abroad. Thus, only the general ground of jurisdiction 

(defendant domicile ex Article 2) permit cross-border injunctions. The 

same solution follows the adoption of the relevant Italian PIL statute 

rules. Hence, according to Article 10 of the Italian PIL Statute, if the 

Italian court does not have jurisdiction on the merit, the Italian 

jurisdiction with respect to provisional measures exists only “where the 

relevant measure is to be implemented in Italy”. 

The answer to the third question is in the affirmative sense, if the 

validity issue of the trademark is not raised during the case. By contrast, 

it is still doubtful if the raising of a validity issue during a provisional 

measures proceeding requires the court that is competent to grant 

provisional measures to stay its proceeding until the court that is 

competent to adjudicate the validity issue renders its decision. The ECJ 

GAT decision did not clarify this point, and therefore it could be 

possible for the court competent to grant provisional measures to go on 

with its proceeding. 

The answer to the fourth question is negative . 

The answer to the fifth question is also negative, since according to the 

Van Uden ECJ decision Article 24 of the Brussels Convention, now 

Article 31 of the Brussels I Regulation, “may confer jurisdiction on the 

court hearing that application even where […] proceedings are to be 

conducted before arbitrators”. 

In order to answer to the sixth and last question it is necessary to 

remember that an injunction of the kind here at stake is a measure of a 

jurisdictional nature, that wants to impede the defendant to continue 

185 See Trib. Teramo (ord.) 11 December 1997, in AIDA (1998) n.549, p. 709. In the same sentense 

see Trib. Firenze, (decr.) 6 June 2006, and (ord.) 10 July 2007, unpublished.



with his/her infringing activity by obliging the defendant to adopt 

certain behaviour steps related to obligation of a non fungible nature. 

This kind of injunctions could be rendered in Italy in the course of a 

proceeding on provisional measures or even in the course of a 

proceeding on the merit. Their granting is disciplined by both 

substantive and procedural norms. Hence the aspects related to the 

timing of the asking/granting of the injunctions are ruled by procedural 

norms, whereas substantive provisions shall govern the issues 

concerning the effective existence of the right to protect (to be 

examined in a very quick way as fumus boni iuris in a provisional measure 

proceeding, or in an exhaustive way in a proceeding on the merit). 

Case 12 Securities in Intellectual Property 

In the twelfth and last case raised here, in order to get loan from Bank 

B, A decides to use intellectual property rights and royalties from those 

intellectual property rights as a collateral. A fails to repay the loan. 

The first question that arises is whether IP rights could be used as a 

collateral pursuant to the Italian law, assuming that A is a national of 

country X and B is a bank in country Y. 

The second question that arises is what law would be applied to such 

issues as the creation, effectiveness against third parties, priority and the 

enforcement of these security rights. 

The third question that arises is whether an Italian court would apply 

the same law to registered and non-registered intellectual property 

rights? 

In order to answer these questions the following rules come into play. (i) 

As for EU substantive rules, Articles 19, 23.1, 23.2, 24 and 49.3 of the 

EC Regulation on the Community Trademark, that regulate the use of 

Community trade marks as collateral. Articles 29, 33 and 34 of the EC 

Regulation on the Registered Designs, that regulate the use of 

Community registered designs as a collateral. (ii) As for Italian 

substantive rules, Articles 104, 107, 110 and 111 of the Italian Copyright 

and Related Rights Statute 22.4.1941 n. 633, which regulate the use of 

copyright as a collateral. Additionally, Article 46 of the Italian Legislative 

Decree 1.9.1993 no. 385 on Banking Law establishes a special security 

interest device that allows for the use of copyright as collateral. Articles 

63, 138 and 140 of the Italian IP Code, that regulate the use of patents 

as collateral. Articles 23, 138 and 140 of the Italian IP Code, which 

regulate the use of trade marks as collateral. Articles 22.1 and 22.2 of the 

Italian Statute 1.3.1994 n. 153 on “urgent measures in favour of the film 

industry”, that expressly contemplate the use of copyrights on films as



collateral, namely establishing that security interests must be registered 

on a specialized register managed by SIAE (the Italian Collecting Society 

for copyrights and related rights), in order to become effective against 

third parties. However, it should be noted that this Italian Statute has 

not been implemented as of yet. (iii) As for Italian Pil rules, Article 54 of 

the Italian PIL Statute designates the lex loci protectionis as the applicable 

law for most of the issues concerning both registered and unregistered 

IP rights. (iv) As for Italian case-law rules, Italian courts have seldom 

dealt with juridical issues related to security interests over IP rights. 186 

The lack of Italian case law specifically addressing the issues related to 

security interests on IP rights does not signify that these assets are never 

used as collateral. There are numerous Italian cases that evidence the use 

of IP assets as collateral. 187 

In this context the answer to the first question is therefore affirmative. 

The answer to the second question is that the applicable law is the lex 

loci protectionis. 188 

The answer to the third question is once again in the affirmative. 

Finally, it is relevant to remember that Italy is actively participating in 

the negotiations surrounding the Supplement to the UNCITRAL 

Legislative Guide on Secured Transactions dealing with security rights in 

intellectual property. 

186 The scarse existing case law has been listed and analised by A. TOSATO, „Garanzie “reali” e diritti 

IP: per un censimento dei materiali‟, Il diritto d‟autore (2009) pp.557-601. In particular, see App. Napoli, 

29 July 1904, in Riv. Dir. Comm. 1905, II, 90, concerning the valid creation of a security interest on 

trade marks; Trib. Roma 24 September 1964, in Foro Padano (1966) p. 15, in which the court assessed 

the validity of a security right over the copyrights on a film; Comm. Ricorsi 21 July 1973, in GADI 

(1973) p. 440, which examines the issue of the creation of security interests on trade marks. 

187 For instance, see Tribunale Roma 7 November 2008, forthcoming in AIDA (2010 ) with a comment 

of A. TOSATO. 

188 See S. BARIATTI, „La legge applicabile alle garanzie sui diritti di proprietà intellettuale‟, AIDA 

(2009 )pp. 89-106..

THE PROHIBITION OF AGE DISCRIMINATION IN LABOUR RELATIONS 

_____________________________________________ 

SILVANA SCIARRA * 

WILLIAM CHIAROMONTE ** 

1. Which statutory instruments addressing age discrimination 

have been enacted in your country? If none, what alternative means of 

protection are available? 

1. The prohibition of age discrimination only recently gained explicit 

importance in the Italian legal system. Even if the Republican Constitution of 

1948 did not provide for an explicit prohibition, an implicit one can be 

inferred from Constitutional norms (BONARDI 2007, 128). 

On the one hand, art. 3 lays down a general principle of equality even if 

age is not mentioned among the prohibited reasons for discrimination (The 

list does, however, include gender, race, language, religion and political 

opinion). In the last section of art. 3 we find the expression “social and 

personal condition” which, in its wider meaning, can certainly include age. 

On the other hand, art. 37, sub-section 2, provides for a principle of 

equality addressed to minors and exclusively when dealing with remuneration. 

However, case law leans towards a broader interpretation of the principle, 

applying it at least to workers between 18 and 21 years old. This is due to the 

fact that even if the age of majority has been lowered to 18 by this has never 

led to a corresponding decrease in worker protection. Furthermore, the courts 

have considered any other age differentiation illegitimate (An important case 

in this regard is Cassazione civile, sezione lavoro, 23 December 2004, n. 

23898). 

In Italy, as in other countries of the European Union, European 

sources were at the origin of explicit extension of prohibitions of 

discrimination also involving age discrimination. The Directive 2000/78/EC 

was transposed into the Italian legal system in 2003 (Legislative Decree 9 July 

2003, n. 216) with the aim of promoting equal treatment of people regardless 

of their religion, personal convictions, disability, age and sexual orientation in 

occupation and employment (art.1). The Italian implementation was unusually 

* Silvana Sciarra is Professor of Labour Law and European Social Law (Chair Jean Monnet) at the University 

of Florence 

** William Chiaromonte is Research Fellow in Labour Law at the University of Florence



rapid (it happened before the deadline set by the European legislator) but, as 

we may see later, it was characterized by the mechanical application of the 

process, with the result that the Italian provisions are exactly consistent with 

the text of the EU Directive. As has been observed, they “appear, except for 

very occasional differences, to be a slavish reproduction of communitarian 

provisions, in a domestic legal panorama which is not without its own 

provisions” (CALAFÀ 2004, 875). 

The Italian legislator modified the above mentioned Decree 216 in 

2004 (Legislative Decree 2 August 2004, n. 256) and 2008 (Decree 8 April 

2008, n. 59, transposed with modifications into Law 6 June 2008, n. 101). 

With the last intervention, Italy adapted the text of the Decree following the 

instructions of the EU Commission which had, under article 258 TFEU, 

commenced an action against Italy for failure to fulfil its obligations (n. 

2006/2441). In that case the Commission challenged some parts of the Italian 

transposition of Directive 2000/78/EC on which we shall return later. 

2. Which age groups are protected? 

2. The subjective application of the prohibition of age discrimination is 

very wide because, unlike what happens in other countries, neither the EU 

Directive, nor the Italian transposition provides a general age limit. 

Furthermore art. 3, sub-section 1, of Legislative Decree n. 216 of 2006 

specifies that the principles of equality without age distinction is applicable to 

everyone, in the private as well as in the public sector, without any kind of a 

priori restriction of the possible beneficiaries. 

3. Are there rules of preference connected to age in labour 

relations? 

3. Numerous provisions of the Italian system of labour law use age 

(alone or in relation with other conditions) as a way to differentiate the 

treatment of workers and to recognize for some categories of subjects, 

identified on the basis of age, a more favourable treatment. It should be 

assessed case by case if these provisions are lawful or whether they introduce 

discriminatory treatment. Generally, rules of preference can be found in the

Silvana Sciarra and William Chiaromonte 

The Prohibition of Age Discrimination in Labour Relations 

three fields of the access to work, working conditions and exit from the 

labour market. We will analyze each of them in paragraph 15, 16 and 17. 

4. Is age discrimination prohibited in active labour relationships 

only, or are situations outside the contractual relationship, like 

occupational pension schemes, included? 

4. The ban on age discrimination covers the conditions for access to 

employment, to self-employment or to occupation, including selection criteria 

and recruitment conditions, whatever the branch of activity and at all levels of 

the professional hierarchy, including promotion; the access to all types and to 

all levels of vocational guidance, vocational training, advanced vocational 

training and retraining, including practical work experience; the employment 

and working conditions, including dismissals and pay; the membership of, and 

involvement in, an organisation of workers or employers, or any organisation 

whose members carry on a particular profession, including the benefits 

provided for by such organisations (art. 3, sub-section 1). 

Transposing literally art. 3 of the Directive, the Decree excludes 

“payments of any kind made by state schemes or similar, including state social 

security or social protection schemes”. This distinction between the concepts 

of labour and social security represents the first evident limit to the 

functioning of the prohibition. This is important, as we will see, to assess the 

legitimacy of retirement age limits and of the provisions promoting or 

imposing early retirement. Furthermore, the Decree, making use of the means 

offered by the Directive with regard to discrimination on the grounds of 

disability and age, does not apply to the armed forces. Other exemptions are 

the differences of treatment based on nationality, the provisions and 

conditions relating to entry into and residence of third country nationals and 

stateless persons in the territory of Member States, and any treatment which 

arises from the legal status of the third-country nationals and stateless persons 

concerned. Finally the Decree does not cover public security, public order, 

crime prevention and protection of public health (art. 3, sub-section 2). 

It has been observed that the most important limit of the directive, and 

as a consequence of the Decree, is the somewhat narrow scope, limited to 

employment and working conditions (BONARDI, 2007, 132).



5. What type of contractual relationship is covered by age 

discrimination provisions? (labour relations only or also self-employed 

persons?) 

5. The application of Decree 216 includes both employment and selfemployment. 

6. What types of discrimination are prohibited (direct, indirect)? 

How are they defined? 

6. Decree 216 forbids both direct and indirect discrimination. Art. 2, 

sub-section 1, letter a, defines a direct discrimination transposing almost 

literally the Directive, which identifies it as the case where one person is 

treated less favourably than another, has been or would be treated in a 

comparable situation. The same can be said with regard to indirect 

discrimination, which is defined by the Directive as the case where “an 

apparently neutral provision, criterion or practice would put persons having a 

particular […] age, at a particular disadvantage” compared with others. 

Moreover, art. 1 of the Decree defines the so called “multiple 

discriminations” (or crossed discriminations) as a type of discrimination 

characterized by less favourable treatment of the person for more than one 

reason. The Decree in fact specifies that “the different impact that different 

forms of discrimination can have on men and women” should be taken into 

account. However the legal relevance of all possible combinations has been 

reduced to the case of crossing the gender factor with one of the other 

factors listed before (as far as our analysis is concerned, the gender factor). 

This is a highly problematic aspect of anti-discrimination law and, even 

if the situations from which multiple discrimination can stem are numerous in 

practice, the instruments to deal with them provided by Italian (but also 

European) law are still primordial and scarce. For example, we may focus on 

the transition between job and retirement, where Italian law provides different 

treatments between men and women (this is an aspect of great importance on 

which, as we will see in paragraph 18, even the ECJ gave a judgment). 

Another example is wages discrimination that can be experienced by women 

during their working careers but which can have distressing effects on their 

retirement benefits and even increase the risk of poverty.



7. Does a prohibition against harassment based on age exist? 

7. Art. 2, sub-section 3, of the Decree transposing automatically art. 2, 

sub-section 3, of the Directive, defines as discrimination harassment or 

unwanted conduct taking place with the purpose or effect of violating the 

dignity of a person and of creating an intimidating, hostile, degrading, 

humiliating or offensive environment. Furthermore, it is considered 

discriminatory to issue an instruction to discriminate against a person on the 

grounds of age. 

8. Are there exemptions from the prohibition? How are those 

exemptions defined? Are they provided for solely in statutory provisions 

or are social partners, employers, or other entities allowed to develop 

additional ones? 

9. Are there specific grounds justifying age discrimination? Do 

general grounds of justification apply to age discrimination? 

8-9. Directive 2000/78/CE allows for the justification of direct age 

discrimination. This has been criticised by some commentators (FREDMAN 

2003, 57) and obviously at the same time has influenced the transposition into 

Italian law. 

The article which takes into account direct discrimination is art. 3, subsection 

3, of the Decree, while sub-section 6 deals with indirect 

discrimination. Both the provisions deal with all the reasons for discrimination 

listed in the Decree, whereas sub-sections 4 bis and 4 ter exclusively deal with 

age discrimination. 

Art. 3, sub-section 3, of the Decree states that differences of treatment 

on the grounds of age do not constitute age discrimination (or other 

prohibited factors of discrimination) if “due to the nature of the job or in the 

context in which it is carried out it is a characteristic that constitutes an 

essential and determinant requirement of the scope of the activity itself”. 

Therefore, the provision reflected in the general clause of art. 4, sub-section 1, 

of the Directive permits unequal treatment not only with regard to the 

essential requirements of carrying out the work, but also with regard to the 

context. The concept of context definitely includes the prohibition to hire a



minor or any limitation on their working time in a position involving 

dangerous manufacturing. Nevertheless, the provision permitting unequal 

treatment on the basis of “a characteristic that constitutes an essential and 

determinant requirement of the scope of the activity itself” is limited by two 

principles governing Italian labour law, namely the principle of reasonableness 

and the principle of proportionality. Furthermore the scope of the activity 

should be lawful. 

In 2008 the Italian legislator added art. 4 bis and 4 ter to the Decree as a 

result of the action against Italy for failure to fulfil obligations commenced by 

the EU Commission, which had considered art. 6 of the Directive not fully 

transposed. The two articles permit age discrimination in the case of the 

setting of special conditions on access to employment and vocational training, 

employment and occupation, including dismissal and remuneration 

conditions, for young people, older workers and persons with caring 

responsibilities in order to promote their vocational integration or ensure their 

protection. Furthermore, they permit the fixing of minimum conditions of 

age, professional experience or seniority in service for access to employment 

or to certain advantages linked to employment; the fixing of a maximum age 

for recruitment which is based on the training requirements of the post in 

question or the need for a reasonable period of employment before 

retirement. The unequal treatment on grounds of age is allowed only if it is 

objectively and reasonably justified by a legitimate aim, including legitimate 

employment policy, labour market and vocational training objectives, and if 

the means of achieving that aim is appropriate and necessary. It is not possible 

that institutional subjects different from the legislator can introduce other 

exclusions. 

Finally art. 6 of the Decree, following literally art. 6 of the Directive, 

stresses that the differences of treatment which, even if indirectly 

discriminatory, are objectively and reasonably justified by a legitimate aim, if 

the means of achieving that aim are appropriate and necessary, are not to be 

considered discriminatory acts. 

The provisions of the Decree are characterized, especially in the 

original version, by an imprecision and technical approximation due to a lack 

of consultation with the interested stakeholders in civil society and to a 

hurried transposition (IZZI 2005, 389). This is why they should be interpreted, 

in the light of the Directive, with particular attention to the limit that the 

Directive sets to the admissibility of the prohibition of discrimination. For



example, the text of the Decree is clear when it affirms that unequal treatment 

justified by a legitimate employment policy is permitted only if the age factor 

does not favour the same group to which the provision refers, by favouring 

entry into the labour market and the protection of members of that group. 

The European legislator writing art. 6, and subsequently the Italian one, 

have not typified possible exclusions of the prohibition of age discrimination 

but have stated in a thoroughly comprehensive way that “unequal differences 

of treatment on grounds of age shall not constitute discrimination, if, within 

the context of national law, they are objectively and reasonably justified by a 

legitimate aim” and if the means of achieving that aim are “appropriate and 

necessary”. Therefore it seems preferable to read the norm as an implicit 

confirmation of the validity of the thesis that differences of treatment not 

legally justified are unjustifiable (IZZI 2005, 89). 

A part of the Italian scholarship thinks that art. 6 has the only function 

of specifying, referring to art. 4, the general limits of art. 4 itself, which would 

be already inferable (BONARDI 2007, 137). Other scholars think that the 

relation between the two articles is not that one specifies the other, but that 

the two provisions are alternative to each other (LOY 2008, 533). 

The assessment of the legitimacy of the differentiation of treatment for 

age reasons should be carried out using the criteria of strict necessity. In the 

first case where the ECJ examined age discrimination it has in fact applied the 

same narrow criteria already used with regard to gender discrimination (ECJ, 

22 November 2005, Mangold, C-144/04). This has discredited the theory that 

in the field of age discrimination there was a wide room for dispensation. 

Subsequently, however, European judges changed the dimension of this 

scrutiny using a test of reasonableness on the basis of age decisively less 

stringent than the one that can be found in the case Mangold (ECJ, 16 October 

1007, Palacios de la Villa, C-411/05). 

10.What legal consequences derive from violating age 

discrimination law? Who is entitled to bring a cause of action under the 

discrimination law? 

12.What types of proceedings are applicable for enforcing age 

discrimination provisions? (civil, criminal, or administrative 

proceedings)



10 - 12. Articles 4, 4 bis and 5 of the Decree 216 concern judicial 

enforcement of rights and the protection provided to the victims of 

discrimination. 

Firstly, art. 4 adds age discrimination to art. 15 of the Workers Statute 

(Law 20 May 1970, n. 300), which in the second sub-section orders that any 

juridical act or contract directed to discrimination on the grounds of age is 

null and void. It is useful to highlight that in art. 3 of Law 11 May 1990, n. 

108, which contains the law on dismissal, the dismissal determined for 

discriminatory reasons, amongst which age can certainly be included, is “null 

and void”, whatever the given motivation is, and has the consequence, 

whatever the number of workers employed by the employer is, of reinstating 

the worker. Moreover, the worker has a right to compensation for the 

damages caused by the unfair dismissal. Furthermore, the worker has the right 

to terminate the contract and in that case is entitled to all the existing damages 

plus a bonus amounting to 15 months’ salary. 

Focusing on the judicial procedure, the legislator of 2003 has preferred, 

even if with some differences, the extremely simple and quick procedure 

provided by art. 48 of the Law on Immigration (Legislative Decree 25 July 

1998, n. 286). According to the procedure, the discriminated person can 

initiate a lawsuit before the court where they have permanent residence and 

the law does not request any particular onus on them. Only if the worker is a 

civil servant the lawsuit should be initiated before the administrative court 

which is in this case the only one which is competent. 

The judge can issue, after a very limited number of hearings, a 

provisional judgement which has the same legal consequences as a definitive 

one. In fact it can be used by the claimant to be reinstated at work and it also 

has an effect which is comparable to the common law writ of execution. It can 

be used by the claimant to have their damages paid even if an enforcement 

procedure is necessary. This provisional judgement can be contested by the 

employer and in that case the competent judge would be the Court of Appeal. 

If the provisional judgement is not contested it becomes definitive. 

The worker has the right to defend their rights personally even if they 

have to prove the facts on which their claim is based. The judgement removes 

the effects of discrimination and even compensates for damages. In the case 

that the discriminatory treatment is considered by the judge a retaliation, the 

worker can be awarded increased damages.



Art. 4 envisages the possibility of having recourse to conciliation even if 

the Italian legislator did not seem interested in the principle of specialisation 

which is part of European Law. In the same way the Italian legislator has 

completely ignored the part of art. 9 of the Directive which provides that 

Member States should involve in the procedure the organisms which have a 

“legitimate interests in ensuring that the provisions of the Directive are 

complied with”. However, the last version of article 5 provides the right to go 

to court to numerous collective organisations which are considered qualified 

by the law. These organisations can act on behalf of the discriminated worker 

if they have been delegated to do so by the worker but the Decree permits 

their involvement in the procedure ad adiuvandum (in support of the worker). 

Art. 5, sub-section 1, deals with cases of collective discrimination. If the 

people affected by the discriminatory treatment are not immediately and 

directly identifiable, the organisations listed in the article have the right to start 

legal action. This kind of procedural substitution follows the scheme of art. 81 

of Italian Code of Civil procedure which envisages a sort of class action in 

order to protect collective interests when the victims of the discrimination are 

not identifiable concretely and immediately. This can happen theoretically 

only if the discrimination is against an indistinct group of people. 

The process identified by the legislator of 2003 has been considered 

imperfect. A part of the scholarship observed that in this system the judicial 

authority has to protect individually the discriminated person while, at the 

same time, prevent the discrimination. This has been done without any kind 

of harmonisation with the provisions for equal treatment and gender 

discrimination. The result can be, in the long run, one that could penalize the 

discriminated person and also entire categories of people which are not 

entitled to any real support by the procedural law (TORRICE 2005, 312). 

11. With whom lies the burden of proof in discrimination cases? 

11. The burden of proof in age discrimination is regulated by art. 4, 

sub-section, 4 of the Decree n. 216. The provision, which is the result of 

changes made in 2008 (Law 7 January 2008, n. 101), states that “when the 

claimant gives evidence of serious, precise and concordant facts which give 

grounds for a presumption of the existence of discriminatory acts or



agreements, it should be the respondent who has to prove that there has been 

no breach of the principle of equal treatment”. 

The necessity of a modification of the pre-existing regulation of the 

burden of proof stemmed, as we said before, from an action for failure to 

fulfil obligations started by the Commission against Italy (n. 2006/2441). The 

Commission complained about the way Italy had transposed art. 10 of the 

Directive which states that “Member States shall take such measures as are 

necessary, in accordance with their national judicial systems, to ensure that, 

when persons who consider themselves wronged because the principle of 

equal treatment has not been applied to them establish, before a court or 

other competent authority, facts from which it may be presumed that there 

has been direct or indirect discrimination, it shall be for the respondent to 

prove that there has been no breach of the principle of equal treatment”. The 

opinion of the Commission was that, transposing the Directive, Italy did not 

properly regulate the burden of proof. The former version of art. 4, in fact, 

requested the claimant to show serious, precise and concordant elements of 

evidence which should be assessed by the judge on the basis of art. 2729 of 

the Italian Civil Code. The fact that the claimant had to show these very 

detailed elements of evidence was considered by the Commission an excessive 

burden when the inspiration of the Directive is to simplify access to justice for 

the discriminated worker. The Commission also pointed out that in the Italian 

system numerous examples of procedures in which the burden of proof is 

transferred to the respondent exist. 

13. Is a government agency responsible for enforcing age 

discrimination provisions? What competences are assigned to that 

agency? 

13. Directive 2000/78/CE does not oblige Member States to create 

bodies to promote equal treatment. This is an evident difference from what is 

requested by other EU Directives such as Directive 2000/43/CE on the 

implementation of the principle of equal treatment between persons 

irrespective of racial or ethnic origin (art. 13); Directive 2002/73 on the 

implementation of the principle of equal treatment for men and women as 

regards access to employment, vocational training and promotion, and 

working conditions (art. 8 bis); and Directive 2004/113 on the implementation 

of the principle of equal treatment between men and women in access to and



supply of goods and services (art.12). As a consequence, Italy has never 

created any organization entitled to the enforcement of age discrimination 

provisions. 

14. Are unions, interest groups or non-governmental 

organizations provided the right to bring suit to enforce age 

discrimination provisions? 

14. As we have highlighted answering questions number 8 and 9, the 

promulgation of Decree 216 was not preceded by any kind of involvement or 

consultation with the interested stakeholders in civil society. Obviously this is 

one of the reasons why in the original version of art. 5 no participation of the 

collective organization in the right to go to court in the field of age 

discrimination was recognised. However, today direct involvement of trade 

unions, associations, or organizations which are representative of the impaired 

interest is recognised. It is also recognised that these organisations have the 

right to start a collective legal action (GUARRIELLO, 2007, 519). 

The Directive recognizes that organizations, associations or other legal 

entities have the function of promoting equal treatment through disseminating 

information, the spreading of knowledge and good practice, promotion of 

positive action and networking. 

However, the Italian legislature omitted the provisions concerning 

positive action, dissemination of information at the workplace or throughout 

the territory, dialogue with NGOs and social dialogue leaving all the 

provisions of a promotional character contained in the Directive without 

enforcement. The choice has the odd consequence that all the burden of the 

provisions on antidiscrimination is on the judicial system and there is no 

involvement of institutional and social actors (GUARRIELLO 2007, 521). 

15. Effects of prohibiting age discrimination on the recruitment 

process (exemplary headings for orientation purposes) 

- formulation of employment offers/ advertisements 

- application files 

- job interviews 

- guidelines for selection



- notice of refusal 

15. The first and most important age limit existing in Italian Labour 

Law is the one about access to work. 

The requirement of a minimum age to access to work has been 

modified numerous times over the years. In 2006 the legislature indicated two 

requirements: a minimum age (the minor has to be at least 16 years old) and 

the exemption from compulsory education (now a period of schooling of 10 

years is mandatory) (art. 1, sub-section 622, Law 27 December 2006, n. 296). 

The case of other limits that are set to access specific kind of jobs is 

different. With regard to public administration, the participation in public 

competition for positions in the administration is not subject to any age limit 

“with the exclusion of dispensations contained in the regulations on single 

administrations linked to the nature of the service or objective necessities of 

the administration” (art. 3, sub-section 6, Law 15 May 1997, n. 127). Often in 

practice regulations of public competitions require a minimum age which is 

lower than 18 years old and a part of the scholarship is doubtful on the 

legitimacy of this kind of provision. On the same wavelength are those who 

doubt the legitimacy of the provisions setting a maximum age to access certain 

jobs (as it is, for example, for the notary public competition, an exam that can 

be sat only by people younger than 40 years old). 

It is also worth describing the measures aimed at the promotion of 

specific categories of people or specific age groups through special labour 

contracts or incentives. They are labour policy instruments which are 

exempted by Decree n. 216 so that special conditions to access to work are 

considered a legitimate differentiation of treatment for “young people, elderly 

workers, workers with caring responsibilities, with the aim of favouring access 

to work or protecting them”. The traditional link between youth employment 

and training is expressed by the so called “special contract with a mixed 

cause”, as it has been defined again by Legislative Decree n. 276 of 2003: the 

apprenticeship contract (“contratto di apprendistato”), the vocational 

apprenticeship contract (“contratto di formazione e lavoro”, which can 

regulate only employment relationships with the public administration) and 

the access-to-work contract (“contratto di insertimento”). Beside these 

contracts, Decree n. 276 introduced new kinds of contract reserved for 

specific categories of people also identified on the basis of their age. 

These new contracts of employment are intended for the category of 

people which is defined by European Law as “disadvantaged workers”



(Regulation 2204/2002/EC), which includes young people less than 25 years 

old or who have completed their full time education less than 2 years 

previously and who have not yet obtained a regular job. Furthermore, 

included in the concept of “disadvantaged workers” are people older than 50, 

without a job or about to lose one. In all these cases the special personal 

situation of the worker or other objective factors justify state aid, if in 

compliance with the objective conditions provided by the regulations. 

It is thus necessary to describe some of these specific cases in order to 

assess their compatibility with European law. The Commission has in fact to 

assess the compatibility of State aid in the form of wage subsidies pursuant to 

art. 6(1) (h) and (i) of the Commission Regulation (EC) n. 800/2008 of 6 

August 2008 declaring certain categories of aid compatible with the common 

market in application of art. 87 and 88 of the Treaty. In 2009 a 

Communication containing the guidelines for the assessment has been 

published (Communication from the Commission, Criteria for the compatibility analysis 

of state aid to disadvantaged and disabled workers subject to individual notification, 

Official Journal C 188 of 11.8.2009, 6). 

The flexible forms of employment provided by the Legislative Decree 

n. 276 of 2003 and aimed at encouraging the hiring of disadvantaged workers 

include the following: 

- Access-to-work contracts (art. 54 ff.) are employment schemes with 

financial incentives targeted at disadvantaged groups. This type of contract 

replaced the old work training contract. It is intended to promote individual 

plans for the adaptation of the vocational skills of the worker to a specific 

workplace in order to facilitate access or re-entry to the labour market for the 

following categories: young people between 18-29 years old; those in longterm 

unemployment between the ages of 29 and 32; unemployed persons over 

the age of 50; workers who intend to return to employment but have been 

unemployed for more than two years; women of all ages resident in a 

geographical areas with a low female employment rate and people with a 

recognized serious physical, mental or psychological disability. The contract is 

non-renewable and may last from six to 18 months (or 36 months in the case 

of severe physical, mental or psychological disability). Article 59 provides that 

“during the access-to-work relationship, the category to which the worker is 

assigned cannot be inferior, by more than two levels, than the category that 

the national collective agreement gives to the worker employed in tasks or



functions which require a kind of qualification which corresponds to the one 

used in the access-to-work project which is the content of the contract”. 

- Art. 34 regulates the so called intermittent work, a legal arrangement that 

can have the form of a fixed-term contract or open-ended contract, whereby 

the employer can request that work is performed in an intermittent or 

discontinuos way. This is another contract intended to promote the 

employment of groups with particular difficulties in terms of labour market 

access. It can be applied in any case to persons up to the age of 25 and over 

the age of 45, even if retired. 

- Art. 70 regulates occasional job performances, which are occasional 

working activities given in the framework of specific sectors by specific people 

identified by the law. Between them the Decree includes people younger than 

25 years regularly enrolled in an undergraduate or graduate course or at school 

working on Saturday, Sunday and during holidays and retired people in every 

sector and without working time limits. 

- Finally, art. 13, “with the objective of letting disadvantaged workers 

enter or re-enter the market, through active policies and workfare”, allows the 

agencies authorized to act as intermediary between the worker and the user, to 

waive the principle of equal treatment with workers who have a direct 

contract with the user. This is allowed “only if there is an individual plan for 

the access or re-access of the worker to the labour market which contains 

appropriate training measures, involving a tutor of proven professional skills 

and only in the case that the contract between the worker and agency lasts 

more than 6 months.” 

The essence of flexible contractual schemes is to create employment 

possibilities albeit of a discontinuous nature, in favour of individuals who are 

entering the labour market or who have difficulty in maintaining stable 

employment. Such a goal is achieved by means of financial incentives for 

employers, but also lowering the requirements for working conditions for 

those in disadvantaged groups, which resulted in strong criticism of this 

legislative reform (SARGEANT 2008). 

The prohibition of age discrimination does not seem compatible with 

the provision which permits worse treatment of workers of a certain age in



intermittent work or in the access-to-work contract, even if the law also 

requires a qualified condition of unemployment. It is not enough, in fact, that 

the scope pursued by the legislator is legitimate (as it certainly is in the case of 

the access-to-work of disadvantaged workers), but, as underlined by the ECJ, 

it is necessary that the instruments used are appropriate and necessary. In 

both cases, being short term contracts, the norms examined do not seem to 

offer sufficient protection, also considering what the ECJ stated in Mangold (in 

which the liberalization in Germany of short term employment for older 

workers who would have been excluded by a stable job was considered 

discriminatory). Moreover in both cases the generality of the individual plan 

of access or re-access to the job market and of the training interventions leave 

room for doubts about the adequacy of the measures with regard to the scope 

pursued. 

It is necessary, finally, to say something more about contracts with a 

training scope, and in particular the new apprenticeship contracts regulated by 

artt. 47 ff. of the Decree. In this case the reference to age is in fact only 

indirect, in the sense that a specific contractual condition is reserved for 

people having specific characteristics that can be linked to age only in an 

indirect way. The condition of worse protection both legal and economic is 

not linked to age, but to a contractual type called “mixed-cause” which has the 

aim of promoting access of a certain age range to the job market. The lower 

wage of the workers employed through traineeship contracts intended for 

young people may appear fair because it balances the “experience benefits” 

offered by the employer. However it is debatable if the norm which forbids 

the conclusion of this kind of contractual arrangement only because the 

person does not have the legal age requirement is compatible with the 

provisions of the Decree n. 216 of 2003. 

16. Effects of prohibiting age discrimination on working 

conditions (exemplary heading for orientation purposes) 

- Composition of remuneration, partly depending on age or 

length of service 

- seniority – related bonus payments 

- length of vacation, depending on age 

- privilege to demand shorter working hours, depending on age



- maintenance of contractual remuneration despite job transfer 

due to age-related diminishing capabilities 

- further education on the job available 

16. With regard to working conditions, remuneration is the aspect that 

gives rise to problems of compatibility with the prohibition of age 

discrimination. Very often, in fact, the differentiations of remuneration 

between old and less old workers are considered legitimate, and not because 

the former are considered less productive; often, in fact, older workers are the 

most expensive because their remuneration is connected with seniority or 

length of service. For these reasons they are the first to be laid off in case of 

downsize. 

Anyway, the absolute starting point is art. 37 of the Italian Constitution 

which, as we said, does not allow differentiation in the remuneration of 

workers who are minors giving them the right to equal remuneration for jobs 

of equal value, where equality should be defined as parity of duties and not as 

parity of the job outcome. The Italian Corte di Cassazione, the court of final 

jurisdiction, used an analogy to state that differentiations in remuneration 

linked to other ages cannot be considered legitimate (Cassazione civile, 

sezione lavoro, 23 December 2004, n. 23898). 

The lower productivity of older workers (even if the same reasoning 

can be used with regard to young workers), cannot constitute a sufficient 

reason to justify a worse treatment with regard to other ages. 

From another perspective, the adaptation of the wage to seniority may 

be considered a form of age discrimination, this time against the younger 

workers (BLANPAIN, 2005, 942). In fact, this case may be a form of direct 

discrimination that could be realized even when the employer sets a level of 

requirements that cannot be met by any young person. With the aim of 

justifying the different wage treatment of senior workers it is necessary to 

asses case by case what the objective pursued is and whether it is appropriate 

and necessary. For example, it should be demonstrated that the performing of 

a certain activity enabled the worker to acquire some sort of skill that 

otherwise they would not have acquired. 

Attention should be paid to the case of automatic wage increases linked 

to seniority which, being linked only to the chronological progression of the 

job relationship, are acknowledged automatically without any assessment of 

the competencies, aptitudes and professional skills of the worker. This



characteristic has recently made questionable the rightfulness of automatic 

wage increases, and this is why some collective agreements have established 

the inadmissibility of automatic wage increases (GALANTINO, 2005, 595). 

17. Effects of prohibiting age discrimination on termination of 

employment (exemplary headings for orientation purposes) 

- dismissal protection due to old age or length of service 

- age-dependent loss of capability as a valid reason for dismissal 

- age-dependent composition of compensation for termination of 

employment contracts 

- age-dependent justification for concluding fix-term contracts 

17. Even with regard to the termination of employment contracts it is 

possible to observe some problems linked to the prohibition of age 

discrimination. In the first place, they concern the legitimacy of age 

differentiations in the law of dismissals. 

Firstly, the dismissal of the person who has reached the age of 

retirement is relevant with reference to the clauses in the collective agreements 

which automatically end the job relationship when the worker reaches the 

retirement requirements (the law is silent on this point). Case law leans 

towards the idea that these kinds of clauses are null and void, because they are 

contrary to the provisions restricting the placing of time limits on the 

employment contract, and to the principle that the reasons for its termination 

can be provided only by law (Cassazione civile, 11 agosto 2004, n.15593). This 

conclusion is disputed by the judgement given by the ECJ on the 16 October 

2007 (C-411/05 Félix Palacios de la Villa vs Cortefiel Servicios SA). European 

judges stated that the prohibition on any discrimination on grounds of age 

must be interpreted as not precluding national legislation pursuant to which 

compulsory retirement clauses contained in collective agreements are lawful 

where such clauses provide as sole requirements that workers must have 

reached retirement age, and must have fulfilled the conditions set out in the 

social security legislation for entitlement to a retirement pension under their 

contribution regime. The instrument should be objectively and reasonably 

justified, in the light of domestic law, by a legitimate objective related to 

labour policies and the labour market. Moreover the instruments to pursue 

those objectives of general interest should not appear inappropriate or



unnecessary. With the judgement, the Court distanced itself from what was 

stated in the Mangold case and reaffirmed that each national legislator has 

considerable discretionary power to regulate the prohibition of age 

discrimination. This is the consequence of the fact that the reasonableness test 

applied by the Court to age discrimination is less stringent than the one 

applied in the German case (LAULOM 2008, 23). However workers older than 

60 years who, at least 6 months before they reach retirement age, do not 

communicate to the employer their intention of continuing to work are not 

protected by the law of dismissal (art. 4, sub-section 2, Law 11 may 1990, 

n.108). The contract can thus be terminated by the employer ad nutum, this 

being one of the few cases in Italy where the employer has this right without 

the burden of having to justify the reason or give the reason for their choice. 

This is allowed by Italian labour law because once the worker reaches 

retirement age they have an alternative source of income. This case seems to 

be one of age discrimination: art. 3, sub-section 4 bis, of Decree n. 216 of 

2003, in fact, states that differentiations of treatment can be considered 

legitimate when concerning “conditions of dismissal and wage of young 

people, older workers, and workers with caring responsibilities”, but only if 

they favour the access to work or they secure the protection of the people 

involved, which does not seem to be the case. This result is confirmed by the 

ECJ which in the case C-388/07 (The incorporated Trustees of the National Council 

of Age (Age Concern England) vs Secretary of State for Business, Enterprise and 

Regulatory Reform) intervened recently against the English transposition of 

Directive 2000/78/CE, which provided the possibility for the employer to 

waive the prohibition of age discrimination by terminating the employment 

contract for the sole reason that the worker has reached retirement age. In 

particular, the Court stated that “in choosing the means capable of achieving 

their social policy objectives, the Member States enjoy broad discretion. 

However, that discretion cannot have the effect of frustrating the 

implementation of the principle of non-discrimination on grounds of age. 

Mere generalisations concerning the capacity of a specific measure to 

contribute to employment policy, labour market or vocational training 

objectives are not enough to show that the aim of that measure is capable of 

justifying dispensation from that principle and do not constitute evidence on 

the basis of which it could reasonably be considered that the means chosen 

are suitable for achieving that aim” (sub-paragraph 51).



If the dismissal is unfair and if a threshold is set for the numbers of 

employed workers art. 8 of Law 15 July 1966, n. 604, states that the worker 

has the right to be re-employed or, alternatively, to be awarded compensation. 

The amount of compensation consists of a penalty of between 2 and 6 

months’ salary on the basis of the last global remuneration earned. The judge 

awards damages assessing various factors such as the age of the worker, the 

dimension of the enterprise, and the behaviour and conditions of the parties. 

If this part of the provision cannot be considered discriminatory because the 

disadvantages for the younger worker are balanced by some advantages, the 

same cannot be said of the second part of the provision which states the 

possibility of awarding up to 10 months’ salary to a worker with at least 10 

years of seniority and up to 14 to a worker with 20 years of seniority. 

The prohibition of age discrimination also makes it obligatory to verify 

the legal or contractual criteria used by the employer downsizing the 

enterprise. This is the sense of the provisions on collective redundancies 

contained in Law 23 July 1991, n. 223, which sets criteria to choose the 

workers to be included in the lay-off (art. 5). First of all, the choice should be 

made respecting the criteria provided by the law and collective contracts 

stipulated with the trade unions which have to be informed of the beginning 

of the procedure. The criteria provided by the law are caring responsibilities 

within the family, seniority and the technical, productive and organisational 

necessities of the enterprise. The age factor has an evident importance in the 

first two criteria. We have already said that the criteria of seniority, if 

considered alone, raises doubts about its legitimacy; moreover, the criteria of 

caring responsibilities within the family, even if it may represent an advantage 

for workers who are presumably in the middle stage of their life, should be 

considered legitimate on the basis of its social scope. Furthermore, it is not 

enough to analyse each criterion because they are applied at the same time: the 

moment of the choice of the workers to be included in the collective lay-off. 

It is the employer in fact who has the duty of individuating the lay offs that 

are the most socially responsible by looking at seniority and caring 

responsibilities. 

Finally we should address the problem of the contractual criteria 

concerning the right to retire and, even more, the right to pre-retire which are 

among the most frequent in the collective agreements of some sectors (in rail 

transport for example). At this regard Italian case law has generally stated that 

measures such as pre-retirement are justified because they have a more



contained social impact (Cassazione civile, sezione lavoro, 24 April 2007, n. 

9866; Cassazione civile, sezione lavoro, 21 September 2006, n. 20455). 

However this opinion, after the coming into force of Decree 216, has been 

disputed by first and second jurisdiction Courts (Tribunale di Milano, 26 April 

2006; Tribunale di Milano, 4 April 2006, Tribunale di Milano 12 July 2005, 

Tribunale di Milano 7 January 2005; Corte d’Appello di Firenze, 27 March 

2006) which used some minority arguments produced by the Corte di 

Cassazione (Cassazione civile, sezione lavoro, 2 September 2003, n. 12781; 

Cassazione civile, sezione lavoro, 19 September 2002, n. 13393). After the 

introduction in Italy of the prohibition of age discrimination, the adoption of 

the pre-retirement criteria would be an indirect form of age discrimination 

because older workers who are entitled to pre-retirement measures would be 

in a disadvantaged position. This is why the criteria should be considered 

discriminatory if they are not used with other criteria of selection. “Age, (or 

pre-retirement entitlement) if used by collective agreements as a unique 

criteria of selection does not allow an impartial process of selection because it 

transforms all the processes into an individuation per relationem of the workers 

to be dismissed” (D’ANTONA 1994, 932). 

In conclusion, in the light of the recent case law the last criterion does 

not seem justified by any appropriate or necessary reason. In fact, the policy 

needs of the labour market and the objective of favouring young employment, 

even if we accept that the employment objective is legitimate from a 

constitutional perspective, do not seem satisfied. A strong argument in 

support of this thesis is that a direct cause-effect relationship between preretirement 

and the creation of new jobs for young people has never been 

demonstrated. Moreover even the technological and productive needs related 

to a high level of technical innovation should not be considered admissible 

because they are directed purely to the advantage of the company. The only 

reason that may legitimate the criteria that we are analyzing is the necessity of 

reducing the social impact of the lay off: the perception of an alternative 

income is, in fact, considered by a part of the literature to privilege other 

workers who are not in a similar condition.



18. Is there a mandatory retirement age set by law? Are social 

partners competent to set (or alter) age limits for retirement? If so, 

which age limits are admissible and which grounds of justification are 

acknowledged for imposing a mandatory retirement age? 

18. One of the most controversial issues concerning the last phase of 

employment relationship is mandatory retirement. This measure obliges all the 

workers to retire when a certain age set by law is reached. 

In the private sector when the worker reaches the retirement age there 

are no consequences on their employment contract, while in the public sector 

the consequence is the termination of the contract. This provision is certainly 

linked with the law on retirement age, which is very different between public 

and private sectors. In fact if in the private sector from 1995 there are equal 

conditions for men and women (even if the regime is still flexible), in the 

public sector the retirement age for men is 65 while for women it is 60. 

Female workers can in fact request to continue the employment relationship 

by communicating their decision to the employer at least 3 months before 

they turn 60. However the onus of communicating the intention of continuing 

the employment contract has been considered unconstitutional by the 

Constitutional Court (Corte Costituzionale, 18 June 1986, n. 137; Corte 

Costituzionale, 27 April 1988, n.498) and the provision is not applied by the 

Corte di Cassazione (Corte di cassazione, sezione lavoro, 1 giugno 2006, n. 

13045). The reasoning of the Constitutional Court is that the norms setting a 

lower retirement age for women cannot be considered constitutional if 

interpreted in a way that does not permit female workers to retire at the same 

age as male workers. So, it is not necessary for them to communicate their 

intention three months before they reach the retirement age. 

Despite the fact that during recent years the Italian legislator has been 

working on a process to raise the retirement age and eliminating differences 

between the public and private sectors, this still remains a peculiar aspect of 

Italian social security. The ECJ recently intervened against Italy presuming a 

violation of art. 141 TEC. With the judgement issued on 13 November 2008 

(C-46/07, European Commission vs Repubblica Italiana) Italy was condemned for 

the violation of art. 141 in the public sector where, as we said, employees are 

entitled to receive the old-age pension at different ages depending on whether 

they are male or female. Firstly, the ECJ stated that the old-age pension is 

included in the concept of remuneration in art. 141 TEC; secondly, it stated



that by maintaining in force a provision by which public employees are 

entitled to receiving the old-age pension at different ages depending on 

whether they are male or female, the Italian Republic has failed to fulfil its 

obligations under Article 141 TEC. The main criticism coming from Italian 

scholarship is that in the judgement of the ECJ failed to observe that female 

civil servants are not obliged by law to retire before their male colleagues and 

that, if they wish, they can retire at the same age (DE SIMONE 2009, 273). 

Probably, a more insightful assessment of both the system to calculate the 

pension of public employees and the nature of the discrimination which 

concerns primarily social security would have led the Court to a different 

conclusion (MAZZIOTTI 2009, 236). Moreover, the Court did not even 

consider the possibility of multiple discrimination based on the factors of age 

and gender even if Italian law provides differentiations based on age and 

gender to with regard to retirement. 

However, the Court ruled in the same way in a case involving Greece 

(C-559/07, European Commission vs Republic of Greece), where it stated that by 

maintaining in force provisions which provide for differences between male 

and female workers with regard to retirement age and minimum required 

service under the Greek Civil and Military Pensions Code, in the version 

applicable to the present case, the Hellenic Republic failed to fulfil its 

obligations under Article 141 EC. The Greek Civil and Military Pensions 

Code was considered incompatible with the principle of equal remuneration in 

art. 141. 

The Italian Government announced in July 2009 its intention of 

restoring equality in the field, raising the retirement age for women in the 

public sector, and so respecting the judgement of the Court. Starting from 

2010, the requirement will be raised by one year in every two in order to reach 

the requirement of the age of 65 by January 2018 (art. 22 ter, Law 3 August 

2009, n. 102). 

The condemnation of Italy does not affect the public sector, where the 

pension scheme is administered by INPS (Istituto Nazionale Previdenza 

Sociale), a public insurance. INPS being considered by EU Law an 

independent legal regime, it is possible in its case to waive the principle of 

equal gender treatment.



19. Are there incentives to induce older employees to leave even 

before they reach the mandatory retirement age? 

19. In Italy, especially in the past, pre-retirement was common practice. 

This was a measure that, in the context of complex operations often of a 

collective kind, made it possible for workers to choose early retirement. Even 

before, and particularly at the end of the Sixties, the so called “cheque for laid 

off old workers” (“assegno per i lavoratori anziani licenziati”) had been 

introduced, which even if not exactly a pension, had the function of 

supporting the person until they meet the pension requirements (BASENGHI 

2005, 1012). 

Early retirement can be defined as a temporary measure, discretionally 

activated, that permits workers to benefit from the pension some years before 

they could meet the requirements if the employment contract is terminated 

and if the administrative requirements for the pension are met (CINELLI 2008, 

488). It is a measure introduced mainly to tackle industrial restructuring, and 

its regulation is not unitary. In fact, the regulation on early retirement is 

contained in different statutes which set different provisions for different 

sectors (e.g. the steel industry, the port and automotive sectors) and justify the 

measure on the basis of different reasons (technological innovation, economic 

crisis in a sector, turnover, risk reduction of collective redundancies). 

Sometime early retirement can be coerced: if there is an excess of workforce 

in a program of restructuring, the employer has the duty to indicate employees 

for retirement. 

The practice of early retirement is in contrast with the policies that have 

the objective of raising the average age of retirement, a necessity that has 

become even more urgent now that we are witnessing a crisis in the funding 

of social security due to aging population and the negative general economic 

trend. 

The need to raise the age of retirement is a consequence of the 

necessity of bringing Italy close to the European average. This is why 

periodically the legislator tried to reduce and to contain this practice, mostly 

substituting it with measures aimed at inducing workers to postpone their 

retirement. This happened through measures that rewarded the worker or 

through an authoritative intervention on the legal age of retirement. 

This trend is still going on: for example on the 31st of July 2009 a bill 

aimed at extending the length of working life was presented in the Senate



(d.d.l. n. 1745). The bill would entitle the worker who accepted working 

beyond the age of retirement to a reduction of 2/3 of income tax and a small 

penalty (up to two months’ salary) for the employer who refuses to continue 

the employment relationship. 

20. Please mention any additional topics characteristic to the 

anti-discrimination legislation in your country. 

ESSENTIAL BIBLIOGRAPHY 

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559 ff. 

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1, p. 133 ff. 

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Lavoro e diritto, 2, p. 255 ff. 

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lavoratori in esubero, in Lavoro e diritto, 3, p. 403 ff. 

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riduzione del personale e discriminazione ai densi del D. Lgs. n. 216/2003, in Il lavoro 

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ff.



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discriminazione per età, in Rivista giuridica del lavoro e della previdenza sociale, 

4, p. 515 ff. 

LAULOM S. (2008), L’interdiction des discriminations fonde sur l’âge, in 

Semaine Sociale Lamy, n. 1338, p. 23 ff. 

LUNARDON F. (2006), Lavoro atipico, discriminazione per motivo di età e 

promozione dell’occupazione, in Diritti lavori mercati, 2, p. 428 ff. 

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p. 232 ff.



MEENAN H. (2007a), Age Discrimination – Of Cinderella and The Golden 

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NANNIPIERI L. (2006), Ambito oggettivo di comparazione e criteri soggettivi di 

scelta nella riduzione del personale: I limiti di ammissibilità del “criterio unico” della 

maggiore prossimità al licenziamento, In Rivista italiana di diritto del lavoro, II, p. 

672 ff. 

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THE PROTECTION OF FOREIGN INVESTMENT 

QUESTIONNAIRE 

ROBERTO PARDOLESI * 

MASSIMILIANO GRANIERI ** 

1. Framework and hierarchy of foreign investment laws and treaties 

a) The legal framework governing foreign investment 

i. The domestic laws and regulations (including e.g., constitutional 

rules, national legislation, and sub-national (e.g., provincial/state or 

lower level legislation) legislation). 

No specific provisions have ever been passed at constitutional level in Italy 

concerning foreign investments. As general principle it can be stated that 

foreign investments are subject to general rules of international law on the 

legal treatment of foreigners and of their goods 1 . 

The Italian Constitution fames a division of competences between the State 

(meaning the central government and the national Parliament) on the one side, 

and the Regions, on the other side. Even if Italy cannot be considered a 

federal state in technical terms, over the years there has been an increasing 

* Roberto Pardolesi is Professor of Comparative Private Law at Luiss University of Rome 

** Massimiliano Granieri is Researcher of Comparative Private Law at the University of Foggia 

1 Sergio Marchisio, „Investimenti esteri nel diritto internazionale‟, in Digesto pubbl (Utet, Torino), 1993, vol. 

VIII, 567, 569.



pressure to decentralize functions and to empower the government of the 

Regions with missions that traditionally had been under the exclusive 

jurisdiction of the national government. International relations and with the 

European Union of Regions, as well as foreign trade have followed this path. 

As a matter of fact, art. 117 has been modified with Italian Constitutional 

Law on October 18, 2001, n. 3 2 . The previous version did not include any 

reference to matters of foreign trade or international relations. Five Italian 

Regions enjoy particular autonomy and their statutes (approved as 

constitutional laws) confer upon them competences that include foreign 

relations 3 . 

Art. 117 of the Italian Constitution draws a line between the legislative power 

of the State and that of the Regions. As an important principle, set forth in 

art. 117, paragraph 1, both the State and the Regions are bound to exercise the 

legislative powers complying with the duties of the EU laws and with 

international obligations. Art. 117, paragraph 2, lists areas that fall under the 

exclusive jurisdiction of the state, whereas paragraph 3 lists matters where 

national and regional powers concur. Among the areas of concurring 

legislative powers international relations and foreign trade are included. The 

same paragraph 3 makes clear that in areas of concurring power legislation 

there is a somehow hierarchical relationship between national and regional 

2 OJ October 24, 2001, n. 248. 

3 Those regions are Friuli Venezia-Giulia, Sardegna, Sicilia, Trentino Alto-Adige/Südtirol, Valle d‟Aosta, 

Vallée d‟Aoste. See art. 116 of the Italian Constitution.

Roberto Pardolesi and Massimiliano Granieri 

The Protection of Private Investment 

legislative acts, since regional laws can govern the aforementioned matters in 

the context of fundamental principles that must be determined at central level 

by national laws. 

ii. Applicable international treaties (including treaties at bilateral, 

regional and multilateral/global levels). 

Italy is part of the World Trade Organization since January 1 st , 1995; the 

previous General Agreement on Tariffs and Trade was entered by Italy on 

May 30, 1950. As a consequence, the whole set of rules of the Uruguay 

Round Agreements apply. 

Italy is also member of the European Union, since the creation of the 

European Economic Communities. 

As far as foreign investments in Italy are concerned, it must be recalled the 

application of the Trade Related Investment Measures (TRIMs) agreement, as 

part of the WTO Agreement. Italy is also part of the Washington and Seoul 

Treaties 4 . 

Besides general multilateral agreements, Italy is a party in a substantial number 

of bilateral agreements and FNC (friendship, navigation, cooperation) Treaties. 

Those treaties are made public through the system described below in 

4 See Giorgio Sacerdoti, „La convenzione di Washington del 1965 per la soluzione delle controversie tra Stati 

e nazionali di altri Stati in materia di investimenti‟ (1969) Rivista di diritto internazionale privato e processuale 

627.

paragraph (b)(i). 



To some extent, also international treaties on applicable laws can be conducive 

of foreign investments, a remarkable example being the Convention of the 

Hague on the law of trusts. Because of its origins in the common law world 

(and, more specifically, within the courts of equity), the trust has been at the 

core of discussion of its compatibility of principles of Italian law, mainly as 

far as the segregation effect of assets is concerned 5 . Rigid interpretation of 

general principles of law prevented – or, at least, made highly risky – the 

adoption and the operation of trusts in Italy, until Italy signed the Convention 

of the Hague. Though a treaty on applicable law and not a source of 

substantial law, the adoption of the Convention in Italy paved the way to 

trusts in Italy with foreign applicable law. 

b) The relationship between international treaties and domestic laws 

i. The hierarchy between international treaties and domestic laws? In 

particular in case of conflict which ones will prevail? 

The relationship between international treaties and domestic laws is governed 

by constitutional principles. The questions can be framed differently and, first 

of all, it must be stated that, in principle, between an international treaty and a 

5 According to A Gambaro, „Il “trust” in Italia e in Francia‟, in P Cendon (ed) Studi in onore di Rodolfo Sacco 

(Giuffrè, Milano 1994) 509 f., the law of trusts is an effective means to attract business activities in a country 

(the Author mentions the experience of another civil law country, as France).



domestic law there is no hierarchical relationship until the international treaty 

is nationalized or, put differently, until the national legal systems is „adapted‟ 

to the international rules. 

International law scholars distinguish between ordinary procedures of 

adaptation and special procedures of adaptation 6 . 

The “ordinary” procedure is based on national rules that by no means are 

formally different from those of usual national provisions, the only difference 

being the occasio legis (the occasion for a law to be passed), that is the reason 

why a new law is adopted. In case of ordinary procedure of adaptation the 

occasion is technically the need to nationalize international rules (either 

written or customary), meaning to create a national rule whose content 

corresponds to that of the international source of the law. Once the rule is 

internalized by a national source, it enters the national legal system and is 

subject to the hierarchical principle that will be discussed below (see 

paragraph c). 

In the special procedure (also termed procedure “by reference”) there is no 

need to recast the international source within the national system. The 

introduction is achieved by a reference that the organs ordinarily concerned 

with normative power make, being such reference a general authoritative 

order to abide by the terms of those rules and to apply them. 

One remarkable example of adoption of international law by reference is 

6 Cf. B. Conforti, Diritto internazionale (Esi, Napoli 1988) 285.



provided by art. 10 of the Italian Constitution that reads: “The Italian legal 

system complies with the rules of international law generally known”. The 

reference is to the general international law, that is to international customary 

rules (such as pacta sunt servanda). It is by this mechanisms that in Italy an 

international rule can be invoked imposing to the State the duty to respect 

foreign investments 7 . 

International treaties are nationalized through the procedure by reference 

governed by constitutional principles; yet adaptation by reference is not 

automatic as is case of general international law as per art. 10 of Constitution. 

In particular, for an international treaty to be applied in Italy a specific ad hoc 

measure is required. Such measure (similar to a clause of implementation) is 

termed “order of execution” (in Italian “ordine di esecuzione”) and the usual 

formula reads: “Full and complete execution shall be given to the Treaty...”, 

such treaty normally being reproduced as an annex 8 . Because of the effect it 

has on the national system of the sources of law, the order of execution is 

adopted by a law of the Parliament (if its effects are supposed to act at 

legislative level). There can be cases of orders of execution adopted with acts 

of the public administration 9 . 

7 See Mara Valenti, „Il trattamento «conforme al diritto internazionale» degli investimenti stranieri nelle 

convenzioni internazionali‟ (2004) Diritto del commercio internazionale 973, 975. 

8 The Administrative Tribunal of the Veneto Region has clarified that the effectiveness of international 

treaties is Italy is subject exclusively to the order of execution, no other acts being required, unless the treaty 

requires positive actions for its goals to be achieved. See T.a.r. Veneto, sez. II [ord.], 21 January 1994, n. 1, 

Associaz. it. World Wildlife fund v Reg. Veneto (1994) Rivista italiana di diritto pubblico comunitario 475. 

9 The order of execution is not required in case of so called agreements in simplified form, in matters that



According to a constitutional praxis of the Italian Parliament, the order of 

execution is enacted in the same law that authorizes the ratification of 

international treaties (art. 80 of the Italian Constitution). Technically the order 

of execution is passed before the entry into force of the treaty, that is usually 

postponed to the exchange of ratifications or at the moment the agreed 

number of ratifications is reached, as the case may be. 

It is worth noting that in the process of having an international treaty signed 

and applied in Italy several powers are involved. The diplomatic delegations 

appointed by the government, or the government itself, are usually 

responsible for negotiations. The text is ratified by the President of the Italian 

Republic (art. 87) after the Parliament has authorized the ratification. 

It follows from the above that, unless the international treaty is nationalized 

according to the constitutional provisions, it cannot be applied within the 

Italian legal system and domestic laws will apply 10 . 

ii. Direct effect of international treaties in domestic legal system- can 

they be directly invoked by foreign investors to assert rights before 

domestic or international tribunals? 

are not included in art. 80 of the Italian Constitution. See C. Stato, sez. VI, 23 June 2008, n. 3154, Associaz. 

naz. Italia Nostra Onlus v Min. beni culturali (2009) Rivista di diritto internazionale privato e processuale 656. 

10 See the decision of the Italian Court of Cassation, SS.UU., 23 March 1972, n. 867, 17 April 1972, n. 1196, 

and 8 June 1972, n. 1773 (1973) Rivista di diritto internazionale 856 ff.



It is debated whether international treaties (per se) signed by Italy have direct 

effect in the Italian legal system when they have not yet received the order of 

execution, that is when the procedure by reference has not been followed. As 

stated before, no automatic legal effects can be produced in Italy as far as the 

international law of treaties is concerned (different situation being that of the 

general international law because of the mechanism of art. 10 of the Italian 

Constitution) 11 . 

Once a treaty has been ratified and enters into force, it acquires the same 

effectiveness as that of the order of execution. Thus, if the order is adopted 

by law, the content of the treaty (its rules) become part of the Italian legal 

system with the same level of legal strength of the law. 

As far as international treaties not (yet) ratified are concerned, some authors 

argued that since Italy signed the agreement (manifesting a political 

willingness to be bound to the treaty) then some immediate effect could be 

justified. Such reading of the facts is not consistent with the constitutional 

principles. Yet, there is general consensus in affirming that such political 

intention to enter the agreement allows to take into consideration the 

international rules at interpretative level. As a consequence, when interpreting 

and applying domestic laws on a given matter (for which a treaty has been 

signed but not yet ratified), judges and the public administrations can interpret 

11 The Italian Constitutional Court has reaffirmed this position in recent cases involving the direct 

application for European Convention on Human Rights; see Constitutional Court October 24, 2007, n. 348 

(2008) Foro italiano, I, c. 40.



the laws is a way that reconciles the national legal systems with the rules 

negotiated at international level 12 . 

c) The hierarchy among different forms and levels of domestic 

laws/regulations (e.g. between national, provincial and lower level 

laws). 

The hierarchy in sources of law in Italy is defined by Article 1 of the 

Preliminary provisions of the Italian civil code of 1942 13 . This provision 

states that the hierarchical system is made by the law, the regulations, and 

customs. Such system has been integrated in 1948, when Italy approved its 

republican Constitution. The Constitution (and constitutional laws approved 

by the Parliament) takes prevalence over the law (either national or regional), 

the law over regulations (and general normative acts of the executive power 

and its branches). Customs have currently a very limited force, being at the 

12 Such rule of purposive interpretation of domestic laws has found some merit in the case of EU directives 

not yet implemented after the term for implementation has expired and their content is sufficiently clear and 

unconditional Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] 1 ECR 4135 

(also published in (1992) Rivista di diritto internazionale 164); Case 91/92 Faccini Dori v soc. Recreb [1994] 1 

ECR 3325 (also published in (1994) Rivista di diritto internazionale private e processuale 883; Case 334/92 

Wagner Miret v Fondo de Garantia Salarial [1993] 1 ECR 6911 (also published in (1994) Notiziario di 

giurisprudenza del lavoro 56. 

13 „Disposizioni sulla legge in generale‟ (Provisions on the law in general), approved preliminarily with respect 

to the Civil Code with R.D. (royal decree) on March 16, 1942, n. 262. Such provisions have general 

application and they are still in force as law of the State, as long as they do not conflict with the Italian 

Constitution. Originally, they included rules on the applicable law (articles from 17 through 31) now repealed 

and replaced by special provisions of law.



bottom of the sources of law and applicable where recalled by the law as 

integrative sources (secundum legem). 

A major change in the hierarchical system of sources took place because of 

the adhesion of Italy to the European Economic Communities (now 

European Union). The ratification of the Rome Treaty by the Italian 

Parliament created a further level in the system with the provisions of the 

Treaties prevailing on Italian statutes by the Parliament. It is commonly held 

that such special position for the Treaty over the law is authorized by the 

Italian Constitution through article 11. Pursuant to this rule, Italy accepts 

limitations in sovereignty (as certainly a change in the sources of law is) in 

favour of a system that is aimed at peace and justice among nations, such as 

the European Union. The Italian Constitution and its Article 11 predate (1948) 

the Treaty of Rome (1957); yet this provision allowed the modification in the 

hierarchy of the sources and the creation of a supranational source that is able 

to surpass the national laws. The constitutional coverage given to the Treaty 

of Rome (and its following amendments and new treaties within the 

European Union) also justifies the peculiar legal force that mainly regulations 

have over national laws, pursuant to Article 249 of the Treaty 14 . 

14 It is not without friction that the national legal system accepted the idea that EU regulations can prevail 

over national laws. The European Court of Justice in 1964 in a preliminary ruling originating from an Italian 

Court clarified that subsequent national laws cannot be applied if conflicting with precedent regulations; Case 

6/64 Costa v Enel [1964] ECR 585. The Italian Constitutional Court has given its contribution in terms of 

interpretation of Article 11 in a series of important decisions: Cases n. 183/1973, (1974) Foro italiano, I, c. 

314, and n. 170/1984, (1984) Foro italiano I, c. 2062.



d) Transparency, including 

i. Ways to make publicly available laws, regulations, administrative 

procedures, administrative rulings and judicial decisions. 

Art. 10 of the Preliminary provisions to the Italian civil code states that laws 

and regulations must be published as a condition for the entry into force and, 

unless otherwise provided, they enter into force after the fifteenth day after 

publication. An analogous rule, although hierarchically more important, is 

contained in art. 73, paragraph 3, of the Italian Constitution, that mandates 

publication after the promulgation of the law (that is, signature by the 

President of the Republic of Italy of the law approved by the Parliament). 

Also the decisions of the Constitutional Court must be published. Law, 

regulations, as well as decisions of the Constitutional Court are published on 

the Official Journal of the Italian Republic (“Gazzetta Ufficiale della 

Repubblica Italiana”: GURI or GU). When the Court declares 

unconstitutional a law, the decision is binding the day following its 

publication 15 . 

The regime of publicity of certain Italian normative sources is now governed 

by the law on December 11, 1984 n. 839. Pursuant to article 1, the following 

15 The matter is governed by art. 136 of the Italian Constitution. See, among others, C. Stato, sez. IV, 27 

March 2002, n. 1734, Min. difesa v Cangemi (2002) Foro amministrativo-Consiglio di Stato 658.



must be published in their entirety on the official collection: (a) constitutional 

laws (b) ordinary laws of the State (c) legislative decrees of the government (d) 

other decrees of the President of the Republic, of the Prime Minister and of 

the government (e) other acts of ministerial committees that are strictly 

necessary for the application of the law (f) binding agreements for the 

Republic in international relations. 

Every year, the Minister of Foreign Affairs prepares a volume that must be 

enclosed to the issue of the Official Journal where annual indexes are 

published. Such volume must provide an account of the situation of all 

international conventions applicable in Italy, with an indication of the states 

where such conventions are in force and reservations placed by the States 16 . 

Legislative and administrative acts of the Regions and of sub-regional entities 

(such as provinces and municipalities, as well as other non-territorial 

administrations) are published on the national Official Journal or on regional 

(so called official regional bulletins, “Bollettino Ufficiale della Regione”: BUR) 

and sub-regional official publications, as the case may be. Due to the increased 

competences of Regions in the field of international relations and foreign 

trade, the BUR becomes an important source of information also for foreign 

investments. 

The Italian „Rivista di diritto internazionale‟ (Italian Review of International 

16 Italian law December 11, 1984, n. 839 (OJ n. 345 of December 17, 1984), „Norme sulla raccolta ufficiale 

degli atti normative della Repubblica Italiana e sulla Gazzetta Ufficiale della Repubblica Italiana‟; see, in 

particular, article 9.



Law) has a special section where the editors provide a full list of multilateral 

and bilateral agreements signed by the Italian Republic as well as those 

receiving every year the order of execution. 

ii. Any public consultation procedures, under which the Government 

of the host State provide opportunities for comments by the 

public before the adoption, amendment or repeal of regulations 

of general application that affect any matter relating to foreign 

investment. 

No specific provisions can be mentioned that introduce or govern public 

consultation procedures for comments or hearings on the enactment, repeal 

or abrogation of regulations that can affect foreign investments to Italy 

adopted a general law on the administrative procedures. Yet, besides ordinary 

judicial remedies against any act, Italy adopted a general law on administrative 

procedures. In an attempt to improve efficiency, publicity, and transparency, 

the Italian Law 241/1990 provides an extremely detailed discipline of the 

procedural rules that the public administration at all levels must follow. 

A number of general principles inspires the provisions of Law 241/1990 in 

terms of access to the documents of the procedure, right to participate and 

submit (written) observations, the duty to motivate any decision of the public 

administration, the duty to adopt always a final decision when the procedure is



obligatorily initiated upon request of an interested party 17 . 

Although probably limited in its impact (since normative acts are not touched 

by the law), Law 241/1990 sets important guaranties for individuals and 

entities, the right to access documents (and obtain copies) being an important 

way to enhance transparency and to have elements that could be used in 

seeking judicial remedies against the public administration. 

iii. Any other measures to enhance transparency of administrative 

and/or judicial procedure with regard to foreign investment. 

Even if not directly concerning foreign investments, it is worth mentioning 

the general provisions in force in Italy on the impact assessment of the 

regulation, that were passed to bring the nation at the level of most advanced 

countries as advocated by the OECD and the European Union 18 . Pursuant to 

art. 5 of the Italian Law on March 8, the government introduced the impact 

analysis with the d.p.c.m. March 27, 2000 (technically a decree of the Prime 

Minister). The impact assessment is still at an experimental stage. Yet, the 

procedure itself can be an occasion where the impact of regulation is assessed 

also with respect to potential effects any administrative or regulatory act can 

17 Italian Law on August 7, 1990, n. 241, „Nuove norme in materia di procedimento amministrativo e di 

diritto di accesso ai documenti amministrativi‟ (OJ August 18, 1990, n. 192), amended in 2005 and 2007. 

18 A thorough account of the situation in Europe on the impact assessment if provided by A Renda, Impact 

Assessment in the EU. The State of the Art and the Art of the State (Brussels, CEPS 2006).



have directly or indirectly on foreign investments. 

2. General standards of treatment of foreign investment/investors 

a) Standards of treatment under international treaties (common 

standards include national treatment; most favoured nation (MFN) 

treatment; fair and equitable treatment; international minimum 

standard; constant protection and security) (when possible please also 

state how such standards have been interpreted and applied in practice 

by international tribunals and/or domestic courts). 

A principle of non discrimination is not recognized in Italy in general terms. 

It is expressed in the Most-Favoured Nation Clause that is applicable in Italy 

as part of the GATT 1994 (article I) 19 . 

Being Italy a member of the WTO and a previous member of the GATT 

1994, the Agreement on Trade-Related Investment Measures (TRIMs) is also 

applicable. Italy remains free to regulate any sector under the condition that 

measures adopted are compatible with the principles of article III (national 

treatment) and of article XI (removal of quantitative restrictions) of the 

GATT 1994 (see article 2 of the TRIMs Agreement) 20 . 

Being a party in the main international multilateral treaties, Italy recognizes 

19 See P Picone, A Ligustro, Diritto dell’organizzazione mondiale del commercio (Padova, Cedam 2002) 102. 

20 More details in P Picone, A Ligustro, Diritto dell’organizzazione mondiale del commercio (Padova, Cedam 2002) 

223.



such standard as far and equitable treatment (as per art. 12 d iv of the MIGA). 

As to specific treaties, in some occasions agreements entered by Italy refer to 

principles of international law generally known, to those aimed at preserving 

the international order, and to good faith 21 . 

Art. 3 of the Agreement on Trade-Related Aspects of Intellectual Property 

Rights imposes to Member States the principle of national treatment with 

regard to the protection of intellectual property rights. In stating that 

advantages, favors, privileges or immunity granted by a Member to the 

nationals of any other country shall be accorded immediately and 

unconditionally to the nationals of all other Members, art. 4 of the same 

Agreement introduces the principle of the Most-Favored Nation in the 

protection of intellectual property rights. 

b) Standards of treatment under domestic law (national treatment? Other 

standards of treatment? ). 

The general rule on the treatment of foreign investments, and in general on 

the treatment of foreigners and their goods, is set forth by art. 16 of the 

Preliminary provisions of the Italian civil code of 1942. The article provides a 

21 See article 1 of the Friendship, Partnership and Cooperation Treaty between the Republic of Italy and the 

Big Giamahiria Arabian Libyan Popular Republic, done in Bengasi on August 30, 2008, and ratified with 

Italian law February 6, 2009, n. 7 (OJ February 18, 2009, n. 40), also published in (2009) Rivista di diritto 

internazionale 603.



principle national treatment of foreign citizens in Italy subject to the 

condition of reciprocity 22 . 

Such article is a fallback provision. Courts have clarified that bilateral treaties 

with other states can derogate to the rule and introduce other standards 23 . If 

not contracted out, the principle has been interpreted to apply to non 

fundamental rights. For fundamental rights (human rights) the standard of 

treatment in Italy would be non discrimination (equal protection) 24 . 

3. Admission/entry requirements 

a) The admission regime in general- a registration system or an 

authorisation/approval system; in case of the latter, whether it is 

selective authorisation or categorical authorisation? 

In principle, foreign companies are admitted in Italy at the same conditions 

that apply for national companies, subject to the rule of reciprocity unless 

otherwise agreed. Yet, there are fields where special authorization are needed 

for particular protection purposes. Among several examples, pursuant to art. 

22 Reciprocity exists when the Italian citizen is not discriminated in the exercise of a right that is formally 

recognized both to him and to nationals by a foreign Country. See Cass. 19 May 1995, n. 6918 (1995) 

Giustizia civile, I, 2640. 

23 See T. Como 7 April 1994 (1994) Vita notarile 620. 

24 See the recent decision of the Italian Court of Cassation on May 7, 2009, n. 10504, (2009) Repertorio 

Foro italiano, voce Straniero, n. 58.



46 of the Ministerial Decree June 18, 2001, foreign companies must receive an 

authorization for civil flights. 

The incorporation of a limited partnership (società a responsabilità limitata), 

the most common form of commercial entity in Italy for running business, is 

subject to a paid-in minimum capital requirement, as per article 2463, 

paragraph 4, of the Italian Civile Code (Italy does not have a separate 

commercial code). The 25% of the minimum capital must be deposited in a 

bank account prior to the registration of the company before a public notary. 

b) Areas open to foreign investment 

i. General approach: a negative list approach, or a positive list 

approach? 

In general, all areas of trade are open to foreign investors. In bilateral treaties 

entered by Italy it has been noted the emergence of a principle of “open 

door” for foreign investments, even though legal texts refrain from declaring 

it jus cogens and fully enforceable 25 . 

Companies willing to invest in Italy do not receive a general authorization; 

they rather need to refer to specific regulations governing that specific 

industry. Requirements and procedures may differ consistently by case to case, 

25 See Sergio Marchisio, „Investimenti esteri nel diritto internazionale‟, in Digesto pubbl (Utet, Torino), 1993, 

vol. VIII, 576.



and a remarkable difference exists between the treatment of companies 

coming from other member states of the European Union and those from 

abroad. In the former case, a principle of mutual recognition and 

home-country control is becoming more and more the rule. In the latter, there 

might exist intense controls by national authorities, particularly in regulated 

industries (see, infra, lett. c). 

ii. Conditions and qualifications for admission. Please also refer to 

performance requirements. 

Performance requirements (both as local content requirements and trade 

balancing requirements) are contrary to the obligation of national treatment 

set forth by article III of the GATT 1994, as implemented by art. 2 of the 

TRIMs Agreement (Picone and Ligustro 224). 

c) Specific admission procedures. Generally explain the steps need to get 

through the admission stage. 

Admission procedures for foreign investors differ from case to case and can 

be particularly intense for regulated industries, such as banks, financial 

activities (intermediation), insurance, payment services. Without any ambition 

of generalization, for foreign investment companies in the financial sector, a



detailed discipline is provided by Legislative Decree on February 24, 1998, n. 

58 (“Testo unico delle disposizioni in materia di intermediazione finanziaria, ai 

sensi degli articoli 8 e 21 della legge 6 febbraio 1996, n. 52; so called TUF) 

that, together with other law, empower an independent administrative agency 

(“Commissione Nazionale per le Società e la Borsa”, CONSOB) with the task 

of authorizing investment companies and of surveillance of the market. In 

case of foreign investors, a company can be admitted to operate in Italy if it 

establishes an agency. The agency must receive an authorization by the 

CONSOB, that has to consult with the Bank of Italy. The authorization is 

subject to the existence of a number of conditions, mostly related to the 

regime applicable to the foreign investor in his country of origin. One of the 

conditions to comply with is the rule of reciprocity, as far as it is compatible 

with bilateral treaties entered by Italy with other countries 26 . 

d) Relevant aspects of competition policy and/or antitrust law if 

applicable 

Under art. 25, paragraph 2, of the Italian antitrust law (10 October 1990, N. 

287), the Italian Prime Minister has some power to prevent a merger or an 

acquisition by a foreign company with respect to a national target. In 

particular, the Prime Minister can permanently block an M&A transaction, 

26 See article 28, paragraph 1(e) of the T.U.F.



upon official decision of the Government on a proposal by the Ministry of 

Industry, if the acquiring entity (whether commercial corporation or not) 

comes from a State that does not ensure independence for Italian companies 

with rules having the same effect as those set forth under the same Law 

287/1990. The blocking decision must rely on “essential reasons of national 

economy”. This rule, which has never been applied as yet, provides the sole 

basis upon which the entry in the Italian market by means of acquisition can 

be limited or prevented for foreign investors. In all other instances, general 

rules of antitrust applies both to national or foreign companies 27 . 

4. Investment contracts 

a) Forms of investment contracts under domestic law (in particular any 

contracts that involve a state as a party (state contracts), in the form of, 

e.g. joint venture contracts, contracts for joint exploration of natural 

resources, contracts for built-operate-transfer (BOT) projects) 

The taxonomy, of Public-Private Partnership (PPP), as spelled out in 

Article 3 (15 ter) D. lgs. 163/2006, Codice dei contratti pubblici relativi a 

lavori, servizi e forniture, c.c.p., as modified by the Third Corrective Decree 

of 2008), is quite reach. It comprises the general model of „concession for 

building and operating‟ (BOT; DBOT; BOOT; BLT; ROL), which was the 

27 For an account of the Italian antitrust system in a comparative perspective see R Pardolesi, M Granieri, 

„National Report on Antitrust‟, XVI Congress of Comparative Law, in J Basedow (ed), Limits and Control of 

Competition with a View to International Harmonization (Kluwer Law International, The Hague 2002).



pre-existing and traditional one, nowadays revisited and refurbished in a 

perspective that does no longer privilege the authoritative power of the 

administration, and aims to fully exploit the cooperation between private 

undertakings and the public hand. On this model the so called Law Merloni 

ter (No. 109 of 1994) grafted the more sophisticated mould of Project 

Financing, as of now disciplined in a highly detailed way by Article 153 of the 

aforementioned Codice. (It deserves noting that the elaborated provisions 

contained in this Article perform a kind of transplant of the private contract 

praxis shaped by the common law systems, including arrangements, like the 

step-in right reserved to the financial sponsors of the project in case of 

breach of the SPV responsible for performing the contract, which would have 

been otherwise deemed radically incompatible with the Italian administrative 

legislation). Other cooperative arrangements mentioned by Article 3 (15 ter) 

are: (a) the general Contractorship, firstly introduced by Law 21 December 

2001 No. 443 (so called Legge obiettivo) and now converted into Article 

176 ff. of the Codice, which is mainly characterized –again introducing a 

shocking deviation from the Italian administrative practice- by the 

circumstance that the contractor, invested of the task of perfecting a project 

of relevant dimensions is left free to reach the goal with the means it 

considers proper, whichever they are (needless to say, in the range of legality); 

(b) Sponsoring contracts; (c) Leasing; (d) though not mentioned by Article 3 

(15 ter), Outsourcing and, possibly, Urban concessions (obliging private



parties, endowed with the right to build new houses, to finance and create 

adequate zoning facilities) should be added to the list. 

It should be stressed, anyway, that PPP is not necessarily expressed 

though contract inter-action. A particularly important alternative is 

represented by the Institutionalized PPP (or PPPI), which represents the 

investment strategy commonly resorted to in the area of local public utilities, 

through the creation of so-called mixed corporations, participated by private 

parties (usually, but not necessarily) as minority shareholders. This kind of 

cooperation is currently regarded as extremely useful, since it promises to 

combine the expertise and efficiency of private entrepreneurship with the 

focus of public administration on social goals, that the market alone would 

not provide for; but it is also suspected of paving the way to elusions and 

discriminating practices. On this count, the legal attitude, also because of 

strict monitoring by the EU, is evolving toward more reliable arrangements. 

b) Any requirement on governing law to such investment contracts under 

domestic law (domestic law, international law, international treaties or 

a combination of these laws to govern these contracts?) 

Application of Italian law to investment contracts is determined primarily by 

the choice of law done by the parties of the agreement and, if the contract 

fails to identify the applicable law, by the general criteria provided in the



source of international private law. The general system of international private 

law in Italy results from the application of the Law on May 31, 1995, n. 218 

(“Riforma del sistema italiano di diritto internazionale privato”) and of a 

number of EU regulations that were passed over the years to ensure 

harmonized criteria in the identification of the governing law. As far as 

investments are concerned, it is worth recalling Council Regulation (EC) No. 

44/2001 of 22 December 2001 on jurisdiction and the recognition and 

enforcement of judgments in civil and commercial matters (by which the EU 

implemented the Brussels Convention) 28 . 

Recently, the EU approved a specific regulation, directly applicable in Italy – 

and thus further conforming the national system of international private law – 

on the applicable law to contractual obligation, aimed at providing general 

default criteria within European member states. 

c) Domestic law requirements on jurisdiction over contractual disputes 

(domestic courts, international tribunal/arbitration, or a combination 

of them to hear these contractual cases?) 

Under Italian civil procedure, parties are free to elect arbitration as a dispute 

resolution method. Article 806 of the Italian Code of Civil Procedure limits 

< 28 For a comprehensive reading, A Frignani, Il contratto internazionale, in F. Galgano (ed) Trattato di diritto 

commerciale e di diritto pubblico dell’economia (Cedam, Padova 1990).



the ability of parties to choose arbitration to those controversies not dealing 

with unalienable, fundamental, personal rights, and allows arbitration in labor 

disputes only when arbitration is accepted as a method to solve disputes in 

collective agreements. 

The arbitration agreement (so called “convenzione di arbitrato”) or term, if 

part of a contract (so called “clausola compromissoria”), must be in writing as 

a condition of their validity and must determine the object of the dispute 29 . 

Both the agreement and the specific term can make reference to institutional 

arbitration courts, both national and international (such as the ICC or other 

arbitration courts) 30 . One very common national system of administered 

arbitration is provided by the arbitration chambers of the local chambers of 

commerce in Italy. 

When one of the parties is resident in Italy and has in Italy a permanent office 

or a secondary office, the arbitration is considered national. On the contrary, it 

is qualified as international arbitration to the purposes of applicable law 31 . 

It is worth recalling that since 1970 Italy is a member of the Convention 

européenne sur l‟arbitrage commercial international, done in Genève on April 

21, 1964, ratified in Italy with law May 10, 1970, n. 418. 

29 See articles 806 and 807 of the Italian Code of Civil Procedure. For a most detailed account of 

international arbitration procedure with an Italian perspective see A Frignani, L’arbitrato commerciale 

internazionale, in F Galgano (ed)Trattato di diritto commerciale e di diritto pubblico dell’economia (Cedam, Padova 2004). 

30 Such possibility is expressly recognized by art. 832 of the Italian code of civil procedure. 

31 A. Milano 12 December 2003, McDonald’s Development Italy inc. v Soc. Autogrill (2004) Rivista dell‟arbitrato 

485, held that the presence of a secondary place of business in Italy excludes the international dimension of 

a given arbitration from a subjective standpoint.



5. Performance requirements (such as local contents requirement, local 

employment requirement, trade balancing requirement, technology transfer 

requirement) 

a) As a condition attached to the authorisation of investment admission; 

or 

b) As a condition for the enjoyment of certain benefit/advantages. 

See paragraph 3, b), ii) above. As to quantitative restrictions, the following are 

considered contrary to article X, as incorporated in article 2 of the TRIMs 

Agreement: maximum import limitations, foreign exchange balancing 

requirements and domestic sales requirements 32 . 

6. Tax regime and incentives 

a) Brief general introduction of the tax regime (in particular whether 

foreign investors enjoy complete national treatment on tax matters or 

there are special tax regime(s) for foreign investors and their 

companies) 

The Italian tax system is based on both direct and indirect taxation. The two 

main bodies of law governing the tax system are (a) Presidential Decree 

(D.P.R.) 22 December 1986, N. 917 (Testo Unico delle Imposte sui Redditi, 

T.U.I.R.), amended and modified several times and still containing the 

32 P Picone, A Ligustro, Diritto dell’organizzazione mondiale del commercio (Padova, Cedam 2002) 224.



discipline of all income taxes (for natural and legal persons), and (b) 

Presidential Decree 26 October 1972, N. 633 (institution of the value added 

tax, VAT), amended and modified several times. 

Main income taxes are the IRPEF (Imposta sul Reddito delle Persone Fisiche), 

for income of natural persons, and IRES (Imposta sul Reddito delle Società), 

for income of corporate entities and institutions that carry out commercial or 

industrial or financial activities (see art. 2195 of the Italian civil code) in Italy, 

and IRAP (Imposta Regionale sulle Attività Produttive) that is charged on the 

value of gross production of companies realized on the territory of one or 

more Italian regions. IRES and IRAP will be dealt with below under 

paragraph b). 

The VAT applies to trade of goods and provision of services carried out in 

the context of a commercial (that it, professional, not occasional) activity. Its 

current rate is 20% of any consideration received for the sale of goods or 

provision of services. The VAT also applies to imported goods, regardless the 

nature of the importer. 

The VAT is subject to the principle of territorial application (art. 7 of the 

Decree 633/1972), meaning that sales of goods and provisions of services are 

taxed as long as they happen in the territory of Italy. According to this 

principle, a foreign company willing to engage in trade in Italy on a 

professional basis has to apply for a VAT registration and obtain a VAT 

number (so called Partita IVA) from the National Tax Agency (Agenzia delle



Entrate) of the Italian Ministry of Economy. All purchases and sales will be 

registered by the company and marked with the VAT number for the 

purposes of determining periodically the amount of taxes collected and due 

to the State. 

b) Special tax regimes for foreign investors (e.g., any tax reduction or 

exemption for foreign investment in general or for foreign investment 

in certain areas such as free trade zones, or in certain industries?) 

Foreign companies carrying out their business as corporate entities or trusts as 

well as under any other form are subject to the IRES, as per article 73, 

paragraph 1, lett. D) of Legislative Decree 344/2003. Entities are subject to 

this tax as long as they are “resident”, that is they either have a stable place of 

business in Italy or the core business of the entity is carried out in Italy. The 

rationale behind this tax is that the State should be able to charge incomes 

that are generated mainly in Italy or by companies that are headquartered in 

Italy (and presumably receive the income). Originally, the IRES was set as 

33% of the income (art. 77). Recently, to align the Italian tax system to those 

of other European countries, the percentage was brought down to 27,5% of 

the income (see art. Art. 1, paragraph 33, lett. e) of the Law 24 December 

2007, N. 244). 

Foreign companies, even if not resident in Italy, are subject to the IRAP, as



per art. 12, paragraph 2, of the Legislative Decree 15 December 1997, N. 446. 

They are subject to the tax if the commercial activity that generates that 

income was carried out in Italy for no less than three months by means of a 

permanent establishment, or fixed organization or an office, as well as if the 

income is generated by agricultural activities conducted on the territory of the 

State. The tax rate ranges passed from an original 4,25 to 3,9%. 

c) Double taxation treaties (any tax treaties with other countries to avoid 

double taxation?) 

Over the years, the Italian Government signed a number of treaties with other 

countries to avoid double taxation both on the estate and on earnings. The 

first multilateral treaty was signed on April 6, 1922 with Austria, Hungary, 

Kingdom of Yugoslavia, Poland and Romania, ad was based on a different 

regime for direct and indirect taxes; it also introduced for the first time in the 

Italian legislation the notion of permanent establishment Other treaties were 

signed later on with Germany (1925), France (1930), Belgium (1931). A 

significant thrust in the execution of this kind of agreement came from the 

effort of the Organization for Economic Co-operation and Development and 

the introduction of model tax conventions. 

As of February 2008, the Italian Government, through the National Tax 

Agency (named “Agenzia delle Entrate”, a department of the Ministry of



Economy) made available on its website a list of treaties against double 

taxation with other Countries, signed and ratified by Italy and still in force. 

The list is the following. 

Contracting 

State 

Signed (place and 

date) 

Albania Tirana 12.12.1994 

Algeria Alger 3.02.1991 

Argentina Rome 15.11.1979 

Australia Canberra 14.12.1982 

Austria Vienna 29.06.1981 

Ratified 

L. 21.05.1998, n. 

175 

L. 14.12.1994, n. 

711 

L. 27.04.1982, n. 

282 

L. 27.05.1985, n. 

292 

L. 18.10.1984, n. 

762 

Entry into 

force since 

21.12.1999 

30.06.1995 

15.12.1983 

5.11.1985 

6.04.1985 

Bangladesh Rome 20.03.1990 L. 5.07.1995, n. 301 7.07.1996 

Belgium Rome 29.04.1983 L. 3.04.1989, n. 148 29.07.1989 

Brazil Rome 3.10.1978 

L. 29.11.1980, n. 

844 

24.04.1981



Bulgaria Sofia 21.09.1988 

Canada Toronto 17.11.1977 

China Beijing 31.10.1986 

Cyprus Nicosia 24.04.1974 

South Korea Seoul 10.01.1989 

République de 

Côte d'Ivoire 

Denmark 

Abidjan 30.07.1982 

Copenhagen 

26.02.1980 

L. 29.11.1990, n. 

389 

L. 21.12.1978, n. 

912 

L. 31.10.1989, n. 

376 

L. 10.07.1982, n. 

564 

L. 10.02.1992, n. 

199 

L. 27.05.1985, n. 

293 

10.06.1991 

24.12.1980 

13.12.1990 

9.06.1983 

14.07.1992 

15.05.1987 

L. 7.08.1982, n. 745 25.03.1983 

+ amending protocol 

L. 7.1.1992, n. 29 28.7.1992 

Copenhagen - 25.11.88 

+ amending protocol 

Copenhagen - 5.5.99 

Ecuador Quito 23.05.1984 

L. 11.7.2002, n. 170 27.01.2003 

L. 31.10.1989, n. 

377 

01.02.1990



Egypt Rome 07.05.1979 

United Arab 

Emirates 

Abu Dhabi 22.01.1995 

Estonia Tallinn 20.03.1997 

L. 25.05.1981, n. 

387 

L. 28.08.1997, n. 

309 

L. 19.10.1999, n. 

427 

28.04.1982 

05.11.1997 

22.02.2000 

Ethiopia Rome 8.04.1997 L. 19.08.2003, n.242 9.08.2005 

Philippines Rome 05.12.1980 

L. 28.08.1989, n. 

312 

15.06.1990 

Finland Helsinki 12.06.1981 L. 25.01.1983, n. 38 23.10.1983 

France Venice 05.10.1989 L. 07.01.1992, n. 20 01.05.1992 

Georgia Rome 31.10.2000 

Germania Bonn 18.10.1989 

L. 11.07.2003, n. 

205 

L. 24.11.1992, n. 

459 

19.02.2004 

26.12.1992 

Ghana Accra 19.02.2004 L. 06.02.2006, n. 48 05.07.2006 

Japan Tokyo 20.03.1969 

Tokyo 20.03.1969 

L. 18.12.1972, n. 

855 

17.03.1973 

Greece Athens 03.09.1987 L. 30.12.1989, n. 20.09.1991



India New Delhi 19.02.1993 

Indonesia Djakarta 18.02.1990 

Ireland Dublin 11.06.1971 

Israel Rome 08.09.1995 

Kazakhstan Rome 22.09.1994 

445 

L. 14.07.1995, n. 

319 

L. 14.12.1994, n. 

707 

L. 09.10.1974, n. 

583 

L. 09.10.1997, n. 

371 

L. 12.03.1996, n. 

174 

23.11.1995 

02.09.1995 

14.02.1975 

06.08.1998 

26.02.1997 

Kuwait Rome 17.12.1987 L. 07.01.1992, n. 53 11.01.1993 

Lithuania Vilnius 04.04.1996 L. 09.02.1999, n. 31 03.06.1999 

Luxembourg 

Luxembourg 

03.06.1981 

Macedonia Rome 20.12.1996 

Malaysia 

Kuala Lumpur 

28.01.1984 

L. 14.08.1982, n. 

747 

L. 19.10.1999, n. 

482 

L. 14.10.1985, n. 

607 

04.02.1983 

08.06.2000 

18.04.1986 

Malta La Valletta 16.07.1981 L. 02.05.1983, n. 08.05.1985



Morocco 33 Rabat 07.06.1972 

Mauritius Port Louis 09.03.1990 

Mexico Rome 08.07.1991 

Mozambique Maputo 14.12.1998 

Norway Rome 17.06.1985 

New Zealand Rome 06.12.1979 

304 

L. 05.08.1981, n. 

504 

L. 14.12.1994, n. 

712 

L. 14.12.1994, n. 

710 

L. 23.04.2003, n. 

110 

L. 02.03.1987, n. 

108 

L. 10.07.1982, n. 

566 

10.03.1983 

28.04.1995 

12.03.1995 

06.08.2004 

25.05.1987 

23.03.1983 

Oman Muscat 06.05.1998 L. 11.03.2002, n. 50 22.10.2002 

Netherlands The Hague 08.05.1990 

Pakistan Rome 22.06.1984 

L. 26.07.1993, n. 

305 

L. 28.08.1989, n. 

313 

03.10.1993 

27.02.1992 

33 Tax courts in Italy have clarified that a foreign company is not bound to file the annual tax statement if, 

according to a bilateral agreement against double imposition, the same provision applies to the Italian 

company abroad. See Commiss. trib. centrale 9 October 1998, n. 4318, in (1999) Rivista di diritto tributario IV, 

127 (about Moroccan companies).



Poland Rome 21.06.1985 L. 21.02.1989, n. 97 26.09.1989 

Portugal Rome 14.05.1980 

United Kingdom Pallanza 21.10.1988 

Czech Republic Prague 05.05.1981 

Slovak Republic Prague 05.05.1981 

Romania Bucharest 14.01.1977 

Russia Rome 09.04.1996 

Senegal Rome 20.07.1998 

Singapore Singapore 29.01.1977 

Syria Damascus 23.11.2000 

L. 10.07.1982, n. 

562 

L. 05.11.1990, n. 

329 

L. 02.05.1983, n. 

303 

L. 02.05.1983, n. 

303 

L. 18.10.1978, n. 

680 

L. 09.10.1997, n. 

370 

L. 20.12.2000, n. 

417 

L. 26.07.1978, n. 

575 

L. 28.04.2004, n. 

130 

15.01.1983 

31.12.1990 

26.06.1984 

26.06.1984 

06.02.1979 

30.11.1998 

24.10.2001 

12.01.1979 

15.01.2007 

Spain Rome 08.09.1977 L. 29.09.1980, n. 24.11.1980



Sri Lanka Colombo 28.03.1984 

United States Rome 17.04.1984 

South Africa Rome 16.11.1995 

Sweden Rome 06.03.1980 

Swiss Rome 09.03.1976 

Tanzania 

Dar Es Salam 

07.03.1973 

Thailand Bangkok 22.12.1977 

Trinidad e 

Tobago 

Port of Spain 

26.03.1971 

Tunisia Tunis 16.05.1979 

663 

L. 28.08.1989, n. 

314 

L. 11.12.1985, n. 

763 

L. 15.12.1998, n. 

473 

L. 04.06.1982, n. 

439 

L. 23.12.1978, n. 

943 

L. 07.10.1981, n. 

667 

L. 02.04.1980, n. 

202 

L. 20.03.1973, n. 

167 

L. 25.05.1981, n. 

388 

09.05.1991 

30.12.1985 

02.03.1999 

05.07.1983 

27.03.1979 

06.05.1983 

31.05.1980 

19.04.1974 

17.09.1981 

Turkey Ankara 27.07.1990 L. 07.06.1993, n. 01.12.1993



Ukraine Kiev 26.02.1997 

195 

L. 11.07.2002, n. 

169 

25.02.2003 

Uganda Kampala 06.10.2000 L. 10.02.2005, n. 18 18.11.2005 

Hungary Budapest 16.05.1977 

Soviet Union(*) Rome 26.02.1985 

L. 23.07.1980, n. 

509 

L. 19.07.1988, n. 

311 

01.12.1980 

30.07.1989 

Uzbekistan Rome 21.11.2000 L. 10.01.2004, n. 22 25.05.2004 

Venezuela Rome 05.06.1990 

Vietnam Hanoi 26.11.1996 

Yugoslavia (**) Beograd 24.02.1982 

Zambia Lusaka 27.10.1972 

L. 10.02.1992, n. 

200 

L. 15.12.1998, n. 

474 

L. 18.12.1984, n. 

974 

L. 27.04.1982, n. 

286 

14.09.1993 

22.02.1999 

03.07.1985 

30.03.1990 

(*) The Treaty signed with the former Soviet Union it is currently applicable



to Armenia, Azerbaijan, Byelorussia, Moldavia, Kirghizstan, Tajikistan and 

Turkmenistan. 

(**) The Treaty signed with the former Yugoslavia is currently applicable to 

Bosnia Herzegovina, Croatia , Slovenia, Serbia and Montenegro. 

At the same date, few other treaties were signed and ratified, but not in force. 

Those are: 

Contracting State Signed (place and date) Ratified 

Armenia Roma 14.06.2002 Law 25.10.2007 n. 190 

Congo Brazzaville 15.10.2003 Law 30.12.2005, n. 288 

Kenya (amending 

protocol) 

Nairobi 15.10.19790 Law 07.10.1981, n. 666 

Nairobi 18.02.1997 

Legge 27.01.2000, n. 

d) Briefly any other incentives/mechanisms to attract foreign investors 

(e.g., insurance/guarantee against political risks, loans, etc)? 

Both at national and regional level agencies were created to attract inbound 

investments in Italy and to smother the process of requiring and obtaining all 

authorizations for a foreign company to start operations in Italy. The Italian 

10



Ministry for the Economy has create a special, fully-owned company, called 

Agenzia Nazionale per l‟Attrazione degli Investimenti e lo Sviluppo d‟Impresa 

S.p.A. (National Agency for the Attraction of Investments and Enterprise 

Development). All agencies provide support for companies willing to invest in 

Italy. More importantly, the national agency is able to identify opportunities 

and measures adopted by the regions at all levels (law, regulations, decisions, 

and any other relevant administrative act). 

Some Italian Regions encourage foreign direct investments by offering so 

called “contratti di insediamento”, that is agreements among the regional 

agencies and foreign companies willing to settle in the territory of the Region 

or to open facilities, offices or R&D centres. In exchange for the obligation to 

start operations in the Region, foreign companies receive technical or financial 

support, such as contributions to cover construction costs or human 

resources, or receive free (or cheaper) access to local facilities and resources 

(research centres, laboratories, qualified manpower etc.). 

7. Property rights, expropriation and compensation 

a) General protection of property rights by foreign investors (national 

treatment or special treatment to foreign investors?) 

Foreign investors enjoy national treatment as to the protection of their 

property rights. In the following parts a detailed account of protection



measures is provided. All issues (from letter c through f are addressed in a 

single paragraph) 

b) Protection of intellectual property rights (IPRs) (such as patent, 

trademark, trade name, industrial design, computer programme, etc.) 

Protection of intellectual property rights according the principle of national 

treatment is ensured by the membership of Italy in the World Intellectual 

Property Organisation and as signing party of the TRIPs Agreement, as well 

as by the adhesion to the main international convention for the protection of 

intellectual property rights (such as the Paris Convention or the Berne 

Convention). 

All main intellectual property rights are recognized and protected in Italy 

under the principles of the Italian Code of the Industrial Property and, in 

particular, by art. 3 on the treatment of foreign citizens 34 . The same article 3 

clarifies that the same provisions concerning citizens apply to legal persons. 

The Code offers a detailed discipline for foreigners. In case of citizens of 

each member state of the Paris Convention (Stockholm text of 1967, ratified 

in Italy in 1976) or of the World Trade Organization, with actual domicile or 

34 The Code has been enacted as Legislative Decree February 10, N. 30. Scarcely innovative as to the 

contents, the Code represents rather a consolidation of more than a hundred of legal texts (laws and 

regulations) on intellectual property that had been passed over the years. The Code has been amended already, 

remarkably by the Legislative Decree March 16, 2006, N. 140, on the implementation of the EC Directive 

2004/48/EC (so called Enforcement Directive).



industrial or commercial plants on the territory of a state belonging to the 

Convention of Paris, the treatment is the same as for Italian citizens. The 

same principle of national treatment is applicable for citizens of states 

member of the International Union for the Protection of New Varieties of 

Plants (UPOV). For topographies of semiconductors, a principle of 

reciprocity applies. For citizens of states that are not part of the Paris 

Convention, of the WTO or of the UPOV, the general principle is reciprocity. 

Article 3, paragraph, finally, introduces the Most-Favoured Nation treatment 

in favour of Italian citizens for rights accruing to foreign citizens because of 

international treaties signed by Italy. 

As to the rights protected, the Code provides substantial and procedural rules 

about trademarks, names and pseudonyms, geographic indications, industrial 

design, patents, utility models, mask works, trade secrets, new varieties of 

plants. 

Importantly, the Code does not include the discipline of copyright and related 

rights, that is still mainly provided in Italian Law April 22, 1941, N. 633, 

amended several times especially to implement the whole set of EC Directives 

on copyright in the information society, software and related rights. A Code 

of Copyright has been announced in the past years but parliamentary works 

for the drafting never started. 

Importantly, Italy is among those countries that award a sui generis right for 

database makers. Implementing EC Directive 96/9/EC, the Italian Copyright



Law includes provisions on databases 35 . 

c) Right to expropriation or promise of non-expropriation (does the 

state declare its right to expropriation or generally promise not to 

expropriate foreign investment in domestic laws or international 

treaties? Any conditions attached to such right or promise?) 

d) Definition of expropriation (in particular whether it include indirect 

expropriation (creeping expropriation or measures 

equivalent/tantamount to expropriation) as well as direct 

expropriation; any further definition of indirect expropriation?) 

e) Conditions of expropriation (such as public purposes/interest; legal 

procedure/due process; non-discrimination; compensation, as 

stipulated under international treaties and/or domestic law) 

f) Compensation for expropriation 

i. Rules on the standards of compensation (such as full or just 

compensation; “adequate, prompt and effective compensation 

(Hull Formula)”; or “appropriate compensation”) 

ii. Rules on the valuation methods for compensation (such as 

book value, discounted cash flow; going concern; replacement 

35 The European discipline on database protection with the creation of a copyright-like right (sui generis) 

marks a significant distance between Europe and the United States. For more details, see Valeria Falce, „La 

disciplina comunitaria sulle banche dati. Un bilancio a dieci anni dall‟adozione‟ (2006) Rivista di diritto 

industriale, I, 227.



value; etc) 

The taking of private property (including properties of non-national 

individuals or entities) is governed by constitutional principles. In particular, 

art. 42, paragraph 2, of the Italian Constitution declares that private property 

is recognized and protected by the law and the law itself determines the way 

property can be acquired and used, its limitations that are required to ensure a 

social function and to make it accessible to everyone. The same article 42, in 

its third paragraph, states that in cases defined by the law, and provided a 

compensation is paid to the owner, property can be expropriated for reasons 

of general interest. 

Article 42 introduces three principles of protection for owners, the first being 

the mandatory adoption of a law defining cases where expropriation is 

allowed, the second is the principle of compensation and the third is a 

mandatory requirement that a reason of general interest exists. Importantly, 

the same guaranties apply both to nationals and foreigners. 

The first rule (so called “riserva di legge”) is rooted in the principle of legality 

that inspires the Italian constitutionalism. The law is the source adopted by a 

democratically elected Parliament and it represents the strongest guaranty 

against abuses or ad hoc measures. The national law provides general and 

abstract situations where public authorities can exercise their powers and the 

due process. In this respect, the law represents a source of limitation for the



discretionary power of the executive branch. The overall system of guaranties 

for property owners must be complemented with the other constitutional 

principles, set for the in article 113. Against any act of the public 

administration interested parties always have unlimited jurisdictional 

protection before civil or administrative judges. National laws define which 

judges can set aside and repeal acts of the public administration, in cases and 

with effects that the same laws must determine. In this second case, the role 

of the law is to protect the prerogatives of the executive power, while 

providing individuals with jurisdictional protection. 

The jurisdictional protection is supposed to ensure the effectiveness of the 

due process that the constitutional rules grant, particularly as far as the 

indemnification principle is concerned and for the previous assessment of the 

conditions under which the public administration exercised the power to take 

private property (which basically turns in the issue of determining whether a 

public interest exists for the procedure to take place). 

The compliance with the constitutional principle that mandates an act of the 

parliament governing requirements and procedures for expropriation was 

assured by a pre-unitary law (June 25, 1865, N. 2359), followed and amended 

by a number of other laws and specific regulations, and constantly corrected 

by opinions of the Constitutional Court that was responsible for reconciling 

the old law with the new principles of the Constitution, dating 1948. Recently, 

the Italian Parliament consolidated all rules in a restatement (Testo Unico), the



Decree of the President of the Republic (technically a Legislative Decree) on 

June 8, 2001, n. 327 (Testo unico delle disposizioni legislative e regolamentari 

in materia di espropriazione per pubblica utilità). 

Article 4, last paragraph, of the Decree declares applicable in Italy the rules of 

international law generally known (general international law) and those of 

international treaties entered by Italy. 

Decree 327/2001 also provides detailed default rules for the determining the 

compensation (article 32). Other specific criteria can be used if introduced by 

following laws. In general, the amount of money that compensates the owner 

(so called “indennità di espropriazione”) is determined according to the 

characteristics of the good at the time the public administration and the 

owner signed the assignment (in case of voluntary procedure) or at the time 

the public administration issues its expropriation measure (in case of 

non-voluntary procedure). In the assessment of the value, any improvement 

or addition (be it a plant, a building or any other construction) is not 

considered if it was done with the purpose of having a larger indemnity 

(which is the case when additions or improvements were initiated during the 

procedure). 

More sophisticated criteria are provided in cases of tracks of land that, 

according to land regulations, can be used for constructions, since in such a 

case they supposedly have more value. The indemnity here results from a 

formula that takes into account the market value, divided by two and reduced



of 40% of its value. Such reduction does not apply, under specific 

circumstances, when the owner and the expropriating administration reach an 

agreement for the assignment of the land (art. 37, paragraph 1 and 2); it is 

implied that a disincentive must be given to the owner if he does not agree 

with the administration and opposes the expropriation. Such formula is not 

new. It has been imported in Decree 327/2001 by a pre-existing law (Italian 

Law on August 8, 1992, n. 359, turning into law an urgent decree, n. 333/1992) 

that was passed in years of budgetary distress, when it was crucial for public 

finances, among other things, to reduce the exposure towards proprietary 

claiming compensation. In a case concerning the previous legislation (decree 

333 and the law 359) the Constitutional Court held incompatible with the 

Constitution the formula, both in decree 333 and in the new legislation (article 

37 above), affirming that an arbitrary and significant reduction of a value that, 

in principle, is close that the market value is not consistent with constitutional 

principles on private property 36 . The implied outcome of the opinion is that 

the legislator can always intervene and provide a different formula; in the 

meanwhile, any restoration should conform to the market value of the 

property. 

If the area subject to expropriation has buildings or plants, the compensation 

equals the market value (art. 38), whereas if the area cannot be used for 

construction purposes, the compensation is determined according to the 

36 See Constitutional Court 10 October 2007, nn. 348 and 349 (2008) Foro italiano, I, c. 40.



agricultural value, considering the kind of cultivations usually practiced and 

the value of premises (legally edified to run the agricultural business), not 

considering possible alternative uses (art. 40). Further detailed rules apply for 

temporary expropriations or for military purposes. 

As to the compensation, general rules are provided by the law, even though 

special criteria are set forth in bilateral (friendship) agreements with foreign 

countries. For instance, in case of German citizens, a special treaty applies and 

the compensation is fixed according the market value of the goods 

expropriated 37 . 

8. Monetary Transfer 

a) Transferable assets (such as profit, original investment, reinvestment, 

IPRs) 

b) Restrictions to transfer (general restrictions such as special formalities; 

or exceptional restrictions e.g. in case balance of payment difficulty) 

c) Currency and exchange rate (in which currency shall the transfer be 

realised: local currency or freely convertible currency? Are there more 

than one currency exchange markets accessible to foreign investors? If 

37 Cass., sez. I, 8 March 2007, n. 5352, Com. Ronchi Valsugana v Daltrozzo (2007) Repertorio Foro italiano voce 

Espropriazione per p.i., n. 157 (affirming the exceptional nature of this criterion). See also Cass. 28 July 1986, n. 

4811, Parzinger v Prov. auton. Bolzano (1987) Rivista di diritto internazionale private e processuale 788 (same 

interpretation of the friendship agreement).



so what are the markets?) 

Italy belongs to the Euro area since the adoption of a single currency unity in 

Europe. The whole matter is regulated by the European Union and is subject 

to the monetary policy of the European Central Bank. National central banks, 

such as the Bank of Italy, are now part of the Eurosystem. By and among 

those member states that accepted the Euro (€) as a currency, the general 

principle is that cross-border and national payments receive the same 

treatment by payment service providers and should be done at no charges up 

to the value of Eur 50.000. The general discipline is now provided by 

Regulation (EC) 924/2009 on cross-border payments in the Community, 

replacing the previous Regulation (EC) No 2560/2001. Pursuant to the new 

Regulation, Member States have the possibility to extend its provisions to 

payments in national non-euro currencies. The Regulation applies to all 

electronically processed payments, including credit transfers, direct debits, 

cash withdrawals at cash dispensers, payments by means of debit and credit 

cards, and money remittance. 

Transfer of money is regulated in Europe (and in Italy, henceforth) as the 

object of a commercial activity that is governed by the principle of free 

circulation of services. With the purpose of creating the so called SEPA 

(Single European Payment Area), with no internal barriers to the provision of 

payment services and, on the other side, to the use of the Euro, the European



Council passed in 2007 a framework directive aimed at harmonizing all 

aspects of (non-cash) payments, such as direct debit, credit transfer, card 

payments. The Directive on Payment Services (Directive 2007/64/EC of the 

European Parliament and of the Council of 13 November 2007 on payment 

services in the internal market amending Directives 97/7/EC, 2002/65/EC, 

2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC) lists a 

number of conditions for financial institutions and individual to start and 

operate a business in the payment service industry. The general principle is 

that those activities must be authorized by the member state where the place 

of business is located and authorization cannot be granted to legal persons 

not established in a member state 38 . 

9. Dispute settlement 

a) National jurisdiction 

i. Access to domestic courts and tribunals 

ii. Special rules for resolving disputes involving foreign 

investors/investment before national courts and tribunals? 

National jurisdiction is open to all cases brought by foreign citizens against 

natural or legal persons having a domicile or a residents in Italy, those being 

the criteria for determining the jurisdiction of Italian courts in cases involving 

38 More specific analyses on the impact of the Directive on the Italian system are provided in the articles 

collected in M Mancini, M Perassi (eds), Il nuovo quadro normativo comunitario dei servizi di pagamento, Quaderni di 

ricerca giuridica della consulenza legale della Banca d‟Italia (Roma, Banca d‟Italia 2009).



foreign parties. General rules of international private law, including those 

concerning determinants of national jurisdiction, are contained in the Law on 

May 31, 1995, n. 218, Riforma del sistema italiano di diritto internazionale 

privato (see art. 3). Law 218/1995 provides default rules and refers specific 

issues to international treaties Italy enters. In determining the jurisdiction, also 

EC Regulation No. 44/2001, on jurisdiction and the recognition and 

enforcement of judgments in civil and commercial matters (so called Brussels 

I Regulation), entered into force in Italy on March 1st, 2002, must be 

considered, since such Regulation represents the implementation among EC 

Member States of the Brussels Convention of 1968. 

Italy has a system of civil courts (for general litigation) and administrative 

courts (for matters where one of the parties is the state or the public 

administration, acting with public law capacity). For civil law cases, a first 

degree level (“tribunal”) and an appellate level (“Corti d‟appello”) of 

jurisdiction is granted on the merits, whereas the Court of Cassation (“Corte 

di Cassazione”) can review cases for issues of law, usually after the two levels 

have been pursued by the parties. 

Also on dispute settlement, the principle of reciprocity (art. 16 of the 

Preliminary Provisions to the Civil Code) applies as the general rule, unless 

otherwise provided in specific laws (and treaties) 39 . 

39 See Cass. 29 November 2007, n. 24814, Al Zuhair v Soc. Tecnologie vetroresina (2009) Rivista di diritto 

internazionale private e processuale 182 (an action brought by a Saudi citizen against an Italian company in 

Italy allowed because the same right is given to Italian citizens in Saudi Arabia).



b) International arbitration 

i. ICSID arbitration 

1. ICSID Membership 

2. Any reservation to the ICSID Convention? 

Italy is a member of the ICSID Convention and among the signatory parties 

of 1965. The President of the Republic was authorized with the Law on May 

10, 1970, N. 1093 40 . No reservation were made by the Italian government to 

the text agreed upon by the founding states. 

ii. Other arbitration mechanisms (such as MIGA, UNCITRAL, ICC, 

etc) 

Other arbitration schemes are allowed in Italy and can be invoked by private 

parties in their investment contracts, pursuant to the mechanisms described 

above, under paragraph (4)(c). 

iii. National control mechanism on international arbitration 

1. Non ICSID arbitration (eg national court control on validity 

of arbitral agreements and awards and on the recognition and 

enforcement of awards) 

40 Published on OJ January 12, 1971, N. 8.



Whoever wants to enforce a foreign arbitration award in Italy has to file a 

petition to the president of the court of appeal of the territory where the 

other party has her residency 41 . If the party in not resident in Italy, the Court 

of Appeal of Rome has jurisdiction on the petition. The president of the 

Court, after reviewing the formal regularity of the documents (arbitration 

award and the arbitration agreement or clause filed with by the petitioner), 

issues a decree where the award is declared applicable in Italy. In two cases the 

execution cannot be granted: (a) if the arbitration award relates to subject 

matter excluded by arbitration and (b) if the award contains provisions 

contrary to the ordre public 42 . Against the decision to grant the exequatur or to 

reject an appeal is possible, to be filed within the 30 th day after the 

communication of the decision, before the same Court of Appeal 43 . 

2. ICSID arbitration (e.g., any control mechanism on domestic 

court decisions that may also apply to ICSID decisions?) 

As per article 54 of the ICSID Convention, Italy shall recognize an award 

rendered pursuant to the Convention. Paragraph 2 of the same article refers 

41 A general reading on international commercial arbitration in Italian is P Bernardini, L’arbitrato nel commercio 

e negli investimenti internazionali (2nd edn, Giuffrè, Milano 2008). 

42 The entire procedure is governed by art. 839 of the Italian Code of Civil Procedure. 

43 See article 840 of the Code of Civil Procedure.



to national procedure for recognition and enforcement of ICSID awards, 

which means that, as far as Italy is concerned, the procedure is the same as the 

one followed for other foreign award, as previously described. 

10. FDI statistics, policies and authorities 

a) Statistics of foreign investment activities in the country: trends for 

inward and outward investment? 

A number of public bodies and institutions publishes on a regular basis 

statistics and studies on foreign investment activities, both inbound and 

outbound. The National Bank of Italy runs a number of annual surveys and 

statistics on external transactions and positions and a special attention is paid 

to foreign investments. 

The most comprehensive data is collected and elaborated by the Istituto per il 

Commercio Estero, the national agency that is active in the promotion of 

economic and commercial relationships of Italy with foreign countries. 

Statistics offer data grouped by sector, by geographic areas, by country, by 

region, by class of employees, and by turnover 44 . 

Besides national sources, the OECD annual Report on FDI also has data 

related to Italy, both as outflows and inflows investments are concerned. 

Furthermore, national banks and foreign governments have observatories on 

44 A dedicated web site can be found at the following URL: .

Italy. 



b) Brief history of the development of foreign investment policies 

including current trend of development. 

The development of foreign investment policies in Italy has been 

comparatively slow compared with other Western countries and, in particular, 

with the main European countries 45 . The first activities of territorial 

marketing and the adoption of measures to attract investments from abroad 

did not take off until the first half of the Nineties of the past Century, after 

the Regions were given incentives by the national government through the 

ministerial decree on March 16, 1994 (so called “decreto Baratta”, because of 

the name of the minister Paolo Baratta who was the promoter) 46 . Since then, 

Regions have been active in working out incentives for foreign investors, thus 

emphasizing the peculiarities of the territory of each and the natural local 

resources that could be an opportunity for investors 47 . 

45 The delay in acting to attract foreign investments was matched by a poor scholarly work. The few general 

contributions are F Capriglione, L Desiderio, „Investimenti esteri in Italia (profili generali)‟ XVII Enciclopedia 

giuridica (Treccani, Roma 1989); M Strizzi, „Investimenti esteri in Italia (diritto valutario)‟ ibid.; A Spallanzani, 

„Principi fondamentali dell‟ordinamento valutario italiano. Investimenti esteri in Italia‟ (1986) Rivista del 

notariato 395; G Messa, „Gli investimenti esteri in Italia‟ (1984) Rassegna di diritto e tecnica doganale e delle 

imposte di fabbricazione 807; G Fontana, „Gli investimenti dei capitali esteri in Italia‟ (1984) Società 610. 

46 For a comment of the decree, see N Novacco, „Il «decreto Baratta» del 16 marzo 1994 per la promozione 

degli investimenti esteri in Italia‟ (1995) Rivista giuridica del Mezzogiorno 27. 

47 Economists deal with the impact of FDI policies on regional economies. See F Praussello, „Una 

meta-analisi sui rapporti fra investimenti esteri diretti e crescita di un‟economia regionale‟ (2009) Studi e Note 

di Economia 85.



Structural deficiencies and a bureaucratic administration, as well as an 

inefficient system of civil justice are usually pointed out as the major obstacles 

to foreign investments in Italy and, although much has been done to liberalize 

the economy and remove barriers, still difficulties exist. The annual Doing 

Business Ranking of the World Bank in 2010 places Italy at the 78 th position, 

registering a further step backward with respect to 2009 (when Italy ranked 

74 th ). Almost all index are worse off, except for Enforcing Contracts, where 

Italy rose from 158 th to 156 th , which still means being at the bottom of the 

list 48 . 

c) Governmental authorities involved in a foreign investment regulation, 

including the authorisation and post-authorisation stages. 

Please, refer to previous points. 

11. Any other comments: (Please state here anything that you would like to 

point out, which has not been address in the questionnaire, including any 

distinctive features of your jurisdiction on foreign investment protection.) 

48 Further details on Italy are available at the following URL of the Doing Business Project: 

.

THE ITALIAN CONSTITUTIONAL COURT AS “POSITIVE 

LEGISLATOR” 

______________________________________________ 

GIAMPAOLO PARODI * 

1. A study of cases on the – manipulative, additive, integrative, “creative” 

– decisions by which the Italian Constitutional Court, in the current 

jurisprudential practice, poses as a “Positive Legislator”, requires certain 

introductory remarks on the typology of the constitutional decisions and, 

before that, some outlines of the model of control of constitutionality 

operating in Italy, with particular regard to the proceeding in an incidental way 

. 

Although, especially on the morrow of the constitutional revision of 

2001 that reformed the Italian regional system, the procedure in the direct way 

– on state appeal, for control of regional laws; on regional initiative, for 

control of the legislative acts of the State and other Regions (art. 127 of the 

Constitution) – recorded a considerable quantitative increase, on these pages it 

is opportune to limit oneself to judgment in an incidental manner (incidenter 

proceeding). 

Indeed the latter makes up the seat of control of the constitutionality of 

laws in a general way – any legislative act may be its subject and any 

constitutional provision may make up the parameter –, and in that context the 

typology of constitutional decisions was historically and overridingly 

elaborated, starting from the interpretative and manipulative ones (and 

likewise monitory, or of address, with which the Court directs “warnings” to 

the legislator, in an almost advisory key). 

2. On the basis of the classification criteria habitually followed in studies 

of Italian and comparative constitutional justice, control of constitutionality in 

an incidental way presents a series of elements which determine the ascribing 

to the group of «mixed» systems, i.e. characterized as much by typical 

connotations of the centralized European-continental model as by elements 

exactly of the widespread syndicate (Judicial review of legislation). 

The syndicate of constitutionality in an incidental way entrusted to the 

Constitutional Court presents itself as a centralized control of widespread 

initiative, according to an effective definition now recurrent, which intend to 

underline, on the one hand, the monopoly of the Court for what concerns the 

judgment on laws in its full extension, up to the possible declaratory judgment 

of their unconstitutional character; on the other, the establishment entrusted 

to the initiative of any judge, in the presence of conditions of proposability of 

the relevance and of the not manifest groundlessness (the question of 

* Giampaolo Parodi is Professor of Comparative Public Law at the University of Pavia



constitutional illegitimacy has to be not clearly unfounded). 

One is dealing, wishing to highlight certain qualifying characteristics, of a 

control, or judgment: a) successive (not preventive), having as subject laws 

and equivalent acts already having come into force, and general (not specific) 

in that susceptible to being promoted to scrutinize any flaw of 

constitutionality; b) incidental (not principal), resolution of the question of 

constitutionality being necessary for the continuation or definition of a 

separate common judgment (the main judgment, or a quo judgment); c) 

concrete (not abstract), what appears necessitated by the highlighted 

connection between the main and incidental judgment and the requisite of 

relevance, in the terms described further on; d) jurisdictional (not political, 

despite the political nature that the evaluations of the judge sometimes present 

and inevitable incidence, more or less accentuated, of the constitutional 

decisions in the sphere of political organs); e) in part «of objective law», in that 

(perhaps overridingly) directed at guaranteeing, according to the original logic 

of centralized control, the internal coherence of the legal system and in part 

«of subjective law», in that directed at avoiding that the application of 

unconstitutional laws harms protected subjective positions of individuals, that 

which appears though coherent with the incidental nature of the mechanism; 

f) unwillingness of the a quo judge and of the parties to the a quo judgment; g) 

to unnecessary parties even though possible, the constitution in incidental 

judgment before the Court being a right of the parties in the principal 

judgment, whose missing exercise does not however determine needs of 

integration of the debate (apart from the obligation, which rests on the 

referring judge, of notification to the same of the order of remittal). 

As regards the declaration of unconstitutional character, one is dealing 

with a decision: a) provided with general efficacy (erga omnes); b) limitedly 

retroactive, in terms that it will be necessary to specify more clearly. 

3. Now it is necessary to propose some mention of the “di merito” 

decisions of the Italian Constitutional Court by which a question is declared 

founded or not. 

To this category is necessary to ascribe – among those declaring the 

question unfounded, alongside the decisions of rejection – the numerous 

orders of manifest groundlessness, which, although directed at censuring the 

lack of a condition of admissibility of the question and even though succinctly 

motivated, tackle the question of constitutional legitimacy, declaring it, 

precisely, clearly unfounded. This happens both in the presence of an 

unfounded question ictu oculi, due to an erroneous interpretative assumption, 

of the erroneous reconstruction of the legislative framework or, again, the 

impossibility of having repercussions on ambits reserved to the discretionary 

power of the legislator; both when the Court finds itself faced with a question 

identical to another already declared unfounded, or – not in full harmony with


The Italian Constitutional Court as “Positive Legislator” 

the evident favour for the remittal of the quaestio resulting from art. 1 of const. 

law 1/1948 and art. 23 of law 87/1953 – in the presence of questions simply 

analogue to others already previously declared unfounded. 

For what concerns the decision of rejection, which declares the question 

raised unfounded, one underlines in the literature how this has as subject not 

already a provision, nor a norm deduced in an interpretative way from a 

legislative statement, but rather the question of constitutional legitimacy in 

that it is just that. Indeed, while decisions of acceptance declare the 

unconstitutional character of a provision or a norm, decisions of rejection 

limit themselves to declaring the question of constitutional legitimacy 

groundless, proposed in an incidental or principal way. 

From art. 136, first paragraph, Const. one traditionally infers, arguing a 

contrario, the efficacy only inter partes of the decision of rejection, however put 

in doubt by those who prefer to configure the decision as pending not on the 

quaestio, or on the provision or the norm denounced, but rather on the 

“regulatory situation” (Ruggeri). According to the trend that is by far most 

prevalent – both in the literature, and in the jurisprudence – the decision of 

rejection produces an effect of a preclusive type limited to the a quo judgment, 

under the scope of which the same question declared unfounded may not be 

proposed again, nor sent back to the Court. 

Interpretative decisions of rejection have taken on great importance, and 

more generally, the decision-making techniques – of ever more frequent use – 

directed at promoting the interpretation of the law in compliance with the 

Constitution, or constitutionally orientated, by common judges. 

The decision-making technique typically directed at stimulating the 

interpretative adjustment of the legislative provisions to the Constitution is 

the so called interpretative decision of rejection. Such a decision declares, 

typically, the question raised by the a quo judge unfounded «in accordance with 

which in motivation» (from the most recent, decisions no. 379 and 403/2007; 

no. 2, 10, 165, 211 and 308/2008; 276/2009). Precisely, with the interpretative 

decision of rejection the Court disregards the interpretation proposed in the 

remittal ordinance – implying, but not explicitly declaring, its unconstitutional 

character – and recommends a different interpretation of the same provision, 

compatible with the Constitution. In other words, with the interpretative 

decision of rejection, the question raised is declared groundless, on condition 

that one interprets the provision challenged in the sense indicated in it. 

For what concerns its effectiveness, it is necessary to distinguish. With 

regard to the a quo judge, such a ruling – besides producing the preclusive 

effect typical of the decisions of rejection – is binding on interpretative 

grounds. In the past, there have been cases in the literature of authoritative 

voices in favour of the thesis that obliges the judge referring to the (adjusting) 

interpretation formulated in the motivation (Crisafulli); however, the 

prevailing opinion is in the sense that from an interpretative decision of



rejection there does not derive a positive obligation, but rather a negative 

obligation, in observance of which the a quo judge is simply obliged to not 

insist in attributing to the provision the meaning disregarded by the Court. 

With regard to the judges other than the one who promoted the constitutional 

judgment concluded with the interpretative ruling of rejection, the latter has 

an effectiveness that is merely persuasive, unlike what happens in Germany, 

where the verfassungskonforme Auslegung of the federal constitutional court has 

general effectiveness. On the other hand, faced with a jurisprudence that is 

reluctant to adopt the adjusting indication suggested with the interpretative 

decision of rejection, the Court has always at its disposal the instrument of the 

decision of acceptance to remove, with effectiveness erga omnes, the 

unconstitutional «living law». 

According to the general lines normally followed by constitutional 

jurisprudence, faced with a living law, the Court abstains from its own 

adjusting initiatives: it refers to that, to reject questions raised on the stock of 

interpretations diverging from the consolidated orientation; it declares it 

unconstitutional, if one is dealing with a living law contrary to the 

Constitution. Rarely, in the presence of a unconstitutional «living norm», does 

the Court, instead of declaring the unconstitutional character, invite the a quo 

judge to disregard it and to interpret the provision in a way that complies with 

the Constitution (yet again recently, in the judgment 91/2004, the Court 

clarified that «in the presence of a consolidated jurisprudential orientation that 

has acquired the characteristics of a „living law‟, the evaluation of whether or 

not to abide by such an orientation is a mere faculty of the remitting judge»). 

Recently, however, this general line has tolerated some derogation, there 

being no lack of cases, at times conflictual, of interpretative decisions of 

rejection directed at recommending to the ordinary judge an interpretation 

other than that «living», or however having established itself in the 

jurisprudence of the Corte di Cassazione (Supreme Court), even in the 

presence of an explicit and reiterated refusal of the latter to adhere to the 

interpretation deemed by the constitutional judge in compliance with the 

Constitution, but by the Corte di Cassazione not practicable (exemplary is the 

outcome resulting from the Cass. Pen. Sez. Un. , 17-05-2004, no. 23016 and, 

later, in Const. Court, judgment 299/2005, which, after a long «conflict» on 

the interpretative ground, acknowledged the living law contrary to the 

Constitution and declared its unconstitutional character). 

Probably one is dealing with a reflection of the ever more marked 

tendency of the Constitutional Court to maintain as much as possible on the 

ground of common jurisdiction the work of adjustment of the legislative 

system to the constitutional principles, in the framework of an ever more 

accentuated development of the elements of the judicial review of legislation 

within our system of concentrated control of constitutionality. According to 

the Court, indeed, «any possible residual uncertainties of reading are destined



to dissolve once that pre-eminent, hermeneutic canon has been adopted, 

where the principle of constitutional supremacy that forces the interpreter to 

opt, among the many solutions abstractly possible, for that which makes the 

provision comply with the Constitution» (judgment 198/2003). This trend is 

evident also through an analysis of the numerous procedural decisions of 

manifest inadmissibility; in the most recent jurisprudence, in fact, such 

decisions are generally speaking preferred, in function of stimulus of the 

constitutionally orientated interpretation, to the same interpretative decisions 

of rejection (among the interpretative decisions of rejection in recent 

jurisprudence, cf. Const. Court, judgment 198 and 233/2003). 

4. The decisions of acceptance, it is necessary first of all to state some 

notions with regard to the effects of a decision of unconstitutional character. 

The question about the effectiveness of the declaration of unconstitutional 

character in accordance with arts. 136 Const. and 30 law 87/1953 has 

invariably superimposed, just as happened in the context of other judicial 

systems, that relative to the declarative or rather constitutive nature of the 

decisions of acceptance and that concerning invalidity or the annullability of 

the unconstitutional law. The prevalent literature – but not unanimous – has 

come out in favour of the thesis of annullability of the provision declared 

unconstitutional, even on the basis of the consideration, borrowed from 

Kelsen, according to which «an invalidity that cannot be ascertained if not by 

one organ, through a particular procedure to the exclusion of every other, is 

solved... in a form of annullability, and not of nullity» (Crisafulli). 

It has also been pointed out that the value at least partially constitutive of 

the declaration of unconstitutional character should be deduced directly from 

art. 136 Const., which, envisaging the cessation of effectiveness of a law 

declared unconstitutional, «presupposes that, prior to the decision, the law 

itself had such effectiveness» (Pierandrei). On the other hand, the cessation of 

effectiveness ex art. 136 «is not... a removal of the „effects‟ already produced: it 

is the „deprivation‟ (that the law is to suffer) of that capacity to produce effects 

and that, consequently, no longer allows the very same law to be able to 

„continue‟ to regulate (or to impose the discipline of) certain situations» 

(Politi). The declaration of unconstitutional character, one adds, constitutes an 

element of the case in point delineated by art. 136 Const. and by art. 30 of the 

law 87/1953, so that the loss of effectiveness and the obligation of non 

application, even for the past, of the law declared unconstitutional intervene 

not yet directly as a result of the ruling of the Court, but as a consequence of 

the ascertainment contained in the ruling of acceptance, respectively ope 

constitutionis and ope legis (Zagrebelsky). 

The question about the declarative or better constitutive nature of the 

decision of acceptance has received an articulated response, on the basis of 

which the decision of acceptance would combine elements of declarative type



and elements of constitutive type, presenting itself, according to a first setting 

out, as a ruling of «constitutive ascertainment» (Pierandrei, Pizzorusso). Later, 

this reconstructive hypothesis was clarified, attributing to the decision of 

unconstitutional character a declarative value of the invalidity (as a relation of 

antinomy between the censured provision and the Constitution) and 

constitutive, instead, of the ineffectiveness (Guastini, Modugno). This 

decision in effect raises, ex novo, a generalised and ratified obligation, formerly 

non-existent, of disapplication of the provision, or norm, struck by the ruling. 

For its part, the Court particularly emphasised the differences between 

the premises of the abrogation and the declaratory judgment of 

unconstitutional character – the latter implying the invalidity of the legislative 

provision in question – to configure the ruling of acceptance as a decision of 

annulment (Cf. Const. Court judgment 127/1966; 58/1967 and 49/1970). 

Besides with regard to the organs of application, the annulment by the 

Constitutional Court has effects also with regard to the legislator, subjected to 

the obligation of the constitutional decision. The constitutional jurisprudence 

has indeed clarified that the decisions of acceptance have as receiver not only 

those who are called on to apply the law, but also the legislator, for whom it is 

«estopped to pursue and reach, directly or indirectly, outcomes corresponding 

to those already deemed detrimental of the Constitution» (judgment 

223/1983; cf. also the successive judgment 922/1988). 

The decision of unconstitutional character as a decision of annulment, 

having effectiveness erga omnes under the scope of a model concentrated on 

control of constitutionality, opposes the disapplication of the unconstitutional 

law, having effectiveness inter partes and particularly of the judicial review of 

legislation. 

For what concerns the question relative to the limits of effectiveness ex 

tunc of the decision of acceptance – which, as is habitually said, does not affect 

the «exhausted relations» – it is to be solved through «the interpretation and 

application of ordinary law, under the scope of the competence of the 

jurisdictional organs» (Const. Court, judgment 127/1966; in accordance with 

Const. Court, judgment 49/1970). The events and the institutions, of 

procedural and substantial order, which may bring about the exhaustion or the 

intangibility of a situation or a legal relationship, precluding any contestation 

in an irrevocable way, are numerous; among others, the becoming final, the 

procedural preclusions, and the decadence from power to contest an 

administrative act or debarment. 

The limit of exhausted relations does not operate in relation to penal 

decisions of condemnation, in the terms of art. 30, fourth and final paragraph, 

of the law 87/1953.



5. For what concerns the typology of the decisions of unconstitutional 

character, it is necessary first of all to make reference to the simple decisions 

of “acceptance” (“accoglimento”) and the interpretative decisions of acceptance. 

The jurisprudence has delineated a much higher number of case studies 

that that which appeared imaginable at the time of the coming into force of 

the Constitutional Court, consolidating – alongside the decision of simple 

acceptance, declarative of the constitutional illegitimacy of a provision (of a 

legislative statement) – models of decisions of «partial» unconstitutional 

character, aimed at censuring at times segments of legislative provisions, at 

others normative meaning contrary to the Constitution, identified among 

those jointly or alternatively expressed by the provision contested. 

A first variant is that of the interpretative decisions of acceptance, with 

which the Court declares the unconstitutional character of one of the norms 

alternatively, or separately, expressed by a provision. 

The literature has spotlighted both the structural and functional affinities 

that bring together interpretative decisions of acceptance and interpretative 

decisions of rejection, and the differences. In the latter respect, in the 

interpretative decision of rejection the unconstitutional interpretation remains 

in the shadow, while on the contrary, in the interpretative of acceptance the 

interpretation in accordance with the Constitution remains in the shadow; 

furthermore, the effectiveness erga omnes specific to the decisions of 

acceptance makes the outcome of promotion of the interpretation in 

accordance with the Constitution more certain. 

According to a scheme followed especially in the initial period of activity 

of the Court, but occasionally reproposed even in recent times, in application 

of the principle of conservation of normative documents and that of the «least 

repercussive solution» (Zagrebelsky), the Court exercises its function of 

guidance with regard to the interpreters first of all pronouncing, as long as 

there is no consolidated «living» unconstitutional interpretation, an 

interpretative decision of rejection; and secondly, once the poor 

jurisprudential outcome of the adjusting interpretation recommended with the 

first decision has been ascertained, pronouncing, under the logic of the 

«double ruling», an interpretative decision of acceptance or, possibly, a pure 

and simple decision of acceptance (exemplary – and always recalled in this 

respect – the age old matter of art. 2 T.U.L.P.S. (Consolidated act of public 

security), subject first of an interpretative decision of rejection, no. 8/1956, 

and later, having verified the persistence of an application contra constitutionem, 

of an interpretative decision of acceptance no. 26/1961). 

6. For what regards the main subject of this contribution, namely 

“manipulative” decisions, the conviction is widespread that certain decisions 

of acceptance, despite leaving the text of the provision declared 

unconstitutional unaltered, the transform the normative meaning, at times



reducing, at others extending the sphere of application, not without, especially 

in the second case, introducing a new norm into the legal system, or 

“creating” new norms. In this regard one speaks of “manipulative” (or 

“manipulating”) decisions, into which typically enter – according to the 

prevalent literature – additive and substitutive decisions, as well as, along with 

these, according to a more extensive classifying option, the rulings of partial 

acceptance: both the “non textual” ones (which leave the text of the provision 

subject of the judgment unaltered); and the “textual” decisions of partial 

acceptance, should there derive a mutilation of the legislative provision 

(declared unconstitutional limitedly to certain words) able to change the 

meaning. However, theoretical reasons to consider the same interpretative 

decisions of acceptance in a certain sense manipulative are not totally lacking. 

The notions of interpretative decision and manipulative decision are in 

part heterogeneous. The first of the two, indeed, preferably makes reference 

to the subject of the ruling: a norm obtainable in an interpretative way from a 

legislative statement, rather than a provision, or one of its segments (in this 

sense, the notion fits both the interpretative decisions of acceptance in a strict 

sense, and the “non textual” decisions of partial acceptance); the notion of 

manipulative decision usually throws light on a peculiar effect of the ruling: 

of alteration and, precisely, manipulation of the meaning prima facie of the 

provision contested, which, on the textual plane, (apart from the case recalled 

above of certain “textual” decisions of partial acceptance) remains unaltered. 

Ascribable to the category of manipulative decisions are, in first place, 

the interpretative decisions (or decisions of non textual partial acceptance), 

which declare the unconstitutional character of one of the norms jointly (or 

cumulatively) expressed by the provision denounced or, perhaps more 

correctly – as in the German literature one says with regard to the decisions of 

partial invalidity of the BVerfG – reduce the sphere of application 

(Anwendungsbereich) of the provision affected by partial constitutional 

illegitimacy 1 . 

In these hypotheses, the Constitutional Court does not move from the 

premise – on which the diverse technique of judgment of the interpretative 

decision of acceptance as strictly understood is founded – of a multiplicity of 

possible alternative interpretations, to strike one of the statutes separately 

expressed by the provision denounced 2 . The interpretative decision of partial 

1 In the most recent jurisprudence, cf., ex plurimis, Const. C., judgment no. 148, 149,185, 239, 

360/2003; no. 135, 186, 223, 334, 335 and 339/2004; 199/2005; no 379 and 403/2007; no 2, 10, 165, 211 and 

308/2008; 276/2009. 

2 Strictly speaking, premise of the interpretative decision of partial acceptance is the attribution to the 

provision contested of a certain normative meaning, albeit complex. For instance: “If a, b, or c, then X”, 

meaning that results partially unconstitutional, limitedly to a case in point – for instance, c – to which one 

applies the consequence or the legal qualification envisaged (in the example proposed, X).There is no 

hermeneutic alternative, nor a doubt about the applicability of the provision in question in case c. One moves, 

on the contrary, from the assumption that it applies to the case c, to pass to declaring the provision 

unconstitutional just in the part in which it re-includes such a case in point.



acceptance results manipulative in the limits in which it reduces the 

normative meaning, or, better, the sphere of applicability, of the legislative 

ruling, leaving the text unchanged 3 . 

The decisions of partial acceptance pending (not just on norms, or 

normative meanings, but rather) on provisions or segments of a provision, do 

not have a really manipulative effect should the provision or a part of the 

legislative provision declared unconstitutional (according to the formula: “art. 

x of law y is constitutionally illegitimate limitedly to the words “…”) 

correspond to a self-sufficient norm, isolable from the other normative 

meanings expressed by the contested provision and likewise the legislative text 

that remains, in its normative meaning, results autonomous. One is dealing, in 

these cases, with a decision provided with the usual “caducatory” effects with 

regard to a legislative provision, or one of its segments 4 . 

The manipulative nature of the decision of partial “textual” acceptance 

results evident instead whenever it provokes a mutilation of the provision 

denounced as such to alter or, at times, invert the sense (think, for instance, 

of a declarative decision of the unconstitutional character of a provision 

limited to a negation, or to a clause of exclusion, inserted in it) 5 . 

For what concerns the question of the effectiveness of the manipulative 

constitutional decisions – in particular of the additive and substitutive 

decisions, often qualified as “normative”, or “creative” –, one has pointed out 

how they in reality make explicit norms (of legislative type, already implicit in 

the system) which legitimately impose themselves with effectiveness erga omnes 

on subjects of the legal system, since the ruling of the Constitutional Court, in 

its additional profile, results constitutionally imposed and “with obliged 

rhymes” 6 . 

According to a different and more up to date reconstruction 7 , one 

distinguishes between an “ablatory” profile and an additive (or substitutive) 

profile of the additive (or substitutive) decision, to recognise only for the first 

binding effectiveness erga omnes, and to the second the value of mere, though 

authoritative, proposal, aimed at the interpreters, of integration of the law 

made incomplete by the caducatory part of the ruling 8 . 

In the most recent literature in effect the trend is widespread to consider 

the additive judgments not yet – as in the traditional perspective – declarative 

3 Cf. for instance, ex plurimis, Const. C., judgment no. 356/1991; n. 238 and no. 311/1996. 

4 Cf. for instance Const. C., judgment no. 424/1995. 

5 Cf. for instance Const. C., judgment no. 340/1992. More recently, Const. Court, judgment no. 

390/2004. 

6 Crisafulli, Lezioni di diritto costituzionale, cit., 408. 

7 For a review of the apparent logical foundation of traditional literature cf. spec. Lavagna, Sulle 

sentenze “additive” della Corte costituzionale, in Giur. it., 1969, IV, 151, now in Id., Ricerche sul sistema normativo, 

Milan, 1984, 669 ss. 

8 Cf. Picardi, Le sentenze “integrative” della Corte costituzionale, in Scritti in onore di Costantino Mortati, Milan, 

1977, 597 ss.; Zagrebelsky, La giustizia costituzionale, cit., 301 s.



of the unconstitutional character of the legislator's omissions 9 , rather than 

declarative of the unconstitutional character of implicit norms (or “living” 

rules) of exclusion 10 , inferable in an interpretative way of the provision of law 

censured, in the part in which it does not envisage something 11 . More 

precisely, according to the doctrinal orientation, the additive decision consists 

of two profiles: an ablatory (or caducatory) profile; and an additive (or 

integrative) profile. Of the two, only the first is considered binding erga omnes, 

in that it coincides with the declaratory judgment of unconstitutional character 

of an exclusive norm implicit in the provision contested; the second profile is 

instead deemed to merely persuasive effectiveness: that is it suggests, 

authoritatively, the direction towards which the organ shall orientate itself in 

the application called to integrate the law made incomplete by the ablatory 

intervention imputable to the binding part of the decision. In the light of such 

a reconstruction, the overridingly explicit function of additive decisions is that 

of orienting the integrative activity of the organs of the application: 

integration of lacunae provoked by the constitutional decision, or to those 

pre-existing, in the case one understands the additive decision as pending on 

omissions of the legislator 12 . 

Within the category of the decisions having additive dispositives, it is 

opportune to distinguish between: traditional additives, of first generation, 

characterised by a “precise” dispositive; additive with indeterminate 

dispositive; additive of principle, or with generic dispositive. 

6.1. The first, as has been said, are aimed at integrating the legislative 

rules and regulations through the introduction of a statute – “non-existent” 

before, or in any case ineffective – suitable to receive immediate application 

by the jurisdictional organs without the exercising, on their part, of 

interpretative discretionality 13 . 

9 On legislative omissions as subject of the additives and their classification cf. Mortati, Appunti per un 

studio sui rimedi giurisdizionali contro i comportamenti omissivi del legislatore, in Foro it., 1970, V, 153 ss.; Delfino, 

Omissioni legislative e Corte costituzionale (delle sentenze costituzionali c.d. creative), in Studi in onore di G. Chiarelli, II, 

Milan, 1974, 911 ss.; Silvestri, Le sentenze normative della Corte costituzionale, in Scritti in onore di Vezio Crisafulli, I, 

Padova, 1985, 778; Grosso, Sentenze costituzionali di spesa “che non costino”, Turin, 1991, 22 ss.; Parodi, La decisione 

additiva a dispositivo generico, Turin, 1996, 122 ss. 

10 In this sense, Paladin, Corte costituzionale e principio generale d‟eguaglianza: aprile 1979-dicembre 

1983, in Scritti in onore di Vezio Crisafulli, cit., 636; Elia, Le sentenze additive e la più recente giurisprudenza della Corte 

costituzionale (ottobre 1981-luglio 1985), ivi, 302 ss. 

11 Pugiotto, Dottrina del diritto vivente e ridefinizione delle sentenze additive, in Giur. cost., 1992, 3695 ss. 

12 According to Elia, Le sentenze additive e la più recente giurisprudenza della Corte costituzionale (ottobre 1981luglio 

1985), cit., 307 ss., 323 ss., the ruling of an additive decision usually presupposes renouncement of a an 

interpretative decision of rejection, aimed at recommending an adjusting interpretation of extensive type. 

13 In the recent jurisprudence, cf. Const. C., judgment no. 169, 211, 253, 262, 275, 345, 371 and 

350/2003; no. 35, 98, 113, 206, 222, 245, 253 and 367/2004; no. 1, 11, 12, 77, 79, 88, 89, 158, 165, 201, 245, 

254, 269, 270, 321, 329, 339 and 401/2007; no. 50, 51, 63, 70, 94, 142, 143, 144, 160, 167, 168, 181, 278, 323, 

336, 387 and 400/2008; no. 11, 19, 28, 75, 86, 87, 124, 151, 173, 177, 183, 207, 232, 247, 273, 294, 317, 333 

and 339/2009.



6.2. As for the second, one is dealing with rulings which presuppose an 

integration of the legal system imposed by the Constitution, but indicated in 

the dispositive in indeterminate terms, so as to leave to the organs of 

application a margin of interpretative discretionality. Additive decisions with 

indeterminate dispositive do not postulate the unavailability of a solution 

univocally inferable from the constitution, but are characterised by a greater 

vagueness compared to the “self-applicative” 14 dispositives. Naturally, the 

vagueness of the dispositive, preordained to confer to the judge a power of 

concretisation of the same dispositive, may also characterise substitutive 

decisions and of partial acceptance. 

6.3. In the most recent constitutional jurisprudence, especially starting 

from the end of the '80s, one records a new type of decisive instrument, 

named, more often than not, “additive decision of principle”. At times, 

reference is made to this variant of the additive ruling also by means of 

further denominations: “declarative decision”, “additive of mechanism”, 

“additive with generic dispositive”. One is dealing with rulings characterised 

by a generic formulation, as well as indeterminate of the dispositive, which 

limits itself to declaring the unconstitutional character of the provisions 

contested in the part in which they do not envisage a mechanism, a criterion, 

or a normative solution – among the many that may legitimately, and 

therefore indifferently, from the point of view of the constitutional rules, be 

hypothesised – of adjustment, equalisation, updating and the like. Despite the 

additive structure of the dispositive, such decisions do not introduce – to take 

up a reconstruction of the additive decisions still supported by some credit – 

“precise”, or “self-applicative” norms, to the legal system, neither do they 

suggest to the jurisdictional organs called on to give a follow-up to the 

constitutional decision integrative solutions univocally inferable from the 

constitution, or from the legislative system 15 . 

An explicit and fundamental premise of generic additive dispositives is 

the concurrence of a plurality of solutions suitable to make good or overcome 

the unconstitutional lacuna, among which, by express recognition by the 

Court, only the legislator is competent to choose. The decision-making 

14 The dispositives of interest here include indeed terms and locutions ascribable to the category of 

the juridical, or legislative concepts, which the German jurist qualifies as indeterminate (unbestimmte 

Rechtsbegriffe, unbestimmte Gesetzesbegriffe), formulated thus with the aim of attributing to the organs of 

application a particularly accentuated discretionality in order of their concretisation. Cf. for instance Const. 

C., judgment no. 218/1994, which declared a provision of the law no. 135/1990 on the subject of the fight 

against AIDS unconstitutional , “in the part in which it does not envisage sanitary ascertainments of the 

absence of seropositivity to infection from HIV as a condition for the expletion of activities that involve risks 

for the health of third parties”. But one could also mention the well known judgment no. 27/1975, on the 

subject of voluntary interruption of pregnancy; judgment no. 303/1996, on the subject of adoption and 

judgment no. 239/1998, on the subject of war pensions. More recently, judgment no. 151/2009, on artificial 

insemination. 

15 Cf. Parodi, La sentenza additiva a dispositivo generico, cit., 112 ss.; Id., Le sentenze additive di princìpio, cit., 

160 ss.



technique that one is dealing with allows the Court to avoid, in such a 

situation, recourse to the “defeatist” solution, and inspired by excessive self 

restraint, of the decision of inadmissibility of the question, in the presence of 

an additive petitum which does not appear “with obliged rhyme” 16 . At the 

origin of additive decisions of principle the need to avoid, or at least limit, 

undesired practical consequences is also recognisable, especially of a financial 

order, but not only, which with the ruling of “traditional” additive decisions 

could produce themselves immediately. These decisions are also presented as 

more respectful of the sphere reserved to the discretionality of the legislator, 

even though, frequently, they are adopted to promote the direct application of 

constitutional principles indicated in them by the jurisdictional organs 17 . 

Decisions with a generic dispositive are said to be additive of principle 

because principles are formulated in them, precisely, destined to guide both 

the legislator, in the necessary normative activity subsequent to the ruling, 

aimed at remedying the unconstitutional omission; and ordinary judges, so 

that, while waiting for the legislative intervention, they find, with integration 

of law, a solution for the controversies submitted to them. This is theorised in 

a particularly perspicuous way in the decision of the Constitutional Court no. 

295/1991, in the following terms of general importance: “the declaration of 

constitutional illegitimacy of a legislative omission– such as that recognised in 

the hypothesis of missing anticipation, by the regulating statute of a 

constitutionally guaranteed right, of a mechanism suitable to ensure the 

effectiveness of this – while it leaves to the legislator, recognising the 

undeniable competence, of introducing and disciplining even retroactively 

such a through general legislation, it gives a principle to which the ordinary 

judge is able to make reference to place a remedy in the meantime to the 

omission at the time of identification of the rule for the concrete case”. 

One is dealing with rulings characterised by a dual function: on the one 

hand, to orientate the legislator in fulfilment of the obligation of reform 

deriving from the constitutional parameters applied and specified by the 

decision of the Court; on the other, awaiting the intervention of the legislator, 

and thanks to the principles “purveyed” with the additive decision with 

generic dispositive, to guide ordinary judges called on to fill the 

16 The inadmissibility of the question is still the solution adopted in the presence of requests for 

extraneous additive interventions, for their “openly creative character”, to the powers of the Court, and 

coming into the discretionality of the legislator, as one reads in Const. C., judgment no. 382/2004; in an 

analogous sense, judgment no. 175/2004, which censured the “abnormality” of the request formulated by the 

judge a quo. Cf. also Const. C., judgment no. 2, 33, 332/2003; ord. no. 76/2003; ord. no. 83, 112, 145, 185, 

199, 225, 233, 249, 333 and 381/2007; judgment no. 202, 240, 251, 325, 376 and 431/2008; ord. no. 31, 58, 

116, 177, 186, 270, 293, 299, 316, 333, 379, 406 and 421/2008. 

17 This refers to the “substitution” of the legislator by the jurisdictional organs favoured by the 

decision-making technique that Bartole deals with, I requisiti dei procedimenti giurisdizionali e il loro utilizzo nella 

giurisprudenza costituzionale, in Giur. cost., 1999, 199.



unconstitutional lacuna at the time of the definition of the concrete 

controversies submitted to them 18 . 

Along with this category of additive decisions of principle, explicitly or 

implicitly addressed at both the legislator, and to the judges, one should point 

out additive decision of principle explicitly or implicitly directed only at the 

legislator. If, indeed, in the cases recalled above, the jurisprudential follow-up 

of the additive decisions of principle often records difficulties and 

uncertainties, in other cases the successive practice with decisions having 

generic dispositives has highlighted a substantial incapacity to express 

applicative solutions in accordance with the principles indicated by the 

Court 19 . In these cases, and in those in which it is the same additive decision 

of principle that presents itself as addressed only to the legislator 20 , the ruling 

appears as a decision merely declarative of the unconstitutional character of 

legislative omissions, not fully in line with art. 136 Const. and with art. 30 of 

the law no. 87/1953, which postulate the annulment of a legislative norm as a 

normal, or rather necessary, effect of the declaration of unconstitutional 

character 21 . Then there is no lack of decisions which, with regard to their 

receivers, do not contain indications whatsoever 22 . With this in mind, it is 

however easy to notice that, more than from the self-referential indications, 

more or less explicit, contained in the additive decision with regard to its own 

receivers and effects, the development of a jurisprudential follow-up in 

accordance with the principles formulated by the decision – awaiting the 

necessary legislative intervention, considered non-fungible – depends 

essentially on the concrete possibility of filling the lacuna (axiological 23 ) 

censured by the Court and on the choices of the interpreter faced with the 

legislative omission declared unconstitutional, with regard to the direct 

applicability of the constitutional principles from time to time relevant 24 . 

For what concerns the effectiveness of additive decisions of principles 

with regard to the legislator, some attach a binding value to the decision where 

it sets out a “principle of living constitutional law” 25 ; others attach binding 

18 Cf. Const. C., judgment nos. 560/1987; 406 and 497/1988; 420 and 421 /1991; 88/1992; 288/1994; 

284/1995; 143/1997. Judgment no. 179/1999 and 160/2008 can also be assimilated to these. 

19 Cf. Const. C., judgment nos. 204 and 232/1992; 243/1993; 376/1994; 171/1996; 280/2005. 

Judgment nos. 201 and 339/2007; 1/2008 could also be assimilated to these. 

20 Cf. Const. C., judgment nos. 390/2000; 185 and 417/1998; 309/1999; 243/1993; 277/1991. Lastly, 

Const. C., judgment nos. 196/2004; 219/2005. 

21 In this sense Celotto, Corte costituzionale e legislatore. Riflessioni sugli interventi normativi volti a limitare 

l’efficacia nel tempo di decisioni di incostituzionalità, in Modugno (edited by), Trasformazioni della funzione legislativa, I, I 

“vincoli” alla funzione legislativa, Milan, 1999, 160 ss.; Id., Impresa artigiana: indebito contributivo e interessi, in Mass. 

Giur. lav., 1999, 303 s. 

22 Cf. for instance Const. C., judgment nos. 26 and 61/1999. 

23 Cf. G. Parodi, Lacune e norme inespresse nella giurisprudenza costituzionale, in Comanducci, Guastini 

(edited by), Struttura e dinamica dei sistemi giuridici, Turin, 1996, 87 ss. 

24 On the jurisprudential follow-up to additives of principle cf., lastly, Lamarque, Il seguito giudiziario 

delle decisioni della Corte Costituzionale, cit., 217 ss. 

25 Zagrebelsky, Problemi in ordine ai costi delle sentenze costituzionali, in Le sentenze della Corte Costituzionale e 

l’art. 81, u.c., della Costituzione, Milan, 1993, 150.



effectiveness to them in consideration of its nature of decision of 

acceptance 26 . There are those who doubt the legally binding nature of the 

rulings in question with regard to the legislator, and assimilate in substance 

their effectiveness to that of the other constitutional decisions with 

exhortative significance, even if one is dealing with, in the case of the additives 

of principle, of invitations addressed to the legislator strengthened by the 

circumstance of being formulated “in a decision qualified as being of 

acceptance, rather than in a decision qualified as of inadmissibility” 27 . In this 

regard, the practice of the last twenty years has shown a legislative follow-on 

not always well timed, but generally adequate in the fulfilment of the 

obligations deriving from the decisions one is dealing with. 

The typology of the manipulative constitutional decisions also includes 

substitutive decisions, which declare a legislative provision unconstitutional, in 

the part in which it envisages something, rather than something different. At 

times the statute, or the fragment of the statute, indicated in substitution is 

formulated between inverted paragraphs, as if one were dealing with a 

fragment destined to take the place of that declared unconstitutional: in this 

case one sometimes speaks of ”textual” substitutive decisions 28 . Other times, 

the substitutive ruling formulates the norm destined to take the place of that 

declared unconstitutional, without expecting to insert new fragments in the 

text of the provision declared constitutionally illegitimate 29 . The trend is 

widespread to reconstruct this type of decision as the combination of a 

decision of partial acceptance and an additive. 

7. Some time must be dedicated to the modulation of the temporal 

effects of the decision of unconstitutional character. 

26 According to Anzon, Nuove tecniche decisorie della Corte Costituzionale, in Giur. cost., 1992, 3213, if the 

legislator disregards the indications contained in the additive decision of principles “would violate the precept 

of the immediate and general binding effectiveness, as per art. 136”. 

27 Pizzorusso, Corte costituzionale: un nuovo tipo di sentenza?, in CorG, 1993, 773 s. On the “admonitions” 

and the auspices addressed to the legislator, cf. Pegoraro, La Corte e il parlamento. Sentenze-indirizzo e attività 

legislativa, Padua, 1987. In the most recent jurisprudence, the “auspice” of a new discipline of the subject is 

formulated in the decisions of rejection nos. 71, 346 and 264/2003. A real and true admonition of the 

legislator is contained in the decision 310/2003, in which, even though recognising the groundlessness of the 

censures prospected, one states, on the theme of suspension of the executive procedure for the release of 

immovables, that such a procedure “cannot be paralysed indefinitely with a series of pure and simple 

extensions, beyond a reasonable limit of tolerability”. This admonition was reiterated in the successive 

judgment no. 155/2004, in which one states that, should the legislative choices “follow still further the logic 

adopted up until now, they could not subtract themselves from the proposed censures of constitutional 

illegitimacy …, also in consideration of the vulnus that the protraction of the extensions cause to the principle 

of the reasonable duration of the proceedings to the coherence of the legal system”. 

28 Cf. for instance Const. C., judgment nos. 215/1987; 440/1988; 27/2005. 

29 Cf. for instance, among the best known, Const. C., judgment no. 15/1969, which declared the 

constitutional illegitimacy of art. 313, third co., c.p., “in the limits in which it attributes the power to give 

authorisation to proceed for the crime of contempt of the Constitutional Court to the Minister of Justice 

instead of to the Court itself”. More recently, Const. C., judgment no. 104 and 301/2003; no. 204, 224, 281 

and 426/2004; 222/2005.



Of particular importance for the purposes of this contribution is the 

practice, recently reproposed after a fifteen-year period of almost total 

abeyance, of the modulation of the temporal effects of the declaratory 

statement of unconstitutional character. 

In the Italian system of control of constitutionality the possibility of 

limiting or modulating the effects over time of the declaration of 

unconstitutional character is not expressly envisaged. It has been seen that, in 

the Constituent Assembly, one set aside the proposal of borrowing from the 

Austrian system the instrument of Fristsetzung 30 ; and also in more recent times 

the hypothesis of introducing into the Italian Constitution a solution inspired 

by the Austrian model, matured in the parliamentary commission for 

constitutional reforms set up by the constitutional law no. 1 of 1997, has not 

had, with the entire project of revision, any follow-on 31 . 

In the jurisprudential seat, nonetheless, techniques of decision aimed at 

limiting normal effects of the ascertainment of unconstitutional character have 

been widely experimented and assigned to many functions. In first place, to 

prevent the caducatory effects of the decision from being retroactive prior to 

the moment in which the unconstitutional character supervenes, whenever 

this is not originary. In second place, to avoid the undesired consequences of 

the declaratory judgment of unconstitutional character (legislative voids; 

compromising of the necessary guarantee of constitutional rights; residual 

disciplines even farther from the Constitution; new or higher financial 

burdens for the state, or for other public bodies). In third place, to declare the 

unconstitutional character of an omission of the legislator, without invading 

the sphere reserved to the discretionality of the latter. 

Thus one distinguishes, on the one hand, the declaration of 

constitutional illegitimacy that supervened “in the true sense”, aimed at 

preventing the caducatory effects of the decision from being retroactive 

unjustifiably prior to the moment in which the illegitimacy supervened; on the 

other hand, the non-retroactive decision of acceptance, or only partially 

retroactive, dictated by worries of a practical nature 32 . In both cases one is 

dealing with declaratory judgments of unconstitutional character – remitting 

to the concept of constitutional illegitimacy that supervened or successive 

more or less explicitly according to the greater or smaller properties of such a 

qualification – with an indication, in the dispositive, of the non retroactive 

character, or only limitedly retroactive, of the effects of the decision (the 

declaration of unconstitutional character that supervened may also include the 

specification of dies a quo, of the moment i.e. starting from which its effects 

are destined to be produced). 

30 Cf. supra, par. 1. 

31 Cf. infra, par. 4. 

32 For all, cf. Romboli, Il giudizio di costituzionalità delle leggi in via incidentale, in Id. (ed.), Aggiornamenti in 

tema di processo costituzionale, Turin, 1999, 188 ss.



Decisions of the second type, declarative of the unconstitutional 

character that supervened “in an improper sense”, respond at times to the 

logic of the “dual ruling”. Indeed they may be preceded by admonitory (or 

exhortative) decisions of precarious rejection 33 , or, possibly, by decisions of 

inadmissibility, also these with a more or less accentuated admonitory 

importance. 

In the jurisprudence of the latest period one finds important cases of 

limitation and deferment of the effects in time of the declaration of 

unconstitutional character, not properly evocative of the figure of the 

supervened unconstitutional character. In these cases, the Court declared the 

unconstitutional character of legislative provisions by the state successive to 

the const. law no. 3/2001 and detrimental to the new regional attributions, 

explaining that the state discipline censured would not have ceased to find 

application until the arrangement and the coming into force of the new 

regional regulations and setting aside the administrative procedures in 

progress and founded on the first, even if not yet exhausted, to avoid that, due 

to the situation of normative void determined by the ruling of acceptance, the 

guarantee of constitutional rights might result compromised 34 . 

Beside the techniques of judgment specifically aimed at containing the 

effects of the ascertainment of unconstitutional character, the practice of the 

Constitutional Court also knows models of decision aimed at procrastinating a 

decision of acceptance though possible, as it were, with the state of things, 

through procedural rulings of as dilatory type (in the German literature one 

writes of Entscheideungsverzögerung), or by means of precarious decisions of 

rejection (analogous to the so called Appellentscheidungen of the German 

BVerfG), declarative of the “provisional constitutionality” of the contested 

discipline. In these rulings, the illegitimacy of the normative is only 

overshadowed, not yet expressly stated; at times, more or less explicitly, one 

alludes to a future illegitimacy, about to show itself, but not yet supervened 

(the discipline contested, one reads in the decisions of the BVerfG, is “still in 

accordance with the constitution”). 

33 Paradigmatic the jurisprudential event of the legislative exclusion of publicity of the hearings before 

tax commissions, concluded with the judgment of the Constitutional Court no. 50 of 1989. 

34 Cf. Const. C., judgment nos. 370/2003; 13 and 423/2004, on the subject of education. Cf. also 

Const. C., judgment nos. 16 and 49/2004. A little after is judgment no. 426/2004, extraneous to the regional 

subject, but explicitly directed at limiting its own effects over time.

PLURALITY OF POLITICAL OPINIONS AND THE 

_________________________________________________ 

CONCENTRATION OF MEDIA 

VINCENZO ZENO-ZENCOVICH * 

I. General considerations 

1. What are the “media” to you: press, radio, online communication, the cinema, 

advertising, publishing, music, film and audiovisual production, distribution (press, 

books, cinema ...)? Does the concept of “media” need to be redefined because of 

technological convergence and changes brought by the Internet? 

The dominant notion of “media” in Europe – and therefore in Italy – is still 

strongly defined according to pre-digital mediums of communications: i.e. the 

press, radio and television. This notion is obsolete and in a few years will be 

come of archaeological interest. The multiplication of new forms of 

communication, through electronic communication networks, has three 

fundamental consequences: 

a) as in many other sectors (e.g. financial markets, tourism, consumer sales) 

electronic networks have a “disinter-media-ting role”. Once one had to 

rely on the press or the radio and television to obtain information: from 

the list of films shown, to the weather, to official documents and finally to 

news. Now, practically all of this is available on-line, directly from the 

producer of the information, or from what would not be considered 

traditionally as “media” (e.g. Google) 

b) in the traditional European – and therefore Italian - constitutional acquis 

there was a substantial difference between the freedom to inform (from 

one to many) and the freedom to communicate (from one to one). The 

first freedom was built on the paradigm of freedom of the press; the 

second on the freedom of correspondence. Nowadays each recipient of a 

digital content can modify it, create new content, disseminate it. We have 

the possibility to do it at practically no – or very little – cost through user 

generated content services (You Tube, Google Video, Flickr, Facebook, 

Photobucket etc.). Are we all “mediums”? 

The current situation shows – beyond any reasonable doubt – how the 

European obsession on pluralism (the latest exercise in this field being the 

EU “Study on Indicators for Media Pluralism”) has no real connection 

with the way European citizens acquire information, make themselves an 

opinion, participate in the political discourse. To look at things from a 

critical perspective the much-ado-about-pluralism is a hypocritical blanket 

which aims at protecting the economic and political interests of printed 

media groups and public broadcasters. 

* Vincenzo Zeno Zencovich is Professor of Comparative Private Law at Roma Tre University



2. What are the sources that guarantee the preservation of the plurality of the “media” in 

your country? Where do those sources stand in the hierarchy of standards: Constitution, 

statutes, general principles? 

In Italy – as in other European countries – pluralism is grounded in the free 

speech provision of the Constitution (article 21), and repeated – as an idèe reçue 

– in all media legislation. As a bon–à–tout-faire expression it has been 

abundantly been used by the Italian Constitutional Court to justify in 1960 

State monopoly over broadcasting; to open the market to private broadcasting 

(1974/76); to establish the limits to number of obtainable broadcasting 

licences; to impose restrictions on political propaganda. 

3. How can the particular concern regarding the plurality of the media be justified: 

information independence, debating ideas, confrontation of opinions, cultural 

role...”cultural diversity” (at national level, at European level and at international 

level)? 

In the pluralism concert not one argument of those listed has been ignored, 

with continuous references to EU law, Council of Europe documents, 

International treaties. This position is practically unanimous among 

academics, judges, commentators and – obviously – the media. In this array of 

instruments only two appear to be lacking: a comparative analysis on the 

profound differences between solid and advanced democratic systems and 

transitional democracies (can one say, without violating politically correct 

etiquette, that there are some obvious differences between Italy and Romania 

or Georgia?). And basic knowledge of mass communication sociology, which 

points out that in the US and Western Europe the media are much less 

important than lawyers, law-makers and the media believe (or like to believe). 

[There is no n° 4] 

II. Presentation of the Regulations 

This first part is meant to present the legal system of the country. The list of questions is 

indicative only. 

II. A. Media Regulations 

II. A.1. “Anti-Concentration” Measures 

5. Are there any anti-concentration measures in your country? Since when? In what 

circumstances were they adopted? How were they justified? Does the reference to a 

people’s right to information, as opposed to the mere assertion of the principle of the 

freedom of expression, constitute an alternative justification for anti-concentration 

measures? 

Anticoncentration measures in the field of the media began to be introduced 

with Law 416/1981 the publishing industry. The circumstances in which the 

law was enacted are related to the discovery that the main Italian newspaper, 

Corriere della Sera, was controlled by a covert Masonic lodge. The scandal that


Plurality of Political Opinions and the Concentration of Media 

arose justified the anti-concentration provision (no group can control more 

than 20% of newspaper circulation; a media group must be controlled by 

natural persons or by public companies, i.e. listed in the stock-market, with 

very few intermediate levels of control). The provisions were grounded on the 

public right to information and on the constitutional provision that allows 

restrictions in order to ensure transparency of financial support to the media. 

6. Scope. What are the media so aimed? Do the texts have a large scope or are they limited 

to some media and in particular to those known as traditional media? Do those 

measures apply to the private sector and to the public sector in one and the same way? 

The 20% anti-concentration limit has been endorsed by the Constitutional 

Court and extended – on the basis of an „equal treatment‟ principle – to 

broadcasting. The provision in the 1990 broadcasting law which had set the 

limit to 25% of the available licences was struck down as against the 

Constitution. At the moment only printed press and broadcasting have anticoncentration 

limits. There are also ownership limits which exclude financial 

institutions from controlling broadcasting licences. And until 2005 there have 

been strong cross-ownership limitations. 

7. What are the conditions to the application of those measures? For instance, 

shareholding, equity interests in several companies, turnover... 

The anti-concentration quotas are based on circulation for the press; and on 

the number of licences for TV broadcasting; now that broadcasting has been 

liberalised they apply to the number of authorisations for content provider. 

No rational explanation has been given on why 20% (and not 15% or 35%) 

should be the magic number. No consideration has ever been given by the 

Constitutional Court – which has been the pluralism prophet and watch-dog 

– and main-stream legal doctrine to efficient economic models, size of firms, 

economics of scale, market and consumer choices. At the end of the day the 

result has been that of 20 years unsuccessfully spent in trying to force the 

broadcasting company Mediaset, owned by Mr. Berlusconi, to give up its third 

television licence; and in freezing any rational organization of the press 

industry. In the last 30 yeas no new Italian media groups have been founded, 

no mergers have been made, newspaper circulation is less than 80 years ago 

(when population was half the present day 60 million and illiteracy was high), 

and on-line services have cannibalized TV viewers, especially among the 

younger generations. 

8. How do the rules apply to the communication conglomerates? 

“Communication conglomerate” is blasphemy for the pluralistic religion. Until 

2005 cross-ownership between press and TV was forbidden; now it has been 

slightly released but in such a way that Telecom Italia (electronic 

communications) cannot control Mediaset (broadcasting); and Mediaset



cannot control one of the two main newspapers (Corriere della Sera or La 

Repubblica). 

9. Implementation. Which judge or authority can implement those specific regulations: the 

constitutional judge, the common law judge, or the sector-specific authority? Do the 

regulatory authorities of audiovisual communication play a part in it? 

Legislation on media concentration has been fashioned by the Constitutional 

Court. The National Communications Authority (Autorità per le Garanzie 

nelle Comunicazioni – AGCOM) was at its beginning, entrusted with control 

over respect of anti-concentration measures for the press, afterwards extended 

to broadcasting. AGCOM can impose pro-competitive measures and even 

divestiture of assets. At the beginning of digitalization of TV broadcasting 

some would-be pro-competition measures were adopted. The rapid 

technological development has turned them into relics of the past. 

10. What are the sanctions for non-compliance with those regulations? 

There is a whole array of sanctions, but none has really been applied. They are 

generally used in order to prevent mergers and expansions of the firm through 

denial of relevant administrative authorizations. 

II. A.2. Other Ways to Guarantee the Plurality of the Media 

11. Anti-concentration measures let aside; do any obligations of contents (variety of 

programs, broadcasting quotas, broadcast access right, reply right...) weigh on the 

operators? 

The main pro-pluralism provisions (a part from those common to all 

European countries via the TV Directives 89/552 and 07/65) are contained 

a) in the broadcasting code (Decree 177/2005) which sets two limits and one 

obligation: 

i. the limit of 20% of content providers authorizations 

ii. the limit of 20% of revenues of the Integrated Communications System 

(SIC) which includes advertisement, subscriptions, public funding, 

sponsorship and the like. 

iii. a must offer/must carry obligation for digital broadcasters which have 

more than two multiplexes. They must offer to independent third parties 

40% of their broadcasting capacity on the third and following multiplexes. 

Allocation of this capacity is regulated by AGCOM. 

b) in the rich legislation on political propaganda and equal time on 

broadcasting, which originally was intended only for election periods, and now 

is extended to all year round. The result of these 10 years is a repeated series 

of pecuniary sanctions against some Mediaset TV programs which give voice 

only to its owner‟s views (Mr. Berlusconi), and some RAI (the public 

broadcasting company) programs whose main aim is to depict him as a crook 

and an enemy of democracy. The influence on the electorate appears to be 

impalpable: since 1994 there has been a regular alternation in electoral results:



centre-right (1994) centre-left(1996), centre-right(2001), centre-left(2006), and 

now again centre-right(2008). On the whole the demerits of the government 

in power (whatever that may be) appear to influence voters much more than 

any broadcasting policy. 

12. Is there a system of allocation of public funds? To what extent is the allocation of public 

funds subject to the respect of plurality requirements? Does the allocation of public funds 

contribute to the respect to the plurality or does it participate in guaranteeing the respect 

of plurality? 

Since the times of fascism the Italian press industry has been subsidized by 

public funds, or directly or indirectly (subsidies on printing paper, postal and 

telecommunication rates, tax rebates). This policy of subsidies has been 

extended to local radio and TV stations. The justification which is given is 

pluralism; the more cynical explanation is that each MP has a radio or TV 

station in his/her constituency and wants to be backed during election times. 

At any rate Italy, with 600 TV station and 1700 radio stations, has more than 

practically Germany, France, Great Britain and Benelux together and is in no 

want of pluralism. 

II. B. Competition Law 

13. Is there a Competition Law in your country? If the answer is yes, since when? What are 

its constitutive parts (anti-competitive behaviour, merger control)? 

Antitrust legislation has been introduced in Italy with Law 287/1990. It is, 

substantially, consistent with articles 81 and 82 of the Rome Treaty, and with 

the rest of EC legislation and ECJ jurisprudence. 

14. Who is in charge of implementing the competition rules: regarding anti-competitive 

behaviour? And regarding merger control? 

The national competition Authority is the Autorità Garante per la 

Concorrenza ed il Mercato (AGCM) and has general competence on all 

antitrust issues. 

15. Can those competition rules be applied to the various media (press, radio, television, 

Internet...)? Would the answer be the same regarding all the constitutive parts of your 

Competition Law? In particular, merger control? 

In the field of media enterprises AGCM shares its competence with AGCOM: 

the former should concentrate on competition issues, the latter on pluralism 

issues. There is a protocol between the two Authorities that regulates the 

common handling of cases. Clearly, as competition rules pull in one direction 

and pluralistic rules in another it is often difficult to anticipate where the law 

exactly stands. 

16. Has there been an evolution during the past 10 years regarding this question?



In the last 10 years the situation has become more complex owing to the 

widening scope of regulatory powers of AGCOM (which was established in 

1998); and the political use of the pluralism argument as a tool against 

Mediaset (viz. Mr. Berlusconi). 

17. What type of merger control is implemented in your country: compulsory prior control, 

mixed control? 

In general, merger control rules are in accordance with EC practice (mostly 

the various Regulations and Guidelines; DG Comp precedents; ECJ 

jurisprudence). In the field of media industries anti-concentration legislation 

has frozen any significant merger. The only relevant one has been that 

between the Italian subsidiaries of Newscorp (Murdoch) and Vivendi, which 

was authorized by EC authorities after pro-competition engagements on the 

basis of the “failing firm defence”. As a result SKY is the only important 

satellite pay-tv broadcaster (92% of the market share). 

18. What is a “concentration” to you: do you favour a broad conception (determining 

influence) or a narrow conception (for instance, based on the notion of control)? 

19. With regard to what rules are joint ventures and other alliances assessed? 

20. What is the assessment test? 

21. Can the use of commitments are remedies be relevant? If the answer is yes, can the 

commitments be behavioural commitments? 

22. Is the merger control actually implemented? In particular, what is the sanction for the 

failure to notify a contemplated merge in case of prior control? 

As mentioned previously the only significant merger has been in the 

Newscorp case. As a lawyer I am rather critical towards dogmatic economic 

theories and their magic acronyms (one for all: SSNIP). Economists tend to 

forget that theirs is a descriptive social science, not a prescriptive one (such as 

the law). 

II. C. Organisation of the Relationship between Media Specific Rules 

and Competition Rules. 

II. C.1. Relationships between Anti-Concentration Measures and 

Merger Control. 

23. Are the various sets of rules (media-specific rules, Competition Law rules) implemented 

alternately or concurrently? 

In general, in the cases which have arisen, there is a concurrent 

implementation of rules. 

24. If the only applicable regulation is the sector-specific regulation, is the Competition 

Authority entitled to intervene on a consultative basis? 

In those cases in which AGCOM is explicitly empowered AGCM provides a 

written advice in the proceedings. And vice versa.



25. In the case of a concurrent implementation, which “authority” is the first to intervene? 

It depends: when there is an ex officio intervention, the first Authority to move 

generally controls the proceedings. When there is the need for an 

authorization or for clearance it depends on which Authority is seized by the 

firm. 

26. In the case of a concurrent implementation, are there any rules that allow the various 

competent authorities to “communicate” with each other (For instance, request for 

advice)? How is organised the connection between sector-specific regulation and 

competition regulation? 

As mentioned, there is a protocol between AGCOM and AGCM that 

indicates the procedures to follow in the areas of common competence. 

27. In the Member States of the European Union, has the examination of a merger in the 

media sector at a European level and not at a national level created any particular 

problems? 

The only case, repeatedly mentioned, is the Newscorp case, which was 

decided at a EC level. Six years after the green light, SKY still lives quite 

comfortably in quasi-monopoly for satellite pay-tv services. Effective 

competition is coming only from DTT pay-tv services. 

28. If you country is a Member State of European Union, do you know if the provision of 

the regulation that allows the protection of justifiable interests (art. 21, § 4, regulation 

n° 139/2004) has ever been used? 

To my knowledge Regulation 2004/139 is only incidentally mentioned in a 

AGCOM decision of 2009 concerning access to mobile communication 

networks. 

II. C.2. Other Rules that Guarantee the Plurality of the Media and 

Competition Rules 

29. How to assess the obligations (production and broadcasting quotas, “media 

chronology”...) that curtail competition ...in the name of competition protection? Could 

competition rules be applicable? 

AGCOM has, since 2004, conducted market surreys in order to verify the 

existence of significant market power in order to apply ex ante regulation on 

the basis of Framework Directive 2002/21. It has established that RAI and 

Mediaset hold a joint dominant position in the media services market and it 

has imposed limits on activity in the growing DTT market. It has also 

regularly verified if any firm has reached the 20% threshold in the Integrated 

Communications Market (SIC). The answer is negative.



30. To what extent does the allocation of public funds aim to guarantee the plurality of the 

media and does not contradict competition requirement (national, European, 

international...)? Is a control mechanism applicable? 

Public funds are mainly given to RAI through the broadcasting tax on the 

possession of TV sets. RAI has been able to avoid sanctions with the past EC 

Commission guidelines on State aid to public broadcasters. One will have to 

see if it manages to do the same with the more stringent 2009 Guidelines. 

III. Implementation of the Regulation 

This second part is meant to present a more realistic vision of the 

operations in the media sector through recent examples. 

National Reporters are asked to present the decisions of the European 

Commission that are related to their national operators as well. 

31. Can your present any recent case in the media sector that had been examined by the 

competition authority of your Member State, preferably in various areas (press, television 

...)? 

In some cases AGCM has found that Mediaset is in a dominant position and 

has imposed limitations on the acquisition of broadcasting rights (e.g. rights on 

sports events granted only after Mediaset had taken commitments). In other 

cases – mostly related to frequency trading – AGCM has not found a 

dominant position and therefore has authorized Mediaset to buy new 

frequencies from small broadcasters in order to complete its digital network. 

32. Where there any specific problems regarding the demarcation of markets? And regarding 

the analysis of the organisation of markets? 

Markets in broadcasting services are not very well defined. Only recently have 

economist started studying so-called two-sided markets. On a EC level there 

is still a tendency to separate free-to-air services from pay-tv services. To look 

at the market as it is – and not through abstract lenses – audiovisual services 

are “competing for eye-balls”. The very strong competition between RAI, 

Mediaset and SKY in Italy is the best example of how the markets work: 

upstream in buying premium content, in the firm in “packaging” content in 

order to appeal audiences, downstream in retaining their “clients”. Until 

economists do not look at what is shown on their TV sets; do not examine 

the segmentation of audiences and data on the general consumption of 

audiovisual products (including movie theatres, DVDs, on-line services, and 

peer-to-peer downloading) it is improbable they will come up with efficient 

and realistic models. 

33. Did the low number of operators on the markets cause specific problems? How were they 

resolved? 

The natural oligopolistic nature of broadcasting services (high costs for 

infrastructures, and for content; hundreds (if not thousands) of employees is



mostly disregarded. This is clearly a problem for pluralism worshipers, who 

believe that the optimal solution is market fragmentation. In Italy pluralistic 

dogmatism has had to face the naked truth of the market and has been, in 

practice, watered down, but at a very high price: that of preventing an efficient 

evolution of media markets. 

34. Did the use of commitments as remedies result in particular implementations considering 

the characteristics of the sector involved? For instance, was the use of behavioural 

commitments or packages of commitments easier in the particular sector than in other 

sectors? 

Commitments have been used in the Newscorp and Mediaset cases in order 

to allow access to essential infrastructures and to premium content; and in the 

Mediaset sports events case. 

35. How did Competition Law (merger control) and the sector-specific regulation (anticoncentration 

measures) get a long in those cases? 

36. How were the specific rules implemented? 

Commitments have been used mostly in competition cases. The possibility of 

commitments in cases in front of AGCOM has been introduced in 2007, but 

for the moment there have been no significant applications. 

37. Regarding concepts and notions, what do Competition Law and sector-specific 

regulations have in common and what makes them diverge? 

There is a certain competition between AGCM and AGCOM. The former 

appears to have a more technical approach to the questions, the latter a more 

political approach. It is not uncommon that AGCOM commissioners take 

publicly position in favour of this or that solution. Clearly what causes 

divergence is that pluralism is a vague and indefinable concept and that the 

regulations that purport to ensure it have little rational basis and even less 

empirical support. 

IV. Prospects and Improvements 

38. Are the anti-concentration measures considered as efficient? Do those measures 

sufficiently take into account international competition? Are they adapted to the latest 

technological evolutions? 

Present anti-concentration legislation will inevitably bring to the collapse of 

Italian press industry, which is prevented from having multinational 

ownership and is unable to capture the shift of advertising from traditional 

media to on-line services. If RAI keeps being funded by the State, there will 

be a struggle for life between SKY and Mediaset. According to IFM in 2008 

Newscorp ranked fourth media company in the world, with a turnover of € 22 

bln; Mediaset 28 th with a € 4 bln turnover. They both have more or less the 

same turnover in Italy, the former mostly from subscribers, the latter mostly



from advertising, but both are trying to enter their competitor‟s core market. 

On a European basis Mediaset is one fourth of Bertelsmann; one third of 

Vivendi; half the size of Lagardère. 

39. Shouldn’t Member States of the European Union consider a European anticoncentration 

regulation? 

Media companies sell entertainment. Personally I do not understand why they 

should be subject to regulations any different from the automobile industry or 

food and household industries. 

40. Are requirements of internal plurality (variety of information sources, variety of the 

programming variety in the production...speaking times of the various currents of 

thoughts...) not more important and more suitable, in the media sector, than anticoncentration 

measures, even if specific to that sector? 

41. What did you learn from those precedents? Is it possible to do without a specificlegislation 

and be satisfied with the one and only Competition Law? Is it necessary to 

maintain both sets of rules by harmonising the concepts? 

“Internal plurality” in a globalized, multicultural, multilinguistic world, and 

applied to services which for their nature are carried by global networks, is like 

Asterix‟s village within the Roman Empire. 

However it would be more amusing if obsessive control over who, when, 

what, why, how media can disseminate were only a comic strip by Goscinny 

and Uderzo, and not a growing mountain of EU legislation.

ARE HUMAN RIGHTS UNIVERSAL AND BINDING? 

From the Rights of Citizen to Fundamental Rights of Man: 

The Italian Experience 

ALESSANDRO PACE * 

I. ASPECTS OF THE ITALIAN CONSTITUTION 

The Italian Constitution makes just one allusion to the rights of man, in 

Article 2, when it proclaims: «The Republic recognises and guarantees the 

inviolable rights of man, both as an individual and in the social groups where 

his personality is expressed. The Republic expects that the intransgressible 

duties of political, economic and social solidarity be fulfilled». Rights that are 

legally proclaimed to be inviolable, but not «sacred» and least of all «natural». 

As a matter of fact, in their proclamation of the inviolable rights of the 

person, the founding fathers did not have in mind meta-positive rights 1 . 

In a similar vein, the Italian Constitution does not affirm that all men 

are equal, which would be admissible based on a natural law approach only, 

explicitly rejected by the founding fathers (see infra par. 2). Instead, Article 3.1 

stipulates that: «All citizens have equal social dignity and are equal before the 

law, without distinction of sex, race, language, religion, political opinion, 

personal and social conditions,» thus suggesting that the legislator could admit 

the possession of citizenship as a discriminating element in the norms 

regulating certain rights. 

Consistent with this approach, in a special provision (Article 10.2) the 

Constitution specifies the competent legal basis for regulating the rights of 

foreigners, stipulating for this purpose that: «The legal status of foreigners is 

regulated by law in accordance with international provisions and treaties». On 

this aspect, however, the first paragraph of the same Article 10 is also 

significant: «The Italian legal system conforms to the generally recognised 

principles of international law». What this provision actually implies is the 

immediate general applicability in the Italian legal system of the costumary 

rules of international law that envisage universal entitlement to a minimum of 

guarantees. 

The Italian Constitution, which came into effect on January 1st 1948, is 

a lengthy and complex document. This has important consequences for its 

interpretation. Every single word, precisely because it is embedded in detailed 

* Alessandro Pace is Professor of Constitutional Law at the University of Rome “La Sapienza”. 

1 See the meeting of the first Subcommittee on 9 September 1946 and, in particular, the contributions of MPs 

Dossetti and Togliatti. On this aspect, see also A. Baldassarre’s extensive article on Diritti inviolabili, in 

Enciclopedia giuridica, Vol. XI, Istituto dell’Enciclopedia italiana, Rome, 1989, p. 10 et seq.



provisions that not infrequently consist of more than one paragraph, have – 

from a hermeneutic perspective – a more binding meaning that that of the 

constitutional provisions containing mere enunciations «of principle», such as 

«Congress shall make no law (…) abridging the freedom of speech, or of the 

press» 2 or «The freedom of art is guaranteed», 3 and so forth. Vis à vis 

statements «of principle», the legislature and judicial authorities undoubtedly 

enjoy a greater degree of discretion. 

It follows that, unlike other judicial systems, interpreters of the Italian 

Constitution cannot escape the often neglected fact that Part I of the 

Constitution recites the «Rights and Duties of Citizens», more or less like the 

Weimar Constitution of 11 August 1919 did 4 , and unlike the Déclaration of 26 

August 1789 entitled: «Declaration of the Rights of Man and of the Citizen». 

Having said this, while the rights proclaimed in Title IV of Part I 

(«Political Rights Relations»), are attributed always and only to citizens, those 

proclaimed in Title 1 («Civil Relations»), Title II («Ethical and Social 

Relations») and Title III («Economic Relations»), again in Part I, are 

«universally» recognised (such as, for example, the freedom of religion, 

expression of thought and the right to bring cases before a court of law: 

Articles 19, 21 and 24) or recognised impersonally (for example, in Article 

13.1: «Personal liberty is inviolable»; Article 23: «No obligation of a personal 

or financial nature may be imposed on any person except by law», or Article 

25: «No case may be removed from the court seized with it as established by 

law»). 

Title I («Civil Relations») grants exclusively to citizens: the right to 

reside and travel freely in any part of the country (Article 16), to assemble 

(Article 17), to form associations (Article 18), and the right not to be 

extradited (Article 26). In the «Fundamental Principles» the right to work is 

granted to citizens only (the Constituent Assembly debated at length as to 

whether this right might even be configured as the right to obtain a job via 

state intervention), while in the sphere of «Economic Relations», only citizens 

are recognised the right to maintenance or to welfare support for disabled 

persons or those without the necessary means of subsistence (Article 38). 

Having examined the relevant constitutional provisions, we shall now 

briefly assess some of the first interpretative solutions adopted. In fact, it was 

based on these scholarly contributions that the ensuing debated developed 

and the rulings of the Constitutional Court began to take shape. 

2 First amendment, US Constitution (1791). 

3 Article 21, Swiss Constitution (2002). 

4 “Grundreche und Grundpflichten der Deutschen.”

Alessandro Pace 

Are Human Rights Universal and Binding? 

II. LEGAL THEORIES PRIOR TO CONSTITUTIONAL DECISIONS 

In the collective volume La Costituzione italiana. Commento analitico (1949), 

the excellent work of three young magistrates, 5 Judge Luigi Bianchi 

d’Espinosa pointed out that while Articles 2 and 3 of the Constitution 

appeared to identify, in principle, the sedes materiae for citizens, Article 10.2 

appeared to be, again in principle, the sedes materiae for foreigners. Since then, 

he has emphasised how the failure of an Italian statute to observe the 

international norms and treaties governing the subject would determine its 

invalidity. Judge Bianchi d’Espinosa also stressed how the reference in Article 

10.1 to «generally recognised principles of international law» implies, in any 

event, an obligation on the part of States to «recognise foreigners as subjects 

of law, and to grant them at least those rights that are the immediate 

consequence of their personality. Accordingly a State could not, without 

violating the right of peoples, consider foreigners as slaves; nor could it deny 

them the right to personal integrity, or the freedom of conscience or of 

religion, etc. International law therefore establishes a minimum of rights that 

national legislation is obliged to grant to foreigners…». At the same time, he 

pointed out how the explicit recognition of some rights exclusively to citizens 

precluded their extension to foreigners 6 . 

For his part, one of the other authors of the same work, Judge Gastone 

Baschieri, did not dispute the accuracy of the delimitation of Part I to the: 

«Rights of Duties of Citizens». While pointing out that several of the 

provisions of Part I would also apply to foreigners «insofar as they were iure 

soli temporary subjects of Italian law», Baschieri underlined the political 

importance and judicial correctness of that title, inasmuch as it made explicit 

the existence of a «National Covenant» between citizens, 7 implied by the 

Italian Constitution. 

The essay Eguaglianza e giustizia nell’art. 3 della Costituzione by Professor 

Carlo Esposito, one of the most prominent Italian constitutional lawyers of 

the twentieth century, dates from 1953 8 . In this essay we immediately find a 

notable observation for the purposes of our discourse. The principle of 

equality refers, in Article 3, to citizens only, insofar as – Esposito stressed – 

Article 2 of the Italian Constitution does not «intend to recognise “natural 

rights”». Only if the rights referred to in Article 2 had a basis in natural law 

could equality be proclaimed as referring to all persons (as indeed occurs in 

5 G. Baschieri, L. Bianchi d’Espinosa, C. Giannattasio, La Costituzione italiana. Commento analitico, Noccioli, 

Florence, 1949. 

6 L. Bianchi d’Espinosa, in G. Baschieri, L. Bianchi d’Espinosa, C. Giannattasio, La Costituzione italiana. 

Commento analitico, cit., p. 41 et seq. 

7 G. Baschieri, in G. Baschieri, L. Bianchi D’Espinosa, C. Giannattasio, La Costituzione italiana. Commento 

analitico, cit., pp. 48 et seq. and 53. 

8 C. Esposito, Eguaglianza e giustizia nell’art. 3 della Costituzione, in La Costituzione italiana. Saggi, Cedam, Padua, 

1954, 17 et seq., published independently as an excerpt in 1953. P. Barile, Il soggetto privato nella Costituzione 

italiana, Cedam, Padua, 1953, quotes the excerpt of 1953.



several eighteenth-century constitutions, and not only) 9 . What is crucial, in 

this sense, is that the legal status of the foreigner is specifically dealt with, in 

the ways we have seen, in Article 10.2. This «precludes that the general 

proclamation on the equality of citizens and the accompanying proclamations 

on social justice for citizens also refer to foreigners» 10 . On the other hand, «if 

foreigners were generally speaking by law and according to the judicial system 

equal to citizens, the legal category of citizens would cease to exist» 11 . 

Yet none of this led Esposito to rule out that the rights constitutionally 

granted to «all» (or «impersonally»), or even «to citizens», could not also be 

extended to foreigners. In the first instance, the presumption is that the 

Constitution «desired to grant this right also to foreigners»; in the second case, 

the constitutional proclamation (where the reference, albeit implicit, is clearly 

to Articles 17, 18 and 38, that is the right to assembly, association and social 

welfare) appears, with regard to foreigners, to have «only supplementary and, 

in any event, deconstitutionalised power to fill the lacunae of ordinary laws» 12 . 

The same, however, does not appear to hold true for political rights, which as 

such can be exercised by citizens only 13 . 

In the same year, shortly after Esposito’s essay appeared, Professor 

Paolo Barile, another distinguished Italian cosnstitutional lawyer, at that time a 

very young man, published a monograph concerning the private individual in 

the Italian constitution: a landmark in Italian constitutional literature because 

it was the first book to analyse the constitutional norms from the viewpoint of 

individual legal situations. 

In his wide-ranging examination of the question, Barile takes as his 

starting point two of Esposito’s affirmations recalled above. First, that the 

legal category of citizens would cease to exist if foreigners were, according to 

the legal order, equal to citizens. Second, the espansive potential of 

constitutional proclamations concerning individual rights 14 . Nonetheless, after 

a careful reading of the laws and regulatory provisions in force at the time, 

Barile criticised Esposito’s text for being overly categorical 15 . After which, 

having highlighted how Title IV («Political Relations») contemplates personal 

situations that can also involve foreigners – such as the obligation to 

contribute to public expenditure (Article 53) and the obligation of loyalty to 

the Republic (Article 54), to the extent that they must respect the State’s penal 

laws and those on public security –, Barile suggested that foreigners can also 

9 C. Esposito, Eguaglianza e giustizia, cit., p. 23 et seq., on p. 20 gives a list of constitutional enunciations based 

on natural law. Esposito viewed the justification for the reference to “men” in Article 49 GG in a similar 

vein, i.e. that the natural law basis of some of the rights recognised in the Grundgesetz appeared as given. 

10 C. Esposito, Eguaglianza e giustizia, cit., p. 24 note 19. 

11 C. Esposito, op. loc. ult. citt. 

12 C. Esposito, Eguaglianza e giustizia, cit., p. 24 note 19; see also p. 33 note 36. 

13 C. Esposito, Eguaglianza e giustizia, cit., p. 24 note 19; Id., I partiti nella Costituzione italiana, in Id., La 

Costituzione italiana. Saggi, cit., p. 221 et seq. 

14 P. Barile, Il soggetto privato, cit., p. 51 seq. 

15 P. Barile, Il soggetto privato, cit., p. 53.



be entitled to a number of political rights: such as the right of petition (Article 

50) and the right to freely associate in political parties (Article 49), even if, in 

this last respect, he acknowledges that a political party cannot be dominated 

by foreigners. Finally, with regard to Article 10.2 of the Constitution, referred 

to above, Barile reaches the conclusion opposite to that of the previous 

students – namely, that this provision invalidates the «reciprocity clause» 

(Article 16 of the «Preliminary Provisions» of the Civil Code). 

In the fifteen years that followed, the terms of the question substantially 

did not change among scholars. Proof of this can be found in the words of 

Professor Costantino Mortati, an outstandig constitutional lawyer and a 

founding father of our Constitution, in the seventh edition (1967) of his 

Istituzioni di diritto pubblico – one of the most frequently recommended and 

studied books on constitutional law in Italian Universities – published on the 

eve of the first judgement of the Constitutional Court on the rights of 

foreigners. 

According to Mortati, the Constitution contemplates three scenarios in 

respect of foreigners. First, «of total exclusion of those rights inherent to the 

capacity of citizens: typically, all political rights». Second, «of necessary 

recognition, in conditions of parity with citizens, of the other [rights] that 

concern the safeguarding of the essential needs of the human condition (and 

accordingly of those referred to in Articles 13, 14, 15, 19, 21.1, 32 and 33)». 

Third, «of discretionary power to grant residual rights [that is of those not 

constitutionally recognised], within any limits that may prove necessary for the 

protection of security and of public decency. The rights that can be conferred 

in exercising this discretionary power must be subordinate to the condition of 

“reciprocity” and in accordance with the provisions laid down in Article 16 of 

the Preliminary Provisions» 16 . 

Regarding, instead, the generally recognised principles of international 

law referred to in Article 10.1, Mortati subscribed to the (then) dominant 

opinion of the inexistence of «international customs requiring the assimilation 

of foreigners’ rights with those of citizens, while there subsists a general belief 

(confirmed in the United Nations Charter), in the necessity of guaranteeing 

foreigners only the enjoyment of the rights of the person, in other words the 

granting of a minimum of actionable claims, regarding not only their legal 

status and capacity but also the implementation of the capacity itself within a 

sphere below which the very dignity of person would be compromised» 17 . 

The difference between Esposito’s approach and that of Barile and 

Mortati is clear. Setting aside the minimum rights to which persons are entitled 

by virtue of customary international law, while for Barile and Mortati the 

extension to foreigners of constitutional rights recognised either explicitly or 

impersonally or to all implies an entitlement ope constitutionis to foreigners too, 

16 C. Mortati, Istituzioni di diritto pubblico, VII ed., Cedam, Padua, 1967, Volume II, p. 913 et seq. 

17 C. Mortati, Istituzioni di diritto pubblico, cit., p. 913.



this was not the case for Esposito. Given that there is a mere presumption, 

this could be overcome by a specific contrary provision of an ordinary law, 

with the result that such a law cannot be constitutionally challenged. 

In the interests of completeness, and not without a certain reluctance, I 

have to mention that a few months prior to the publication of the seventh 

edition of Mortati’s Istituzioni, a monograph of mine was published that dealt 

with the freedom of assembly, a right that the Constitution grants explicitly to 

citizens only (which, in the very first times, led some authors to suggest that 

the only constitutional guaranteed assemblies were the political ones). The 

conclusions reached on this point in that monograph were very different to 

those recalled so far. 

Given that the Constitution of the State is a political fact and not only a 

normative document, it appears to be and foremost of relevance to citizens 

only (readers will recall what Judge Baschieri had to say about the 

Constitutional Covenant). This in turn seemed to justify the formal 

recognition of all the rights of Part I to citizens only (hence the title «Rights and 

Duties of Citizens»). A point which, as has been emphasised on several 

occasions, found confirmation both in the fact that the principle of equality 

refers, in Article 3.1, to citizens only, and in the fact that the sedes materiae of 

the legal status of the foreigner is contained in Article 10.2. 

It follows that the granting of most civil liberties to «all» does not 

constitute a juris tantum presumption of general entitlement, as Professor 

Esposito believed, but is instead referred exclusively to all citizens 18 . Precisely 

for this reason the fact that the freedoms of assembly and association are, not 

unlike all the other rights, formally guaranteed to citizens only, would not 

explain any influence on the nature of both these rights. As with all the other 

rights, these could therefore be extended by ordinary legislation to foreigners. 

And this is what actually happened in the past, given that even the Fascist 

police laws never made a formal distinction between foreigners and citizens in 

the exercise of the freedom of assembly or association. 19 Indeed, if an 

ordinary law makes no distinction between foreigners and citizens, it is clear 

that this also applies to the last ones all the more so in a liberal democratic 

system. 

Not unlike Esposito’s approach, the constitutional foundation of the 

rights of stateless persons and of foreigners, according to this theory, 

therefore appear to reside in the generally recognised principles of 

international law cited in Article 10.1 and in the international provisions and 

treaties, to which, in its laws, the Italian State is duty bound to conform by 

18 A. Pace, La libertà di riunione nella Costituzione italiana, Giuffrè, Milan, 1967, p. 38 et seq. The thesis was later 

reprised and developed in Id, Problematica delle libertà costituzionali. Parte generale, Ist edition, Cedam, Padua, 

1984, p. 133 et seq.; III ed., 2003, p. 315 seq. and in Id. and M. Manetti, Art. 21. La libertà di manifestazione del 

proprio pensiero in G. Branca and A. Pizzorusso (eds.), Commentario della Costituzione, Zanichelli – Foro italiano, 

Bologna – Rome, 2006, p. 296 et seq. 

19 See Articles 18 et seq, 209 et seq., in the Consolidated Law on Public Order no. 773 of 18 June 1931.



virtue of Article 10.2. Moreover, given the existence of numerous bilateral 

treaties stipulated by Italy which contain the most preferred nation clause, 20 it 

is very difficult to find a State in respect of whose citizens the Italian Republic 

has not pledged to guarantee the same treatment as Italian citizens, on 

condition of reciprocity 21 . 

Which, of course, – as we have seen earlier – does not prevent the 

Italian State, if it so desires, from extending by ordinary law the rights of 

citizens to foreigners (including political rights), even when this is not 

imposed by international norms or agreements 22 . It is, however, entirely clear 

that in the case of the extension of political rights, the preferred route is best 

identified in a law that facilitates the acquisition of citizenship, giving greater 

weight on the one hand to the jus soli, 23 and on the other, to the criterion of 

the stay for a certain period of time on national territory (along with, of 

course, other requirements such as knowledge of the Italian language, the 

absence of social dangerousness and of previous serious criminal offences 

etc.). 

Indeed, the fact that an ordinary law is sufficient for granting Italian 

citizenship confirms, by contrast, that also for political rights it would not be 

strictly necessary to resort to constitutional laws to extend entitlement to 

foreigners. What matters most, according to this thesis, is that the granting to 

foreigners of the same rights as Italian citizens must be a direct or indirect 

consequence of a decision by the ordinary legislation. From this also stems the 

maintenance in force, where possible, of the «clause of reciprocity» as an 

instrument for safeguarding the conditions of Italian citizens abroad. 

The fact that an ordinary law is sufficient for the legislation on 

citizenship rather confirms that it is not the formal exclusive constitutional 

granting of political rights to citizens that prevents their extension to 

foreigners, but the awareness, on the part of citizens of «being the State». 

Citizenship is in fact «something more than a legal condition, given that it is 

founded on previously defined traditions and predetermined cultural 

inclinations», 24 so that, when the feeling of belonging to an historical-cultural 

20 See the list reproduced in E. Calò, Il principio di reciprocità, Giuffrè, Milan, 1994, p. 290 et seq. 

21 In favour of this conclusion see also L. Paladin, Diritto costituzionale, III edition, Cedam, Padua, 1998, p. 564. 

22 In favour of this conclusion see also M. Luciani, Cittadini e stranieri come titolari dei diritti fondamentali. 

L’esperienza italiana, in «Rivista critica del diritto privato», 1992,.p. 224 ss.; Id., La Costituzione italiana e gli ostacoli 

all’integrazione europea, in Pol. dir., 1992, p. 585; E. Grosso, La titolarità del diritto di voto, Giappichelli, Torino, 

2001, p. 106 ss. 

23 V. Onida, Lo Statuto costituzionale del non cittadino, Report to the Conference of the Italian Association of 

Constitutionalists, “Lo Statuto costituzionale del non cittadino”, in AIC - Annuario 2009, Jovene, Naples, 2010, p. 

21, recalls “…only for those who boast ancestors of Italian blood [Article 4.1 and Article 9.1.a ), Law 

91/1992] or for those who marry an Italian citizen (Article 1.11, Law 94/2009) is the process facilitated, while 

for other foreigners the acquisition of citizenship is nowadays conditional upon ten years of legal residence 

(Article 9.2.f), (Law 91/1992) and on their having completed a lengthy bureaucratic process which de facto 

brings the time required to at least twelve years (Article 3 of Presidential Decree 362/1994).” 

24 For example M. Sandel, Democracy’s Discontent. America in Search of a Public Philosophy, Cambridge, 1996, p. 

117, cited by C. De Fiores, Nazione e Costituzione, Volume I, Giappichelli, Turin, 2005, pp. 371 et seq, 388 et seq.,



identity disappears, the result is the break-up of the political community itself 

25 and it would therefore be of little consequence if the extension of political 

rights occurred through ordinary legislation. 

III. RULINGS OF THE CONSTITUTIONAL COURT IN THE PERIOD FROM 

1967-1988 

Judgment no. 120/1967 was the first to examine the problem of the 

legal status of the foreigner. The case concerned a foreigner under arrest, 

accused of contraband, who could not be freed without bail. While affirming 

that the principle of equality applies also to foreigners when the inviolable 

rights of persons recognised by Article 2 of the Constitution are at stake, 26 the 

Court nonetheless cautioned that «the acknowledged equality of individual 

situations in the field of entitlement to the rights of freedom in no way 

precludes that, in concrete situations, there cannot exist between the same 

persons de facto differences that the legislator can assess and rule on according 

to his discretion, which finds no other limit than in the rationality of his 

evaluation» 27 . 

In the following year, in judgment no. 11/1968, the Constitutional 

Court rejected, but only in part, a challenge to the constitutional legitimacy of 

a law conditioning the exercise of the profession of journalist (and therefore 

his entitlement) to be entered in a special register, requiring for this purpose 

the possession of Italian citizenship or a treatment of reciprocity. Since this 

condition of reciprocity was not envisaged at the time under the national 

legislation of the petitioner, the Court rejected the challenge, deeming it 

«reasonable that the foreigner be admitted to a working activity when Italian 

citizens are guaranteed the same possibility in the State to which the former 

belongs». The Court added, however, that the same solution cannot be 

applied in the case «of the foreigner who is a citizen of a State that does not 

guarantee the actual exercise of democratic freedoms». In this instance, «the 

condition of reciprocity risks being translated into a serious infringement of 

the liberty of those persons to whom the Constitution, in Article 10.3, wanted 

to offer political asylum and who must be able to enjoy in Italy at least all of 

which admits the importance of ethnicity as an ontological prius of the concept of nation, even as it rightly 

affirms that the Nation-State does not constitute the faithful and uniform projection of ethnic origin. 

25 For example F. Bilancia, “Paura dell’altro. Artificialità dell’identità e scelta dell’appartenza”, in F. Bilancia, 

F.M. Di Sciullo, F. Rimoli (eds.), Paura dell’altro. Identità occidentale e cittadinanza, Carocci, Rome, 2008, p. 224 et 

seq. 

26 Constitutional Court judgment no. 120/1967, followed by judgment no. 104/1969. The ordinary Courts 

confirmed this line of interpretation: see the Court of Cassation, Civil Division, Section I, judgment no. 2265 

of 4 March 1988, which deemed that the foreign worker is entitled to the same salary «proportionate» to the 

work and «sufficient for a free and dignified existence», guaranteed to Italian workers. 

27 This interpretation was later confirmed in a series of rejections. See for example, judgements nos. 

144/1970, 109/1974, 244/1974 and 46/1977.



those fundamental democratic rights that are not strictly linked to the status 

civitatis» 28 . Concerning this last aspect only, the Court declared, however, the 

unconstitutionality of Article 45 of Law 69/1963. 

Faced with the violation of the constitutional rights declared in 

international agreements such as the right to defend oneself in a trial and the 

right to life, envisaged and guaranteed by the Universal Declaration of the 

Rights of Man and the International Covenant on Civil and Political Rights of 

1966, the Court confirmed the entitlement of foreigners, and did so in two 

important concessionary judgments: no. 50/1972 and no. 54 /1979. What is 

striking in this last pronouncement was the affirmation, in keeping with the 

previous judgment no. 25/1966, according to which equality is deemed to be a 

«general principle that preconditions the entire legal system in its objective 

structure», independently, therefore, of «the nature and qualification of the 

persons to whom these rights are attributed». 

In this way, a new principle made headway in constitutional 

jurisprudence, – that of rationality/reasonableness – which, despite being a 

«rib» of the constitutional principle of equality referred to in Article 3.1, would 

progressively detach itself, as explicitly acknowledged in judgment no. 

165/2000, in which paradoxically the Court did not examine a constitutional 

challenge from the viewpoint of the unreasonableness of the law, «given that 

the doubt as to its constitutionality was limited to the violation of the 

principle of equality» (sic!). 

Again, it was the irrationality of the law examined by the Court that led 

to the declaration of unconstitutionality, in accordance with Article 3 of the 

Constitution, of a legislative provision that in an accusation of contraband, did 

not enable the foreigner to be freed, even when the offence only carried a 

pecuniary sanction, unless on condition of bail in an amount equal to the 

minimum set by law (judgment no. 215/ 1983). 

Equally predictable was the declaration of unconstitutionality in 

judgment no. 199/1986, also primarily owing to the irrationality of the law, 

which precluded the application of the new norms on the adoption and 

fosterage of minors to a foreign minor who had been abandoned. The Court 

underscored that the «the inviolable duties of solidarity recalled by the same 

Article 2 of the Constitution» imposed on the «judicial authority appointed by 

the ordinary laws to safeguard and enable the effective exercise of human 

rights, among which, in particular, those of the abandoned and of the family 

to affection in the absence of blood kin». The declaration of 

unconstitutionality was pronounced in the light of the general provision of 

Article 2 and of the specific one referred to in Article 30.2 of the Constitution 

28 The Court’s conclusion actually far exceeded its premises, and ends by favouring the journalist who comes 

from a totalitarian system over one from a democratic one. The disavowal, in the country of origin, of 

democratic liberties constitutes the objective premise for obtaining asylum, but does not guarantee the 

“refugee” greater rights than those recognised by Article 10.2 of the Constitution to other foreigners.



(«In the case of incapacity of the parents, the law provides for the fulfilment 

of their duties»). 

In judgment no. 10/1993 the Court – before a law that made no 

provision for the court summons in a criminal trial to be notified to the 

foreigner concerned with a translation in the language of same – rejected the 

challenge, while claiming that the law should be interpreted in line with the 

principle of reasonableness of the right to defence (Articles 3 and 24 of the 

Constitution; Article 6.3.a of the European Convention on Human Rights; 

Article 14.3.a of the International Covenant on Civil and Political Rights). 

Subsequent declarations of unconstitutionality also took into 

consideration the irrationality of the contested laws. This is the case of 

judgment no. 32/1995, which declared the unconstitutionality of a criminal 

law provision that, in envisaging the punishment of expulsion, lacked both 

clarity and specificity and infringed the principle of the legality of the 

punishment laid down in Article 25 of the Constitution) (judgment no. 

34/1995). The same can be said of judgment no. 58, also delivered in 1995, 

which declared the unconstitutionality of a provision that obliged the judge, 

«without having ascertained the concrete existence of social dangerousness, to 

issue, together with the conviction, the expulsion order, to be exercised with 

respect to a foreigner convicted for a crime related to drug dealing». Even if 

the Court recalled Article 13 of the Constitution (which recognises personal 

liberty as «inviolable» irrespective of whether the person is a citizen or 

foreigner»), the irrationality of the law was crucial to declaring the 

unconstitutionality of the provision, because the law on the one hand 

identified the social dangerousness of the individual as a necessary condition 

for his expulsion, and on the other did not actually allow the Court to 

establish the social dangerousness of the defendant. 

And it was the irrationality of the law that determined, yet again, the 

decision of unconstitutionality of a law that made no provision in favour of a 

non-EU parent of the right to reside in Italy, even if capable of enjoying 

adequate life conditions, «in order to be reunited with his child, considered a 

minor under Italian law, legally resident and living in Italy with the other 

parent, although not married to the first». In this case, the Court considered 

both «the fundamental right of the minor to be able to live, where possible, 

with both parents, who had the right-duty to maintain him, educate him, and 

bring him up and the consequent right of the parents to be reunited with their 

child» (Articles 10.2, 30 and 31 of the Constitution; Article 8 of the UN 

Declaration of the Rights of the Child of 20 November 1959) (judgment no. 

203/1997). 

IV. THE INVIOLABLE RIGHTS OF MAN AS INFERRED FROM CONSTITUTIONAL 

RULINGS



There appears to be, therefore, no doubt that beyond some sporadic 

reference to the inviolable rights of man and to the international conventions, 

in the thirty-year period from 1967-97, it was primarily the principle of 

rationality/reasonableness that was employed by the Constitutional Court to 

guarantee foreigners the same constitutional rights as citizens. 

It was accordingly scholars and observers who, in the early 1990s, 

began to indicate which of the inviolable rights of man should also be granted 

to foreigners. An attentive scholar, Professor Giustino D’Orazio, in a book 

specifically devoted to the theme, 29 diligently listed the various rights that 

could be qualified as «inviolable», drawing on the pronouncements of the 

Constitutional Court, albeit relative to Italian citizens, and on international 

laws 30 . 

This is the list: the right to life (judgment no. 54/1979), the right to 

health and to psychological and physical integrity (judgments nos. 88/1979, 

561/1987, 455/1990); the related right to compensation for damage inflicted 

(judgment no. 132/1985), the right to decorum, respectability, confidentiality, 

intimacy and reputation (judgments nos. 38/1973 and 1150/1988), the right 

to freedom of expression also with regard to political opinions (judgments 

nos. 85/1965, 122/1970, 168/1971), the right to appear in Court and defend 

oneself in a trial (judgments nos. 11/1956, 29/1962, 98/1965, 37/1969, 

122/1970, 11/1971, 177/1974, 125/1979, 18/1982, 50/1972 and 188/1980), 

the right to compensation for miscarriages of justice (judgment no. 1/1969), 

the right to review of a criminal judgment (judgment no. 28/1969), the right 

to respect of human dignity (judgment no. 159/1973), the right to 

presumption of innocence in a criminal trial (judgment no. 120/1977), the 

right to the freedom to marry (judgments nos. 27/1969 and 587/1988), family 

rights (including the right to reunification of the family) (judgments nos. 

181/1976 and 132/1985), the right to personal liberty (judgment no. 

766/1988), the right to the freedom and to the secrecy of correspondence and 

of every other form of private communication (judgments nos. 77/1982, 

122/1970, 366/1991), the right to the freedom of travel as an extension of 

personal freedom (judgement no. 6/1962), the right of association (judgments 

nos. 40/1982, 239/1984), the right to the freedom to profess one’s faith 

(judgments nos. 14/1973, 188/1975 and 239/1984), the right to sexual liberty 

(judgment no. 561/1987), the social right to housing (judgment no. 

404/1988). 

To this list, based on constitutional jurisprudence, Professor D’Orazio 

added a second list based on the interpretation of international laws on which 

scholars substantially concurred 31 . 

29 G. D’Orazio, Lo straniero nella Costituzione italiana. Asilo – condizione giuridica – estradizione, Cedam, Padua, 

1992, pp. 240 et seq, 284 et seq. 

30 While brief, it is worth recalling the review of case law compiled by M. Luciani, Cittadini e stranieri, cit. p. 224 

et seq. 

31 G. D’Orazio, Lo straniero nella Costituzione italiana.,cit., p. 284 et seq.



In this second list are considered: the inviolability of the home (Article 

14 of the Constitution was not sufficient for this purpose?), the exercise of 

property rights, the right to the freedom of scientific research, of artistic 

expression, to promote a meeting, of assembly, of university teaching, of trade 

union meetings, the right to hospital assistance, the enjoyment of rights 

governed by economic relations. 

Before turning to the rulings of the last twenty years, it is important to 

make two comments. 

First, in judgment no. 215/1997, the Constitutional Court went beyond 

the interpretations adopted up to that point, in the direction that the 

«inviolable rights of man» guaranteed by Article 2 of the Constitution 

constituted a «synthetic clause» of the rights explicitly foreseen in the 

subsequent provisions of the Constitution, and espoused the opposite theory 

of the «open clause» 32 with a view to including the so-called «new rights» 33 . 

Subsequent case law would confirm, however, that barring universally agreed 

exceptions (for example, the right to a name, the right to one’s own image, the 

right to register a sex change), the «new rights» were merely faculties that 

could be inferred from the «old rights» (such as the right of disabled persons 

to be guaranteed the possibility of attending secondary schools, easily inferred 

from Articles 34 and 38 of the Constitution; or entitlement to a war pension 

for victims of sexual violence during the war, easily inferable from Article 13.4 

of the Constitution; the right of the partner more uxorio to succeed to a rental 

contract, also easily inferred from the combined provisions of Articles 3 and 

42 of the Constitution). 

From an overall assessment of the subsequent jurisprudence, however, 

it emerges that the Court made quite limited use of this new interpretation. In 

general it referred to Article 2 above all to «strengthen» from a rhetorical 

viewpoint interpretative choices that already had an independent basis in the 

Constitution. 

Second. Already in the 1980s, if not beforehand, legal scholars and the 

Courts began to use the adjective «fundamental», instead of «inviolable», so 

much so that by the end of the 1990s the two expressions appeared to be fully 

interchangeable 34 . 

32 A. Barbera, Art. 2, in G. Branca (ed.), Commentario della Costituzione italiana, Zanichelli – Foro italiano, 

Bologna – Rome, 1975, p. 80 et seq. 

33 In favour of the thesis see F. Modugno, I «nuovi diritti» nella giurisprudenza costituzionale, Giappichelli, Torino, 

1995. 

34 In reality there are those who still support the restrictive interpretation of the phrase “fundamental rights” 

(for example P.F. Grossi, Diritti fondamentali e diritti inviolabili nella Costituzione italiana, in Id., Il diritto costituzionale 

tra principi di libertà e istituzioni, II edition, Cedam, Padua, 2008, p. 1 et seq.), but the thesis identifying 

fundamentality with inviolability and vice versa prevails (in this sense, see for all A. Baldassarre, I diritti 

fondamentali nello Stato costituzionale, in Scritti in onore di Alberto Predieri, Volume I, Giuffrè, Milan, 1996, p. 63 et 

seq.; P. Caretti, Diritti fondamentali. Libertà e diritti sociali, II edition, Giappichelli, Turin, 2005, p. XIX ) or those 

who claim that the fundamentality of the rights of freedom derive from this, that they are like a “legal 

foundation at once of the civil society, the political society and of the State” (see again A. Baldassarre, Le 

ideologie costituzionali dei diritti di libertà, in Democrazia e diritto, 1976, 295). Finally, there are those scholars who



V. THE CONSOLIDATED LEGISLATIVE TEXT OF PROVISIONS GOVERNING 

IMMIGRATION AND THE CONDITIONS OF FOREIGN CITIZENS (LEGISLATIVE 

DECREE NO. 286 OF 25 JULY 1998) 

At the end of the 1990s, when a clear – albeit not unanimous – majority 

of legal scholars favoured the full extension to foreigners of most of the rights 

of Part I (but with the exclusion of political rights), Law no. 40 of 6 March 

1998 was approved (called the Turco-Napolitano Law after the Ministers who 

proposed it). This was followed a short time afterwards by Legislative Decree 

no. 286/1998 («The consolidated text of measures governing immigration and 

norms on the conditions of foreign citizens»; hereinafter, «Decree 286»), 

professedly issued in accordance with Article 10.2 of the Constitution. A few 

years later, when the centre-right won the elections, Decree 286 was 

restrictively amended in a series of provisions by Law no. 189/2002, called the 

Bossi-Fini law after the Ministers who proposed it. 

While safeguarding in some cases the applicability of the «clause of 

reciprocity», the amended Decree 286 grants in Article 2.1 «to the foreigner 

present at the border or within the territory of the State (…) the fundamental 

rights of human beings established by the national laws, by the international 

conventions in force and by the generally recognised principles of 

international law»; in Article 2.2, the enjoyment of the same «civil rights 

granted to Italian citizens», except in cases where the international 

conventions in force in Italy and in Decree 286 itself provides otherwise; in 

Article 2.3, guarantees to all foreign workers with regular permits of stay in the 

Italian territory and to their families «parity of treatment and full equality of 

rights with respect to Italian workers», in conformity with the provisions of 

the ILO Convention no. 143 of 24 June 1975; in Article 2.4, guarantees to 

foreigners with regular permits of stay «participation in local public life» (this 

provision, relative to the participation of foreigners in the administrative 

elections has not had any sequel); in Article 2.5 grants foreigners «parity of 

treatment with citizens relative to the legal protection of rights and legitimate 

interests, in dealings with the public administration and in access to public 

services, within the limits and in the ways provided for by law»; in Article 2.6 

guarantees that measures concerning the entry, stay and expulsion of 

foreigners «are to be translated also in summary form in a language 

comprehensible to the recipient, or, when this is not possible, into French, 

say that the fundamentality of a right presupposes its universality (for example L. Ferrajoli, Diritti fondamentali, 

in Id. (ed.), Diritti fondamentali, Laterza, Rome-Bari, 2001, p. 6), and that accordingly this qualification should 

be restricted only to the classic personal rights of liberty. Revelatory of the gradual overcoming of the 

category of “inviolability” is that already in 1976 the Annual Conference of the Catholic Jurists’ Union was 

entitled Fundamental Human Rights, Giuffrè, Milan, 1977, despite the fact that the reference in the Constitution 

to the inviolable rights of man were due to the efforts in the Constituent Assembly of the Catholic jurists. 

Equally significant, in the same sense, is P. Costa’s article on Diritti fondamentali (storia), in Annali, Volume II, 

Book II, Giuffré, Milan, 2008, p. 365 et seq., which makes no allusion whatsoever to inviolable rights.



English or Spanish, with preference for the language indicated by the 

concerned party». 

In other words, Decree 286 assigns to the Constitutional Court and to 

ordinary courts the task of identifying, case by case, the rights that are liable to 

be qualified as «fundamental». Not therefore just civil liberties. The same 

Decree 286, in Articles 35 et seq., actually makes specific provision for health 

assistance to be provided both to foreigners who are registered in the 

National Health Service and to those who are not, the obligation to attend 

school for foreign minors, the right to education, the right to the access to 

universities, the right to exercise a profession, the right of access to housing, 

and the right to free medical care for the poor (Article 38 of the Constitution). 

According to Article 3 of the «Charter of values of citizenship and 

integration» (Ministerial Decree of 23 April, 2007), the «Rights of freedom, 

and the social rights, which our legal system has matured over time must be 

extended to all immigrants…» 35 . 

VI. RULINGS OF THE CONSTITUTIONAL COURT AFTER LEGISLATIVE DECREE 

286/1998 

Following the explicit legislative intervention of Decree 286, which 

assigns to the judge – whether in the Constitutional or ordinary courts – the 

task of verifying on a case by case basis the entitlement of the foreigner to the 

«fundamental rights of human persons», the Constitutional Court no longer 

hesitated, after 1988, to apply to non-EU foreigners the provisions of Part I 

of the Constitution, and did so not infrequently by explicitly invoking, in 

support of the ruling, precisely Decree 286/1988. 

This is the precise origin of the declarations of constitutional 

illegitimacy in the name of safeguarding the principles of family unity 

(judgment no. 376/2000; in the same sense see the Court of Cassation, Civil 

Division, Section I, judgment no. 1714 of 7 February 2001; Court of 

Cassation, Civil Division, Section I, judgment no. 8582 of 3 April 2008; Court 

of Cassation, Civil Division, Section I, judgment no. 19734 of 17 July 2008; 

Court of appeal, Florence, judgment no. 6941 of 12 October 2006; Court of 

Appeal, Turin, 18 July 2007; Tribunal of Pisa, judgment no. 213 of 26 

February 2008; Tribunal of Biella, 26 April 2007) on personal liberty 

(judgments nos. 222 and 223/2004; jurisprudence on the merits, see Tribunal 

of Catania, 16 June 2005); on the principle of the intrinsic reasonableness of 

the laws (judgments nos. 78/2005, 466/2005 and 278/2008; see also the 

35 The position of the commas, however, means that it is not entirely clear whether the phrase “over time” 

refers to the clause that precedes it (“Rights of freedom, and the social rights, which our legal system has 

matured over time …”) or is instead linked to the final phrase (“….over time must be extended to all 

immigrants.”).



Court of Cassation, Civil Division, Section I, judgment no. 16417 of 25 July 

2007; Tribunal of Rome, 28 March 2008; Tribunal of Nola, 6 February 2008); 

on the principle of non-discrimination in social welfare (judgment no. 

432/2005; jurisprudence on the merits, see also Tribunal of Bergamo, 27 

November 2009), on the principle of reasonableness, in addition to the right 

to the safeguarding of health and social assistance (judgment no. 306/2008; 

see also the Court of Cassation, Civil Division, Section I, judgment no. 20561 

of 22 September 2006; the Court of Cassation, Civil Division, Section I, 

judgment no. 1531 of 24 January 2008; Tribunal of Bergamo, 14 March 2008; 

Tribunal of Reggio Emilia, 7 January 2008; Tribunal of Rome, 27 September 

2001), on the principle of parity of treatment with respect to Italian workers in 

relation to possible employment by the Milanese Transport Company 

(Tribunal of Milan, 20 July 2009). 

To these must be added several important decisions of the 

Constitutional Court, which while not cancelling the provision seized, 

imposed on the judge a quo to deliver a given interpretation in line with the 

Constitution (known as the «interpretative» judgments of rejection). This was 

the case of judgment no. 454/1998 which deemed that non-EU workers «who 

are entitled to accede to permanent subordinate employment in Italy in 

conditions of parity with the citizens, and who meet the requirements» are 

entitled to be enrolled in the lists for the purposes of mandatory hiring. 

Similarly judgment no. 198/2000 confirmed the right of foreigners, including 

those without a regular permit of stay, who receive a measure restricting their 

freedom to self-determination, to be put in the condition of understanding its 

content and meaning (in a similar vein, see judgment no. 10/1993, mentioned 

above). 

Various other decisions should then be recalled, which while not 

upholding the question raised by the judge a quo, nonetheless confirmed the 

foreigner’s entitlement to a given fundamental right. This was the case in 

judgment no. 252/2001, according to which a foreigner who entered Italian 

territory illegally to replace a prosthesis on an amputated leg could not be 

expelled, insofar as «the guarantee of the nucleus of the right to health 

safeguarded by the Constitution as an inviolable area of human dignity, (…) 

obliges not to constitute situations without safeguards, which could prejudice 

the implementation of that right (compare, ex plurimis, judgments nos. 

509/2000, 309/1999 and 267/1998)». In the same direction, but in more 

general terms, went judgment no. 19393 of 9 September 2009 of the Court of 

Cassation, Civil Division, Section I (which was important also because it 

rejected the jurisdiction of the administrative courts insofar as humanitarian 

protection cannot be subjected to discretional assessments by public 

administration bodies).



VII. IRREGULAR FOREIGNERS 

The primarily jurisprudential approach adopted so far shows us how, 

even as the different status of foreigners to citizens has been consistently 

affirmed, there has been, thanks first of all to jurisprudence, and secondly to 

Legislative Decree 286/1998, parity between foreigners and citizens in relation 

to the fundamental rights of the person, the family, work and social welfare. 

Before reaching our conclusion, we must, however, ask ourselves if this 

acknowledgement can be said to be general in respect of non-EU foreigners 

who live in Italy. 

The answer is yes. Indeed Article 1.1 of Legislative Decree 286/1998 

provides that: «foreigners who are at the border or in the State’s territory are 

granted the fundamental rights of humans envisaged by national laws, by the 

international laws in force and by the generally recognised principles of 

international law». There is a difference, of course, for the «rights with 

associated costs» (health assistance and social welfare, education, professional 

activities), to which only legally resident foreigners are entitled (Articles 34 et 

seq. of Decree 286), and «civil rights» (in other words the rights set out in the 

Civil Code and by private law), which, in accordance with Article 1.2 are 

granted to foreigners provided they are «regularly resident in the territory of 

the State (…) and unless the international conventions in force in Italy and the 

present combined text dispose otherwise.» 

According to the official data of the Central Statistics Institute collected 

in early-2009, at that time the (regularly resident) foreign population in Italy 

amounted to a little under four million. The data on irregular foreigners in 

Italy vary from survey to survey. According to the OECD there are between 

500,000 and 750,000 irregular foreigners in Italy; one million according to 

Caritas. Again, based on OECD data, of these irregular foreigners 60/65 per 

cent are «overstayers», in other words persons who enter Italy legally, and who 

then remain beyond the terms of their entry visa. A further 25 per cent of 

immigrants enter Italy illegally from other countries who have adhered to the 

Schengen Treaty, exploiting the abolition of border controls. Only 15 per cent 

of irregular immigrants come from the sea and the Mediterranean routes 36 . 

Foreigners who are casually stopped by a police officer, and who are 

unable to justify their irregular residence on Italian soil, are kept in custody for 

24 hours by the police authorities, after which, following an expulsion order 

issued by the Prefect (Article 13 of Decree 286), they are ordered by the 

Police Superintendent («Questore») to leave the country within five days (Article 

14 ibidem). This means that the foreigner, generally lacking in economic 

36 Reported in the Corriere delle Sera, on 10 August 2009. This last group of immigrants from the sea and 

Mediterranean routes appears to have increased in recent months, owing to demographic pressures in sub- 

Saharan Africa and from the southern shores of the Mediterranean, in addition to the worsening food and 

economic crisis.



resources, must leave within five days at his or her own cost (not infrequently 

for another continent and therefore even by plane!). Given that this provision 

is merely obligatory, however, and not coercive, foreigners generally ignore 

the order and trust in their luck, also because, in addition to not having the 

necessary means, they have no desire to return to their home country. 

If the foreigner is stopped again, he or she will be accused of having 

violated the order to leave the national territory (punishable by detention of 

from one to four years) and his or her case will be decided in summary 

proceedings («per direttissima»). In any event, unless the foreigner is detained in 

prison, the Police Superintendent will adopt a new expulsion order with 

accompaniment to the border by the police force. 

This is the case of the «overstayers» and of those who enter Italy 

illegally from Schengen area countries. 

The third case is that of the «boat people», those whom it proves 

impossible to «turn back» in the high sea, since they are in need of assistance 

or for other reasons (for example, to ascertain whether they meet the 

conditions for the right of asylum). Once the boat people have reached Italy, 

the Police Superintendent orders that the foreigners be detained, for the time 

strictly necessary, in a «Centre of Identification and Expulsion» (Article 9 of 

Legislative Decree no. 92 of 23 May 2008) with a view to carrying out the 

necessary controls. 

While paragraph 2 of Article 14 of Decree 286 provides that the 

foreigner shall be «detained in the centre according to procedures that ensure 

all necessary assistance and the full respect of his dignity» and that he or she 

«is guaranteed in every event the freedom to correspond, including by 

telephone, with the outside world», in essence what we are looking at is a 

grave coercive measure restricting the physical liberty of foreigners, which can 

be extended for further controls for up to 180 days, after which, in the event 

of a negative outcome, he or she will be expelled. 

Given that this is a restriction of physical liberty guaranteed by Article 

13.3 of the Constitution, the order of the Police Superintendent must be 

adopted within 48 hours of the detention in the «Centre of Identification and 

Expulsion» and must be approved, on pain of nullity, by a magistrate («Giudice 

di pace») within the following 48 hours, following a hearing in chambers with 

the assistance of a counsel for the defence. 

These rules have been heavily criticised 37 . Account must be taken, 

however, that while it is undoubtedly true that asylum is a genuine individual 

37 See, most recently A. Pugiotto, «Purché se ne vadano». La tutela giurisdizionale (assente o carente) nei meccanismi di 

allontanamento dello straniero, in Convegno AIC 2009, Lo Statuto costituzionale del non cittadino, Jovene, Napoli, 2010, 

p. 333 ss. On p. 393 et seq., Pugiotto advances the following proposals: 1) the fixing of more realistic entry 

quotas to be planned obligatorily each year (while today, after the Bossi-Fini law, the government can decide 

to annul any inflow) rather than periodic amnesties (which only fuel more irregularity, affecting those who are 

excluded from the amnesty provision); 2) the abrogation of the crime of illegal immigration which (in 

addition to classifying irregular and clandestine immigration in the same category as foreigners who commit



right to which any foreigner is entitled so long as he can demonstrate that in 

his home country he is denied the «actual exercise of the democratic freedoms 

guaranteed by the Italian Constitution» (Article 10.3 of the Constitution), the 

same cannot be said of the case in which it is the «masses» that petition to be 

accepted into the national territory 38 even when the «actual exercise of the 

democratic freedoms guaranteed by the Italian Constitution» are denied them 

in their countries of origin (which is by no means uncommon). 

In this instance, the problem cannot be resolved by permitting 

continuous and unlimited flows of immigrants, but rather by addressing it in 

the competent diplomatic and international forums and by working to change 

the political conditions in the migrants’ home countries. 

Many years ago in the first lines of an important comment to Articles 

10 and 11 of the Constitution, a prominent Italian international lawyer, 

Professor Antonio Cassese, wrote that the Italian Constitution has been 

rightly included among the most ambitious ones also «as regards the definition 

of the Italian State’s attitude to the international community». Unlike the 

Constitution of Sardinian State of 1848 (the «Statuto albertino») «our 

Constitution actually contains some fifteen internationalist precepts. This 

greater “attention” paid to international relations is not the automatic result of 

the enlargement of the “area” covered by the modern constitutions: it is, in 

general, the result of a new awareness that the State is wholly part of the 

international reality, which also conditions directly and to a great extent its 

internal conditions» 39 . 

But while this is beyond doubt, it follows that the indication inferable 

from the Constitution is that the problems of international law must be 

addressed and resolved together with the other States. 

Therefore, while on the one hand it appears somewhat far-fetched to 

believe that «mass migration» constitutes «the exercise by millions of human 

beings of a freedom (the freedom of emigration) that the international 

conventions acknowledge as a fundamental right» 40 and that mass movements 

could be assimilated to the exercise of the right of travel and sojourn 41 (first, 

because the freedom to emigrate -which differs from expatriation - is a 

«regulated» and «safeguarded» phenomenon in the legal systems of both the 

home and destination country 42 ; secondly, because the right to freedom of 

crime) is destined to trigger a surge in the number of persons to be expelled; 3) the possibility of regularizing 

in itinere the foreigner’s irregular status at previously established legal conditions (thereby avoiding the current 

compression of the irregular immigrant with the clandestine one); 4) the extension of the agreements of 

readmission with the home countries (making them conditional upon the respect of the fundamental rights of 

the repatriated foreigner)”. 

38 In this sense, see C. Esposito, writing well before the present phenomenon exploded, in his article Asilo, in 

Enc.dir., Volume III , Giuffrè, Milan, 1959, p. 225. 

39 A. Cassese, Articles 10 and 11, in G. Branca (ed.), Commentario della Costituzione, Zanichelli-Foro italiano, 

Bologna-Rome, 1975, p. 461 et seq. 

40 V. Onida, Lo Statuto costituzionale del non cittadino, cit., p. 18. 

41 Ibidem, cit., p. 15. 

42 A. Pace, Problematica delle libertà costituzionali. Parte speciale, II edition, Cedam, Padua, 1992, p. 296 et seq.



travel and sojourn is an individual right, that could never be extended to 

include mass movements), on the other hand it must be admitted, given these 

imposing mass phenomena, that stable and effective legal solutions on 

emigration can only be found in international treaties and accords involving 

not only all the European States but also the same States from which these 

flows originate. 

Even planning for these flows on an annual basis, as has been 

suggested, 43 would in no way prevent the «merchants of death» from taking on 

board multitudes of desperate individuals in pursuit of a better life. 

43 A. Pugiotto, Purché se ne vadano, cit., p. 393 et seq.

PUBLIC-PRIVATE PARTNERSHIPS IN ITALY 

GIUSEPPE FRANCO FERRARI * 

PART 1 THE PUBLIC-PRIVATE PARTNERSHIP 

1. CONCEPT AND DEFINITION 

The crisis in the public finances and the limited availability of money have 

stimulated, both in Italy and abroad, the recourse to public-private 

partnerships both for the management of services as well as the construction 

of public works. Both with regard to the contractual aspect of the forms of 

partnership as well as the institutional aspect, Italian law has been confronted 

by the need to regulate figures and types of contract, the structuring of which 

in any case appears to reflect the influence of European law and the findings 

contained in Community case law. 

Moreover, in recent years collaboration between the state and the private 

sector has received a decisive stimulus also thanks to the solid constitutional 

grounding represented by the principle of horizontal subsidiarity contained in 

Article 118(4) of the Constitution, as amended by the Constitutional reform 

of 2001. 1 This law provides that the state and the local government bodies 

shall favour the private initiative of citizens, both individually and in groups, 

when carrying on activities of general interest. In other words, the public 

authorities must promote forms of collaboration between the public and 

private sectors with a view to obtaining efficiency and value for money in 

administrative action. The impetus to regulate such partnerships therefore 

* Giuseppe Franco Ferrari is Professor of Comparative Public Law at Bocconi University 

1 Constitutional law No. 3 of 18 October 2001.



results from the need for the models of cooperation between the 

administrations and private individuals to express a different mode of 

conceptualising the role and action of the public authorities when pursuing 

general interests. 

These are not new questions for Italian law, since the issue of collaboration 

between the public authorities and private companies arose, within the 

academic literature, at least from the first half of the twentieth Century, when 

the intervention by the state within the economy resulted in the birth of the 

first forms of joint enterprises, variously classified depending on the activity 

carried on by the private subject or the extent of public participation. 2 Indeed, 

Italian lawyers quickly started asking themselves, when confronted with the 

tendency towards the exercise of public functions through the private sector, 

whether the essential task of the “new” administrative law was being set out 

against these contours. 3 

Accordingly, Italian legislation governing PPP does not simply reproduce 

secondary Community law, but is rather shaped by notions developed within 

the academic literature, case law and long-standing legislative contributions or, 

in any case, those which reflect the Italian administrative tradition. Moreover, 

not only is there no single European model for PPP, and even so, it cannot 

even be said that certain more or less tried and tested forms of cooperation 

between the State and private economic operators are regulated adequately on 

a European level. This is not surprising: the national systems differ 

significantly as regards the regulation of relations between the public 

authorities and private individuals, since the issue does not come without its 

more general implications both as regards administrative action to promote 

the public interest, as well as the problem of the regulation of private 

economic initiative. 

2 L. GANGEMI, Le società anonime miste, Florence, La Nuova Italia, 1932, 5 et seq. On this point see also A. 

ROSSI, Società con partecipazione pubblica, entry in Enc. giur., vol. XXIV, Rome, 1988, 1 et seq. 

3 V. F. BENVENUTI, Profili giuridici dell’organizzazione economica pubblica, in Rivista delle società, 1962, 218.

Giuseppe Franco Ferrari 

Public Private partnership in Italy 

From this perspective, the Commission's Green Paper on Public-Private 

Partnerships 4 appears to paint a highly partial picture of the forms of 

collaboration between the public authorities and businesses. The very 

definition of PPP to which the Commission refers appears – as is often the 

case in Community law – both to be generic as regards the aspect of the form 

which the cooperation between the public authorities and the private sector 

may take on, whilst at the same time specific with regard to the subject matter 

of the cooperation, specified as funding, construction, management or 

maintenance of an infrastructure or the provision of a service. 5 The result is 

that, on the one hand, categories of contracts which Italian lawyers tend not 

to classify as PPP 6 are potentially included, whilst on the other hand instances 

of collaboration between public and private sectors that are well known under 

national administrative law appear to be excluded. 

PPP is subject to the general regulations governing public sector contracts 

contained in the relative Code. 7 Specific provisions contemplated under 

special special legislation then regulate specific instances of PPP. 

More specifically, the decree amending the Code added sub-section 15-ter to 

Article 3, 8 clarifying that “'public-private contracts' are contracts which have 

as their object one or more services such as the design, construction, 

management or maintenance of a public work or a public utility, or the 

provision of a service, including in any case total or partial funding of such 

services by the private sector, in both normal and non-standard forms, with 

an allocation of risks in accordance with applicable Community requirements 

and guidelines”. The provision in question also contains a non mandatory list 

4 COM, 2004, 327, definitive, of 30-4-2004. 

5 More specifically, the Green Paper identifies the public-private partnership (“PPP”) as those “forms of 

cooperation between public authorities and the world of business which aim to ensure the funding, 

construction, renovation, management or maintenance of an infrastructure or the provision of a service”. 

6 On this point, see M. CHITI, I partenariati pubblico-privati e la fine del dualismo tra diritto pubblico e diritto comune, 

in Id. (ed), Il partenariato pubblico-privato, Naples, ESI, 2009, 3 et seq. 

7 Legislative decree No. 163 of 12 April 2006. 

8 See Article 2(1)(a) of legislative decree No. 152 of 11 September 2008.



of the contracts which fall within the forms of public-private partnership. 

More specifically, these relate to the concession of public works or public 

services, financial leasing, the procurement of public works through project 

financing and joint enterprises. In addition, PPP operations may also include 

the award of a general contract in cases in which the consideration for the 

completion of the public work is wholly or partially deferred and associated 

with the availability of the public work for the commissioning body or for 

third parties. 

The Code does not expressly differentiate between institutional PPP and 

contractual PPP; however, the distinction is recognised within the academic 

literature which groups essentially joint enterprises and foundations under the 

first category. 9 Indeed, with regard to this latter issue public lawyers point to 

an additional defining feature of Italian PPP compared to its European form; 

under Community law, the definition of partnership – that adopted by the 

Commission's Green Paper – does not appear to embrace the activity of 

foundations which on the other hand have had a significant impact under 

Italian experience. 

The literature has not failed to point out that the characteristics of Italian PPP 

are not fully reflected in the account provided by the Commission even as far 

as contractual PPP is concerned. In particular, there has been discussion over 

the inclusion, as a category of PPP, of public sector contracts, which are 

included under the “European model” but not expressly mentioned in the 

Italian Code. This is in fact a type of contract for which it is not possible to 

identify a collaboration between the public and private sectors for the 

achievement of an objective of common interest. On the contrary, under 

public sector contracts the framework of interests is established starting from 

9 The classification of foundations as institutes falling under the PPP model has been discussed within the 

literature; see T. PONTELLO, Il partenariato pubblico-privato istituzionalizzato: le fondazioni per la gestione di beni e 

servizi culturali e le società di capitali ad oggetto culturale, in M. CHITI, Il partenariato pubblico-privato, cit. 317 et seq.



the antagonistic positions of the authorities and the undertaking. 10 

In other words, from the perspective of Italian public law academic literature, 

PPP is characterised by the collaboration aimed at the pursuit of a general 

interest in which the private sector also participates – albeit on the basis of a 

financial calculation. For this reason, sponsorship contracts – which are not 

by contrast governed by secondary Community law – through which a public 

body acquires funds necessary in order to guarantee a service or to complete a 

public work should be included within the category of PPP. By contrast, the 

inclusion of this form of contract within the PPP framework appears not only 

to be consistent with the overall scheme of the legislation governing the area 

of law, but also appropriate since sponsorship has become – all things 

considered quite recently 11 – an ordinary procedure for obtaining funding by 

public bodies, especially local authorities. 

1.2 INSTITUTIONAL PPP 

Under Italian law, forms of institutional public-private partnership essentially 

include joint enterprises and foundations. 

The analysis of the typical figure of the joint enterprise is complicated by the 

variety of legislative initiatives which have occurred in this area of law and 

above all by the changeable nature of the goals pursued form time to time by 

Parliament. 

The first form of joint enterprise regulated under Italian law is that with 

predominantly public capital for the management of public services, which the 

10 V. M. CHITI, I partenariati pubblico-privati e la fine del dualismo tra diritto pubblico e diritto comune, cit. 5. 

11 See for example the judgment of the Regional Administrative Tribunal for Campania, Naples 8 th div. No. 

7939 of 6 September 2006 in which the administrative court accepted that the public authorities were entitled 

to use sponsorship contracts, including without recourse to open tendering procedures by the awarding body 

in its search for the sponsor. On this point, see S. CARACCIOLO, La sponsorizzazione negli enti pubblici, in 

Amministrazione in cammino, available on the internet site www.amministrazioneincammino.luiss.it.



body responsible for the services has established or holds shares in. 12 The 

recourse to this form of procurement occurs, pursuant to Article 22 of law 

No. 142 of 8 June 1990, when the shareholding of a mix of public or private 

bodies is appropriate taking into account the nature or geographical extent of 

the service. 

The provision was subsequently repealed by legislative decree No. 267 of 18 

August 2000, Article 113 of which regulates procedures for the procurement 

of local public services of financial significance, clarifying that awards may be 

made also to companies with mixed public-private capital, provided that the 

private company is chosen according to open tendering procedures that 

comply with national and Community competition law. 

One year later, law No. 448 of 28 December 2001 markedly paired down the 

role of joint enterprises, replacing the text of Article 113 of legislative decree 

267/2000 with provisions which require, for the delivery of services, the 

recourse to capital companies selected according to open tendering 

procedures. For the management of networks, where they are separate from 

service provision operations, Parliament has permitted the establishment of 

joint enterprises with a majority public shareholding 13 as an alternative to 

contracting out to the private sector. 

The spaces left to joint enterprises are further limited by laws No. 296 of 27 

December 2006 and No. 244 of 24 December 2007. In particular, these 

measures specify a maximum number of members appointed by local public 

shareholders or by the regions on the board of directors, with the intention of 

preventing company decision making procedures from being controlled 

predominantly by the public shareholder. 14 

The trend towards reining in the role of the joint enterprise is also confirmed 

12 See Article 22 of law No. 142 of 8 June 1990. 

13 See G.F. FERRARI, Servizi pubblici locali e forme miste di gestione pubblico-privati, in Diritto pubblico comparato ed 

europeo, 2004, 1871 et seq. 

14 See Article 1(729) of law no. 296 of 27 December 2006 and Article 3(17) of law No. 244 of 24 December 

2007.



by Article 23-bis(2) of law No. 133 of 6 August 2008, which defines the 

“ordinary procedures” for the award of contracts to manage local services, 

with procurement being made by tender to entrepreneurs or companies 

incorporated in any form. The alternative contemplated by Parliament by way 

of exception – that may be used in situations in which the particular financial, 

social, environmental or geomorphological characteristics of the territorial 

context do not permit the effective recourse to the market – consists in 

procurement according to the so-called in house provision model. 15 No space 

therefore remains for joint enterprises. 16 

However, feeling the need to comply yet again with Community guidelines, 

the Italian Parliament has recently intervened to redraw the boundaries of the 

joint enterprise, rediscovering its utility. Law No. 166 of 20 November 2009 – 

converting decree-law No. 135 of 25 September 2009 – amended the 

aforementioned Article 23-bis, adding companies with mixed public and 

private shareholders to the two alternatives mentioned above, provided that 

the selection of the partner occur according to open tendering procedures. In 

fact, the latest condition implies the exclusion of the “in house” model, as the 

Council of State recently stated 17 . Moreover, the private shareholder must be 

allocated a shareholding not lower than 40 percent. 

From this perspective, the Italian Parliament appears to have made a clear 

choice in favour of a joint enterprise in which the balance between the public 

authority and private shareholders is guaranteed ope legis, with a view to 

attracting private capital into the sector of public services. 

The inconsistency of a legislative framework which, on the one hand, 

provides incentives for efficiency and competition, whilst on the other hand 

offers, as the only alternative to contracting out to the market, recourse to in 

15 See Article 23-bis(3) of law No. 133 of 6 August 2008. 

16 See R. CARANTA, Ancora in salita la strada per le società miste, in Giornale di diritto amministrativo, 2008, 1120 et 

seq. and M. CHIAPPETTA, Società miste e affidamenti in house al vaglio del Consiglio di Stato…aspettando il Legislatore, in 

Mercato concorrenza regole, 2008, 375 et seq. 

17 See Council of State, sez. V, No. 5214, 4 August 2010.



house provision (in sectors in which the prospectives for return on the 

venture capital must be weighed up against the restrictions imposed in order 

to pursue the public interest) was finally resolved by restoring a role to the 

forms of institutionalised partnership. 18 

However, the inconsistency already mentioned comes to the fore again with 

regard to the situation of the smaller municipalities, given the provision of 

Art.14, sec. 32, Law No. 122 of July 30 th 2010 (converting Decree-Law No. 

78, 31 st May, 2010). In particular, the above said Article forbids municipalities 

with population of less than 30,000 inhabitants to maintain or form 

companies. The provision shall not apply to companies characterized by an 

«equal or proportional to population participation» and formed by two or 

more municipalities of more than 30,000 inhabitants. On the contrary, 

municipalities with populations between 30,000 and 50,000 inhabitants are 

permitted to hold shares in only one company. Most assuredly the rules 

imposed by Art. 14, sec. 32 are consistent with the obligation of joint 

management of the fundamental functions of the municipalities 19 . 

Nevertheless, these provisions appear inconsistent with the set of rules that 

regulates public services (see for example the aforementioned decree-law No. 

135 of September 25 th , 2009, amending Article 23-bis of decree-law, No. 112 

of 2008), which requires municipalities, with certain exceptions, to provide 

such services through companies, including joint enterprises. 

Having established the possibility and the burdens of using joint enterprises 

for the management of public services, it is now necessary to resolve the issue 

of the legal classification of these subjects. In fact, the issue is closely related 

to that of the compatibility of the subject's status as a company with the goals 

of a public nature which it is called upon to achieve. The Italian Parliament 

18 See A. MUSSA, L’utilizzqabilità delle società a capitale misto pubblico-privato per la gestione dei servizi pubblici, tra 

precisazioni in ordine agli specifici requisiti legittimanti e residue necessità di chiarimenti, in Foro amministrativo Consiglio di 

Stato, 2009, 802 et seq. 

19 See also Art. 14, sec. 31, l. No. 122/2010.



does not resolve the problem, but has limited itself to assuming that it was 

compatible, up to the point that – subject to the relevant exceptions contained 

in special sectoral legislation – it considers companies regulated according to 

ordinary arrangements and joint enterprises to be equivalent. 

For its part, the academic literature in Italy has discussed in some detail the 

legal classification of joint enterprises. To summarise, the debate may be 

encapsulated through a comparison between three views. The first view 

asserts that these subjects should be essentially public; the second view argues 

that the issue turns on the formal legal nature of the body and is inclined 

towards a classification in private law terms; finally, the third identifies the 

company with mixed public and private shareholdings as a kind of tertium 

genus. 20 The Council of State has recently adopted this last interpretation, 

preferring to speak of a hybrid public-private body. 21 

Moreover, the Constitutional Court itself held – already during the first half of 

the nineteen nineties, when Parliament's preference for private law 

instruments in order to pursue public interests was more pronounced – that 

the dichotomy between a public body and a company regulated by private law 

is fading away due to the growing use of public limited companies for goals in 

the public interest, in addition to the Community guidelines favourable to an 

interpretation of the concept of public company in substantive terms. 22 

It is finally necessary to clarify the typical characteristics of the joint 

enterprise: they essentially consist in the pursuit of public interests, the 

involvement of public authorities in the procedures for the appointment of 

members to the boards of directors as well as exceptions from the ordinary 

arrangements applicable to companies contained in special legislation or in the 

20 For a detailed description of the theories, see C. MARCOLONGO, Il partenariato pubblico privato 

istituzionalizzato: un tentativo di ricostruzione, in M. CHITI (ed.), Il partenariato pubblico-privato, cit. 216. On these 

aspects, see also F. MERUSI, Un “viatico costituzionale” per il passaggio dall’ente pubblico alla fondazione privata”, in 

Diritto delle società, 2004, 275 et seq. 

21 See Council of State, 5 th Division, judgment No. 4586 of 3 September 2001 and judgment No. 3448 of 

September 2002. 

22 See Constitutional Court, judgment No. 466 of 17 December 1993.

company articles. 



Italian law provides for another significant instance of cooperation between 

the public authorities and private bodies which manifests itself through the 

creation of a distinct body. This concerns the institute of the administrative 

law foundation, also defined as a “cultural” foundation where it is charged 

with the management of services relating to cultural heritage of national 

interest. 

The reference legislation was originally contained in Article 10 of legislative 

decree No. 368 of 20 October 1998 which provided that, in order to permit it 

to carry out its functions more effectively, the Ministry for Cultural Heritage 

and Activities could “establish or participate in associations, foundations or 

companies”, according to procedures and criteria to be established by a 

specific regulation. This regulation was issued through ministerial decree No. 

491 of 27 November 2001, laying down provisions concerning the 

establishment of and participation in cultural foundations by the Ministry. 

Article 10 of legislative decree 368/1998 was subsequently repealed by Article 

6 of legislative decree No. 156 of 24 March 2006, since the Italian Parliament 

intended to extend the principle of open tendering procedures also to the 

cultural heritage sector, with the Cultural Heritage and Landscape Resources 

Code. 23 Specifically, the activities involving the exploitation of cultural heritage 

may be managed directly, through organisational structures internal to the 

public authorities, or indirectly, through the concession to third parties by the 

authorities which control the resources or by the legal bodies which have been 

granted the right to exploit these goods (which include foundations), 

according to open tendering procedures, on the basis of a comparative 

assessment of the specific projects. 

The mandatory recourse to open tendering procedures in essence turns 

foundations from bodies charged with management and operational tasks into 

23 See legislative decree No. 42 of 22 January 2004.



awarding bodies, in accordance with the Community law preference for 

tendering. At the same time, the legislative amendments once again give the 

impression of a legislature devoid of any coherence which first promotes a 

specific form of management – in this case of artistic heritage – creating the 

figure of a cultural foundation, whilst then ending up distorting its function. 

1.3 CONTRACTUAL PPP 

Article 3(15)-ter lists, by way of example, a series of contracts that may be 

classed under the contractual PPP model. These include the concession of 

public works or public services, financial leasing, sponsorship contracts, and 

the procurement of public works through project financing. As mentioned 

above on the other hand, the figure of the general contractor takes on the role 

of a private sector partner, under the terms of the above provision, only when 

payment for the completion of the public works project is entirely or partially 

deferred and associated with the availability of the public work for the 

commissioning body or for third party users. 

From the perspective of the Italian academic literature, the inclusion of public 

sector contracts appears to be much more disputed given the absence of that 

form of cooperation directed at the achievement of a common objective 

which should characterise PPP contracts, as well as of the lack of any 

management risk for the contractor, the latter being an element for 

distinguishing between the contracting out of services and the concession of 

services. The European Commission in any case regards it as one of the forms 

of PPP, adopting a perspective that is so to speak substantive, thereby treating 

public sector contracts as an appropriate instrument for the management of 

public services and, accordingly, taking the service targets for users to be the



predominant aspect of the contractor's activity. 24 Although the relationship 

between the public authorities and the private body is weaker, within the 

public sector contract it may in any case be stated that the transformation of 

the role of the State – from provider to regulator – on which the institute of 

the public-private partnership is based has been achieved. 

The list contained in Article 3(15)-ter, as mentioned above, is not mandatory. 

However, this does not imply that the administration may pursue the goal of 

attracting private capital without any constraints. In fact, the principle of 

legality requires that the contractual figures which may be used in order to 

pursue the public interest are standard and, therefore, regulated by law, 

including where appropriate by sectoral legislation. 

PPP contracts are covered by the general provisions governing public sector 

contracts contained in the Code of Public Contracts, and are accordingly not 

subject to the ordinary legal arrangements. 

As regards the issue of the classification of the contract, as for the provision 

of a service or for financing, it is necessary to distinguish between the 

different cases involving the concession of services, project financing, 

financial leasing and sponsorship contracts. 25 

The first encompasses a service contract which becomes an ancillary 

instrument for the regulation of the relationship established between the 

public authorities and the private body. The last two models of PPP on the 

other hand consist in funding contracts, since the agreement specifies the 

investments which must be made or, more generally, the financial plan for the 

operation. Project financing 26 is on the other hand characterised by a complex 

multi-contractual framework elaborated on a rolling basis, 27 since as a rule it 

24 See C. CORSI, Le concessioni di lavori e di servizi, in M. CHITI (a cura di), Il partenariato pubblico-privato, cit. 56. 

25 They are therefore not subject to the provisions set under the Code but rather, pursuant to Article 26 of 

the Code of Public Contracts, to the general principles laid down by the Treaty establishing the European 

Community. 

26 See G.F. FERRARI, F. FRACCHIA (ed.), Project financing e opere pubbliche: problemi e prospettive alla luce delle recenti 

riforme, Milan, Egea, 2004. 

27 See P. SANTORO, Manuale dei contratti pubblici, Rimini, Maggioli, 2002, 225.



involves the existence of two contracts: a service contract between the 

commissioning body and the suppliers and/or bodies which carry out the 

work, with the subsequent intervention of the funding body which oversees 

the regulation of the public work and makes payment; this is accompanied by 

a financing contract between the public authorities and the financing body. 

1.4 THE FINANCIAL AND STATISTICAL IMPACT OF CONTRACTUAL PPP 

The last annual report published by the Osservatorio Nazionale sul partenariato 

pubblico-privato [National Monitoring Centre on Public-Private Partnerships] 

states that it “is moving out of an embryonic phase… although it cannot yet 

be asserted that it has entered into a phase of maturity”. 28 

In 2008 PPP underwent a significant expansion, passing from 1% in 2002 to 

9% of the total number of public contracts for the award of public works. 

The extent of the development of forms of PPP is even more marked if one 

considers the percentage as a function of the value of the tenders: in 2008 in 

fact, PPP represented 21% of the overall value of the tenders. 

As far as the different manifestations of the market for PPP are concerned, 

again according to the latest data released by the Monitoring Centre, 

concessions of services represent 61% of the overall tenders for PPP, 

although their impact on the overall value of the tenders, equal to 7%, is not 

particularly significant. The concession of construction and management 

contracts on a proposal by the tendering body or of the promoter on the 

other hand represents 31% of the market and 86% of investments. In this 

regard it should be pointed out that the larger scale projects, such as road 

infrastructure, are normally awarded through concessions following a 

28 See Osservatorio Nazionale del Partenariato Pubblico Privato, Il mercato del Partenariato Pubblico Privato nel 

2008, available on the website www.infopieffe.it/top-ricerche/osservatorio-nazionale-partenariato-pubblicoprivato.links.htm.



proposal by a private promoter. 

The other forms of public-private cooperation (joint enterprises, 

sponsorships, district regeneration contracts and building programmes) 

represent 7% of the PPP market. 

Breaking down the data in line with the sector of operations, PPP awards have 

been made above all: in the area of water, energy and communications 

services (in which 44 tenders out of 56 were awarded with PPP contracts); the 

construction of sporting and parking facilities (respectively 31 out of 34 and 

31 out of 32 tenders); operations relating to street furniture (25 out of 36) and 

the healthcare sector (14 out of 16 tenders). With regard to the amounts 

invested, the public service and healthcare sectors represent the largest market 

share, with respectively 786 and 626 million Euro out of a total of 3,540 

million Euro of awards. 

PART 2 THE REGULATION OF AWARD PROCEDURES 

2.1 LIMITS ON RECOURSE TO PPP 

Under Italian law there are no express limits on the recourse to forms of PPP. 

The discussion must therefore be framed in terms of the general limits to 

which the public authorities' freedom of action is subject. 

These limits are represented, first and foremost, by the principles of 

impartiality and proper administration, laid down by Article 97 of the 

Constitution. From this perspective, the contractual activity must be aimed in 

the most adequate and convenient manner possible at the pursuit of the 

public interest. The principle of impartiality also requires that the 

administration not discriminate against the rights of the subjects affected by 

its actions. In other words, where it is possible to choose the means for



pursuing the objectives specified by law, the choice must be compatible with 

the respect for the interests to be protected through administrative action. 

In accordance with these general principles, Article 2 of the Code of Public 

Contracts specifies that the choice to award contracts for public works, public 

service or public supplies must seek to guarantee the quality of service 

provision and must comply with the principles of value for money, efficiency, 

timeliness and correctness. Moreover, it must respect the principles of free 

competition, equal treatment, non discrimination, transparency and publicity. 

Therefore, the use of a form of PPP is justified if this choice is consistent with 

the goals pursued, whilst it need not in itself be preferable over other 

practicable solutions. 

The examination of the limits placed on the contractual activity of the public 

authorities must be carried out with reference to the division of competences 

between the State and the regions. The Constitution does not specify contract 

law as falling under the competence of the State, and the clause reserving 

residual competences to the regions could suggest an interpretation under 

which that area of competence was absorbed under that of the regions. 

However, a conclusion of this nature does not consider the capacity of certain 

areas of law, reserved to the legislative power of the State, to operate as limits 

for regional legislation. 29 

Accordingly, the Constitutional Court has clarified that the entire contractual 

activity of the public authorities does not constitute a self-standing area of 

law, but rather an activity which pertains to the individual areas of law over 

which it has effects; 30 it has subsequently identified certain exclusive State 

competences which centralise certain aspects of the regulation of the 

contractual activity of the public authorities. 

In particular, the area of “competition law” is of a cross-cutting nature and, 

29 On these aspects, see G.F. FERRARI, Finanza di progetto: i profili di diritto costituzionale e comunitario, in G.F. 

FERRARI, F. FRACCHIA (eds.), Project financing e opere pubbliche, cit. 12 et seq. 

30 Constitutional Court, judgment No. 401/2007.



therefore, produces effects over various matters. For example, the stage 

involving open tendering procedures falls under competition law and 

therefore the exclusive competence of the State. It follows from this that the 

local authorities may conclude PPP agreements only within the limits and 

according to the procedures laid down on state level. On the basis of this 

reasoning, the Court struck down Calabria region law No. 12 of 2007 which 

provided for the extension of contracts for the management of regional 

helicopter rescue services, as an exception to the procedures laid down by the 

Code of Public Contracts. The constitutional justices held that the legislation 

regulating tender procedures aimed to permit the full opening of the market in 

the sector of public contracts and, therefore, is to be regarded as falling under 

the area of competition law, over which the State has exclusive competence. 31 

The same applied to regional provisions regulating the various aspects of 

procurement procedures, which substantially affected the possibility of 

establishing an effectively competitive market within the sector of public 

contracts. 32 

Nevertheless, some albeit limited space does remain for the region, since 

regional legislation may make provision, provided that it also seeks to produce 

effects that aim to promote competition 33 or in any case does not contrast 

with the state level provisions which regulate and promote competition. 

2.2 THE EVALUATION FOR THE PURPOSES OF THE AWARD OF THE PPP 

CONTRACT 

The recourse to forms of PPP is subject to an assessment of the efficiency 

and cost of the choice in favour of public-private collaboration. In other 

31 Constitutional Court, judgment No. 320/2008. 

32 Constitutional Court, judgments No. 322/2008 and 411/2008. 

33 See the recent Constitutional Court judgment 160/2009.



words, the Italian Parliament has not expressed an absolute preference, all 

things being equal, in favour of PPP. 

In fact, the law expressly provides that the procurement and implementation 

of public works, public services and public supplies must seek to guarantee 

the quality of service provision and must be made in accordance with the 

principles of value for money, efficiency, timeliness and correctness. 34 In 

particular, the principle of value for money may be subject to criteria, 

specified in the individual call for tender, that are inspired by social 

requirements, the protection of public health and the environment or the 

promotion of sustainable development. For these reasons, the choice in 

favour of forms of PPP will be justified where it is compatible with these 

general requirements and not by virtue of a generic preference for forms of 

collaboration between the public authorises and the private sector. 35 

On this point the case of joint enterprises is emblematic, as Parliament for a 

long time preferred the option of in house provision in cases where it was 

impossible to use the market for the procurement of public services. 

As regards the assessment criteria capable of directing the public authorities 

when choosing whether to collaborate with the private sector or not, within 

the Italian experience there is not one single model, but rather sectoral 

instruments, which have often changed compared to the Anglo-Saxon 

experience. Thus, for example, for cases involving project financing, the 

Autorità per la vigilanza sui contratti pubblici [Oversight Authority for Public 

Sector Contracts] specifies the method of the Public Sector Comparator 

(PSC) in order to determine whether the choice by an administration to carry 

out a public works project using project financing effectively represents the 

most effective and efficient solution where a public sector alternative is 

available. 

34 Cf. Article 2 of the Code of Public Contracts. 

35 On this point see the Council of State (4 th division) judgment No. 75 of 13 January 2010.



In any case, it is the Oversight Authority which carries out analyses of the 

most appropriate assessment techniques in the various sector in which the 

public authorities may enter into contracts. 

2.3. THE OVERSIGHT AUTHORITY FOR CONTRACTS FOR PUBLIC WORKS, PUBLIC 

SERVICES AND PUBLIC SUPPLIES 

The regulatory functions over the PPP operations are carried out by the 

Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture [Oversight 

authority for contracts for public works, public services and public supplies], 

regulated by Article 6 of the Code of Public Contracts. 

The Authority is a collegial body, endowed with operational, decision making 

and evaluative independence and organisational autonomy. It is comprised of 

seven members appointed by resolution adopted in consultation by the 

Presidents of the Chamber of Deputies and of the Senate; the term is for 

seven years and may not be renewed. In order to guarantee diversity of 

experience and knowledge, the members of the Authority are chosen from 

persons of recognised professional standing operating in technical, economic 

and legal sectors. They may not carry on any professional or consultancy 

activity, may not be the directors or employees of public or private bodies, 

nor may they occupy other public offices of any nature or hold public elected 

office or positions in political parties, and if they do so they are liable to be 

removed from their position. The functioning of the body in question is 

guaranteed by the contributions due to it from the public and private bodies 

subject to its oversight, the amount of which is determined annually. 

The Authority exercises oversight and disciplinary powers. It does not 

however enjoy regulatory powers, a fact that is not without more general 

implications. In fact, since PPP operations involve various sectors, and



therefore transcend the field of competence of various independent 

administrative authorities, the regulation of the PPP market is of necessity 

partly “fragmented”. In order to make up for this flight towards sectoral 

regulators, the Authority has however been conferred with the role as the 

body responsible for sending reports and notices to the Government and 

Parliament and to formulate proposals to amend legislation in force. 

The oversight activity relates to public sector contracts, including those of 

regional interest, for public works, public services and public supplies in both 

ordinary and special sectors and is intended to guarantee compliance with 

legislative and regulatory provisions including, in particular, respect for the 

principles of correctness and transparency in the procedures for selecting 

contractors, and of value for money and the efficient implementation of 

contracts, as well as respect for the rules of competition law in the individual 

tender procedures. Moreover, the Authority verifies the legitimacy of the 

exceptions to the provisions of the Code for contracts in so-called excluded 

sectors, namely those to which the provisions of the Code of Public Contracts 

do not apply. 

The oversight activity may lead to the formulation of proposals to the 

Government on the modifications necessary to the legislation in force. 

The competences of the body in question also include the drafting of an 

annual report, addressed to Parliament and to the Government, in which 

notice is given of malfunctions, if any, identified in the sector of public 

contracts, with particular reference: a) to the frequency of the recourse to 

non-tender procedures; b) to the inadequacy of the publicity of notices; c) to 

deviations from the standardised costs for type of service and supply, as 

determined by the Monitoring Centre for public sector contracts; d) to the 

frequency of recourse to suspensions in implementation or variations after 

work has commenced; e) to the failure to comply, or late compliance, with the 

obligations on concessionaires and tenderers; and f) to any anomalies



encountered in relation to litigation. 

Moreover, the body oversees the system of classification and, in cases 

involving certified inaction by the certification bodies, may annul the 

certifications issued despite failure to satisfy statutory requirements, as well as 

suspend the said certifications on a precautionary basis. 

As far as its disciplinary powers are concerned, these are exercised following 

recourse to investigative measures, such as the collection of information or 

requests to submit documents. 36 An administrative pecuniary sanction may be 

imposed where the interested parties refuse or fail without a justified reason 

to provide the information or submit the documents, or if they provide 

information or submit documents which are not accurate. The imposition of 

pecuniary sanctions is provided for also in cases in which the economic 

operators do not comply with the request by the tendering authority or the 

awarding body to prove that they satisfy the prerequisites for participation in 

procurement procedures, or again when they provide data or documents 

which are not accurate regarding their satisfaction of these prerequisites to the 

tendering authorities or awarding bodies or to the certification bodies. 

If, on conclusion of the oversight activity, the Authority ascertains the 

existence of irregularities, it transmits the documentation and its own findings 

to the regulatory bodies and, if the irregularities suggest that an offence has 

been committed, to the competent judicial organs. The documentation and 

the findings are transmitted to the Office of the Prosecutor General or the 

Court of Accounts [Corte dei Conti] where the Authority concludes that the 

implementation of public sector contracts has resulted in a detriment to the 

36 More specifically, the investigatory powers vested in the Authority within the ambit of its own activities 

include the power: a) to request from awarding bodies, the economic operators which implement the 

contracts, as well as any other public authority or other body, including regional bodies, economic operators 

or natural persons in possession thereof to hand over any documents, information and clarifications relating 

to the public works, public services and public supplies underway or pending commencement, as well as the 

conferral of project tasks and procurement; b) order inspections, including pursuant to a request supported 

by reasons by any interested party, also in collaboration with other State bodies; c) order surveys and 

economic and statistical analyses as well as the consultation of experts in relation to any aspect relevant for 

the purposes of the inquiry. Cf. Article 6(9) of the Code of Public Contracts.



public exchequer. 

It should also be pointed out that the Authority carries out a kind of 

conciliatory role; specifically, on request by the tendering authority or one or 

more of the other parties, it expresses a non binding opinion on issues which 

have arisen during the tender procedures, formulating a proposal for a 

solution. 

The Monitoring Centre for public sector contracts operates under the aegis of 

the Authority, comprised of one central section and of regional sections with 

offices in the regions and the autonomous provinces. The tasks of the 

Monitoring Centre consist principally in the collection and elaboration of 

statistical information relating to public sector contracts and, in particular, 

those concerning tender notices and calls for tender, awards and procurement, 

the tendering companies, the use of manpower and the relative safety 

regulations, the costs and deviations compared to those estimated, the time- 

scale for implementation and the procedures for carrying out the work, as well 

as delays and malfunctions. 

2.4. THE REGULATION OF AWARD PROCEDURES 

The procedures for the award of public-private partnership contracts are 

governed by the Code of Public Contracts. Article 11 specifies in general 

terms the procurement stages, whilst more detailed provisions are contained 

in the regulations governing the individual contracts. 

Before initiating award procedures, it is necessary that the administrations 

make a decision to contract out, identify the essential elements of the contract 

and the selection criteria for economic operators and for bids from those 

provided for by law for the type of contract in question, and go on to carry 

out the tender procedures according to those regulated by the Code. At the



end of this stage a provisional award is made to the best bidder. This bid must 

be verified by the tendering authority which then makes the definitive award. 

The definitive award becomes effective after verification that the tenderer 

satisfies the prerequisites required under the tender in order to conclude the 

contract. 37 On expiry of a period of thirty days after communication to the 

other interested parties of the decision to award, the administration concludes 

the contract. This is however suspended pending the positive outcome of 

approval, where necessary, and any further controls required under the rules 

governing the activity of the awarding bodies. 38 

There are essentially four different procedures for selecting tenderers: 

restricted procedures, open procedures, negotiated procedures – with prior 

publication of the invitation to tender, or with no publication – and 

competitive dialogue, in accordance with the provisions of directive EC 

2004/18. 

Within the so-called special sectors, namely public services relating to: gas, 

electricity and heating, water, transport, postal services, oil and solid fuels, and 

ports and airports, specific regulations contained in Part III of the Code of 

Public Contracts apply; 39 in any case, these are without prejudice to the 

procedures applicable in general terms for the ordinary sectors. 40 

Every PPP contract is then subject to regulations that are tailored to the 

specific nature of its subject matter and the procedures for its implementation. 

In particular, the requirements of publicity or the schedule for the stages 

involving verification and approval of the definitive award may vary 

depending upon the characteristics of the type of contract in question. Thus, 

for example, project financing – governed by Article 153 of the Code – is 

carried out according to a highly complex procedure in which the conclusion 

37 Article 11 of the Code of Public Contracts,legislative decree No. 163 of 12 April 2006. 

38 Article 11(11) of the Code of Public Contracts. 

39 Article 31 of the Code of Public Contracts. 

40 Article 206 et seq of the Code of Public Contracts.



of the concession agreement with the successful tenderer may occur only on 

conclusion of the approval procedures for the preliminary project and 

acceptance of any amendments requested by the public authorities. 

In fact, PPP contracts are generally characterised by a certain procedural 

complexity, a fact which gives scant incentives to use PPP to private 

companies, which fear running up against the (long) time-scales of the public 

authorities, with the possible waste of financial resources. 

2.5. RULES TO PROTECT ACCESS BY SMALL AND MEDIUM SIZED COMPANIES, 

GUARANTEE QUALITY, PROTECT TRADE SECRETS AND REGARDING THE 

PRIVATE PARTNER'S DUTY OF TRANSPARENCY 

The Italian Parliament has not made any efforts to enact specific rules capable 

of guaranteeing the presence of small and medium sized companies within the 

PPP sector. However, it is important to note the provisions contained in 

Article 5(5)(g) of the Code of Public Contracts, which delegate to the 

implementing legislation the provision of incentives intended to lower 

qualification costs – necessary in order to fulfil the individual prerequisites 

required for the award of public contracts – for small and medium sized 

companies. 

As regards the provisions enacted in order to guarantee quality, Article 43 of 

the Code regulates quality certification in general terms. The presentation of 

certificates issued by independent bodies which certify that the economic 

operator has complied with specific quality control requirements is required 

under the regulations governing the individual PPP contracts. To this end, the 

tendering authorities refer to quality assurance systems based on European 

standards in the relevant area. The certifications are considered to be valid 

when they are issued by bodies equivalent to those provided for under



European law. However, the tendering authorities will recognise equivalent 

certificates issued by bodies established in other Member States. In any case, 

the public authorities also accept other evidence submitted by economic 

operators relating to the use of equivalent quality assurance measures. 

As far as the protection of the confidential status of the bids is concerned, the 

first part of the Code contains Article 13, which provides for the exclusion of 

any form of access or disclosures relating: a) to the information provided by 

bidders within the ambit of their bids, including as justification for the same, 

which may constitute technical or commercial secrets, pursuant to a 

declaration of the bidder supported by reasons and containing evidence; b) to 

any further confidential aspects of the bids specified in the regulation; c) to 

legal opinions obtained by subjects that are obliged to apply the Code relating 

to the resolution of disputes, whether potential or in progress, relating to 

public sector contracts; d) to the confidential reports of the director of works 

and the testing body on the questions and reservations of the body 

implementing the contract. 

In the first two situations, access is granted to any tenderer who requests it in 

order to defend in court proceedings its own interests relating to the 

procurement procedures for the contract, within the context of which the 

request for access was made. 

Finally, in cases in which contracts are concluded between the private sector 

partner and third parties, the relative provisions governing publicity apply, 

except where covered by express statutory exceptions regarding specific 

situations.



PART 3 IMPLEMENTATION OF THE PPP 

3.1 THE CLAUSES TYPICAL OF A PPP CONTRACT 

The typical content of PPP contracts is not regulated by law. The Code limits 

itself to the requirement, for public works relating to strategic infrastructures 

or manufacturing plants, that the framework for the contract contain clauses 

intended to regulate the relationship between the tendering authority and the 

company, distinguishing between the relations between the high inspectorate 

and works management and relations between works management and the 

implementing party, with particular reference to: a) the terms for the 

imposition of penalties and provision of opinions; b) the activity 

implementation programme; c) suspension or resumption of works; d) 

charges applicable to the contractor; e) works accounting; f) liquidation of 

payments; g) controls; h) details and procedures for carrying out 

environmental monitoring, including during the post-works stages; i) specific 

procedures and time limits for testing; and l) dispute resolution procedures. 41 

Everyday practice suggests that typical clauses exist for the various types of 

PPP contract. An example of this is the so-called Gain Redemption Clause. 

This clause, which governs relations between the sponsor and the public 

authorities, is frequently used in project financing and consists in the 

provision for the payment of an indemnity to a private promoter where it 

decides not to exercise its right of pre-emption in the event that the winning 

bid is that of a competitor. 

On the other hand, the “return of surplus profits” clause, which obliges the 

private concessionary to transfer to the public administration any profits not 

associated with the acceptance of a risk, is common to various categories of 

contract. Normally, the presence of a clause of this type is accompanied by 

41 See Article 18 and Annex 21 of the Code of Public Contracts.



the provision for accounting controls aimed at avoiding opportunist 

behaviour by the private party. 42 

3.2 OWNERSHIP ARRANGEMENTS 

The law which governs the contracts between the public authorities and the 

private sector shows a general tendency to maintain public ownership over the 

property directly awarded as a concession and over the works for which 

completion is requested. 

Moreover, the same tendency to favour public ownership is also apparent in 

relation to intellectual property rights. Accordingly, Article 99 of the Code of 

Public Contracts provides, in relation to service design contests, that the 

payment of the prize to the winner also constitutes the price paid for the 

purchase of IP rights over the project. A similar rule applies to proposals for 

actions, under the terms of Article 108 of the Code. 

However, in specific cases, where justified by the particular circumstances of 

the case, the possibility of ownership being vested in the private party cannot 

be excluded. 

With reference to public service networks, Article 23-bis(4) of law 133/2008 

specifies that they must remain under public ownership. 

3.3 THE DIVISION OF RISK AND PUBLIC ACCOUNTING RULES 

The division of risk depends on the structure of the interests established by 

the individual PPP contract. In this regard, it must be pointed out that Article 

3(15) of the Code, cited above, expressly provides that the contents of 

42 See M. RICCHI, Finanza di progetto, contributo pubblico, controllo ed equità, in Diritto dell’economia, 2006, 579 set seq.



Eurostat decisions apply to PPP operations. 

In particular, the decision of 11 February 2004 lists three types of risk: the 

construction risk, the availability risk and the demand risk. Therefore, it is 

against the backdrop of an assessment of these risks that the public authorities 

must conclude the agreement with the private sector. 

The construction risk covers events such as delays in the time-scale for 

delivery, cost increases, the failure to comply with project standards, or 

generally technical problems in the works. The acceptance of this type of risk 

by the private party means that public payments not associated with the 

construction conditions for the public works project are not permitted; 

The availability risk reflects the capacity of the concessionary to perform its 

agreed contractual obligations, both in relation to volume as well as quality 

standards. 

Finally, the demand risk concerns demand variations relating to factors 

independent of the quality of the service provided by the infrastructure 

concessionary. 

The division of risk is decisive for the purposes of the inclusion of PPP 

operations within the public accounts. According to the Eurostat decision 

cited above, operations should not be included where there is a substantial 

transfer of risk to the private sector. In particular, this occurs where the latter 

accepts the construction risk and at least one of the other two remaining risks. 

In these cases, the asset relating to the PPP will therefore be off balance. 43 

3.4 CONTROL OVER CONTRACTS CONCLUDED BY THE PRIVATE PARTNER 

The public authorities oblige the private partner that concludes contracts with 

43 See A. GERMANI, Il PPP ed il patto di stabilità europeo, available on the website 

www.utfp.it/docs/pubblicazioni.



third parties to respect the duty to respect the principle of transparency and 

non discrimination on the grounds of nationality. 

More specific rules flowing from the rationale underlying the control over 

contracts concluded by the private partner are laid down by the law with 

regard to the figure of the general contractor. In this case, Parliament ensured 

that it put in place a mechanism for monitoring the different stages of the 

PPP operations, through the prior conclusion of agreements between the 

general contractor and certain bodies specified by the law. In particular, 

Article 176 of the Code of Public Contracts requires the general contractor to 

conclude specific agreements with the bodies with competence over safety as 

well as for the prevention and fight against crime in order to carry out prior 

checks of the works implementation programme in view of the subsequent 

monitoring of all of the implementation stages of the works and the subjects 

which carry these out. These agreements must provide for the adoption of 

“legality protocols” which include specific clauses containing commitments by 

the successful tenderer company to report any attempts at extortion”. The 

failure to abide by this general requirement has consequences for the 

evaluation of the conduct of the successful tenderer for the purposes of the 

subsequent admission to restricted procedures by the same tendering 

authority. 

3.5 UNILATERAL RESOLUTION OF THE PPP CONTRACT 

The Code sets out, as part of the general regulations governing the contractual 

relations between the public authorities and the private sector, the situations 

in which contracts may be rescinded. 

With regard to agreements for the contracting out of public works, there are 

two situations in which the relationship may be resolved. The first is governed



by Article 135 and involves the termination due to the commission of an 

offence or expiry of the certification of qualification. The second is on the 

other hand contemplated by Article 136 and involves the termination due to a 

material breach of contract, serious irregularity or significant delay in the 

implementation of the public works project. 

Public sector contracts may also be terminated as a result of the violation of 

safety plans 44 and in cases involving variations to the project after works have 

commenced that are greater than one fifth of the original amount of the 

contract. 45 In this last case however, the contract is rescinded with a view to 

reopening the award procedures for the new public works project, in which 

also the initial successful tenderer will be invited to participate. 

The person responsible for the procedure notifies the contractor of the 

decision to resolve the contract and orders, with notice of twenty days, the 

director of works to arrange the drafting of a report on the state of 

advancement of the work already carried out, an inventory of materials, 

machinery and plant and the relative takeover, in order to calculate the 

payment due for the work carried out. 46 

After the rescission of the contract and with a view to concluding a new 

contract for the procurement of the operations to complete the work, the 

tendering authorities may contact the subjects which participated in the 

original tender procedures in the order reported in the list of tenderers. 47 

For concessions, a breach of contract by the concessionary body gives 

grounds for terminating the relationship. In the same way, the concession may 

also be resolved where it is in the public interest. In this case, the 

concessionary must be reimbursed for the value of the work carried out plus 

ancillary costs, penalty payments and any other costs incurred or which may 


45 Article 132(4) of the Code of Public Contracts. 

46 Article 138(1). 

47 Article 140(1) of the Code of Public Contracts.



thereafter be incurred as a result of the rescission. Moreover, an indemnity 

payment must be made as compensation for the loss of profit, set by the law 

at 10% of the value of the works still to be carried out or of the part of the 

service still to be managed on the basis of the business plan. The withdrawal 

of the concession will only be effective if these sums have been paid by the 

grantor. 48 

In cases in which the concessionary relationship is terminated on grounds for 

which the concessionary is responsible, the bodies financing the project may 

block the resolution, designating a company which may take over the 

concession in place of the concessionary. A condition for acceptance of the 

replacement by the grantor is that the company designated by the financing 

bodies have technical and financial characteristics that are substantially 

equivalent to those possessed by the concessionary at the time when the 

concession was awarded, and provided that the default by the concessionary 

which would have resulted in the resolution does not cease before the expiry 

of the time limit set by law for the selection procedures for the replacement 

concessionary. 49 

PART 4 DISPUTES 

4.1 DISPUTES RELATING TO PPP 

From the point of view of the possible disputes between the public authority 

and the private party, it should be pointed out first and foremost that the 

forms of PPP for administrative action fall in toto under the general provisions 

stipulated for public sector contracts. In general terms, these provisions 

display a distinct preference for the out-of-court resolution of disputes, 


49 Article 159 of the Code of Public Contracts.



through settlements or arbitration procedures, in order to limit the recourse to 

judicial remedies. On the other hand, these procedures are characterised in the 

first place by the exclusive jurisdiction of the administrative courts over all 

disputes relating to procurement procedures, in those which seek to identify 

the partner for institutional PPP and those relating to the implementation of 

specific contractual clauses agreed to by the public administration with the 

private party, such as those regulating price revisions. 

The jurisdiction of the administrative courts makes it easy to draw a 

distinction between the provisions regulating PPP contracts – and public 

sector contracts more generally – from those relating to disputes regarding 

transactions between private parties. 50 From this perspective, it appears to be 

much more similar to the arrangements governing traditional acts of the 

public authorities rather than those for relations governed by private law; this 

fact is confirmed by the fact that it is possible, as an alternative to seeking a 

remedy before the courts, to make an extraordinary petition to the President 

of the Republic, as provided for under Article 245 of the Code of Public 

Contracts. In particular, the special provisions contained under Article 246 

governing proceedings before the courts relating to public sector contracts 

aim simply to adjust the provisions governing administrative disputes to the 

special requirements of the area of law concerned, without prejudice however 

to the general arrangements of administrative law. 

On the other hand, interim remedies should be considered separately. Within 

this context, the plaintiff is granted a special action in cases of “exceptional 

seriousness and urgency”, 51 through which it may file an application for the 

adoption of interim and provisional measures, on which the court competent 

over the merits of the question rules after having heard the parties. 

50 The academic literature had underscored the need to prepare an ad hoc regulation of disputes relating to 

PPP. On project financing, see M. LIPARI, Project financing: la tutela giurisdizionale, in G.F. FERRARI, F. 

FRACCHIA (eds.), Project financing e opere pubbliche: problemi e prospettive alla luce delle recenti riforme, cit. 88 et seq. 

51 Article 245(3) of the Code of Public Contracts.



The Code does not however make any provision for advance protection 

against acts by the authorities other than the final measure (the award), which 

may also prove to be detrimental to the legitimate interests of subjects which 

have participated in the tender procedures for the award of a concession or 

for the choice of the private partner by a joint enterprise. 

The question is particularly significant with reference to operations with the 

complexity of project financing, in which a succession of distinct 

administrative acts occurs, although they are uniform with regard to the goals 

pursued, namely the achievement of a result which serves a public interest. In 

these situations, the specification of the decision which may be challenged as 

the last measure adopted on conclusion of the procedural steps may be 

detrimental to the protection requirements of the interested parties.

COMPARATIVE REGULATION OF CORPORATE TAX AVOIDANCE 

_______________________________________________ 

QUESTIONNAIRE 

CARLO GARBARINO * 

This report considers and compares the ways in which sovereign nations 

define and regulate corporate tax avoidance. In particular, it addresses (a) the 

source of the power to regulate corporate tax avoidance (i.e., whether the 

legislature, the judiciary, or the administrative or executive branch determines 

what constitutes tax avoidance) and (b) it examines the strategies chosen to 

discourage, limit, or otherwise regulate these types of transactions (i.e., the 

manner in which a country combats tax avoidance). 

Of critical importance is the definition of corporate tax avoidance. In a 

recent article, Professor John Prebble, of Australia, details three related, but 

disparate, phenomena: tax mitigation, tax avoidance, and tax evasion. For 

example, a taxpayer who delays selling an asset in order to take advantage of a 

capital gains tax reduction (available only if the asset is held for a prescribed 

period of time) is engaged in tax mitigation. On the other end of the spectrum is 

tax evasion. Tax evasion involves attempts by a taxpayer to reduce its tax liability 

by fraud, misrepresentation, or concealment of the true facts. For example, a 

taxpayer that hides assets in offshore bank accounts in an attempt to conceal 

investment income (and escape home country taxation) is engaged in attempted 

tax evasion. Misrepresentation of one‟s status as a non-resident in order to 

obtain a tax advantage constitutes attempted tax evasion. Tax evasion may be 

punishable by criminal sanctions, including monetary penalties and 

imprisonment. 

Tax avoidance – which is the subject of Topic IV.E. – rests between 

mitigation and attempted evasion. Tax avoidance involves arrangement of a 

transaction in order to obtain a tax advantage, benefit, or reduction in a manner 

unintended by the tax law. For example, a transfer of contingent liabilities to a 

subsidiary in order to artificially increase the amount of deductible loss upon sale 

of the subsidiary‟s stock by the parent (creating a substantial capital loss that 

would reduce capital gains tax of the parent arising from unrelated sales) has 

been treated as tax avoidance (unintended use of corporate tax rules to 

manufacture a loss). This category of transactions includes certain tax avoidance 

techniques known as “tax shelters.” Tax shelters include certain especially 

* Carlo Garbarino is Professor of Taxation Law at Bocconi University



abusive tax-avoidance transactions which are often marketed (or promoted) by 

financial or other tax advisers to a group of corporations who have a particular 

need for a tax-reducing strategy. 

In your report of the Regulation of Corporate Tax Avoidance for your 

country, please include your responses to the following.

Carlo Garbarino 

Comparative Regulation of Corporate Tax Avoidance 

I. Please describe the legal system of the reported country (common law, 

civil law or other). Is there separation of the three traditional powers – 

judicial, legislative, and executive? 

A. Describe the position of tax law within the larger legal system. 

Which branch or body enacts or promulgates tax laws? What is the 

process for revising tax laws? How frequently are tax laws revised? 

The Italian legal system a can be qualified as a civil law system heavily influenced 

by Roman Law, the Napoleonic codification experience as well as the doctrinal 

influence of German speaking legal tradition (either due to the prestige 

traditionally exerted by German legal scholarship or by the close contacts and – 

in some areas of Italy – legacy – of the Austrian Legislation). In recent years, 

some typically common law-backed legal concepts and tools, such as trusts, have 

made their way into the Italian legislation, scholarly debate b and, in particular, 

practice, even though, benefitting from the applicability of the 1985 The Hague 

Convention on the Law Applicable to Trusts and on their Recognition, parties 

often opt for English Law to regulate a trust. 

Tax law is part of the broader Italian legal system as a special branch 

thereof, even though defining partitions within a system is an intellectual exercise 

often prone to some degree of nominalism. In this respect, in order to determine 

the boundaries of tax law within the broader Italian legal system and to highlight 

possible interconnections of tax law with other areas of law belonging to the 

Italian legal system, we will adopt a functional bottom up approach instead of a 

top down one. 

On the grounds of the intrinsic unity and indivisibility of any legal system, 

where autonomy of different branches of law is to be seen as a scientific 

taxonomy rather than an ontological one c , tax law can be said to stand at the 

crossroads of public law and private law from a functional point of view, while 

its substantial core, as well as its boundaries are to be found in the notion of tax. 

Bearing in mind the Hartian perspective, according to which we are in the 

presence of a legal system, and not of a mere aggregate, only when there is a 

union of primary and secondary rules, we may therefore hold that tax law is 

almost a legal system within the system and not a mere aggregate as it is provided 

a For a comprehensive introductory reading in English to the Italian legal system, reference could well be made to 

J.S. LENA, U. MATTEI (Eds.), Introduction to Italian Law, Zuidpoolsingel, 2002. 

b In this respect, it is quite curious to remark the existence of a domestic law review, written in Italian, titled 

“Trust”. 

c P. DE BARROS CARVALHO, Curso de direito tributário, São Paulo, 2008, 14.



with specific primary and secondary rules, even though, while primary tax rules 

are typically self contained, secondary tax rules are often shared with or 

borrowed from other areas of the broader Italian legal system. 

In this latter respect, reference should be made to the current version of 

Art. 2 of Legislative Decree No. 546/2002 where the contours of tax jurisdiction 

are defined as “all controversies concerning taxes (“tributi”) of every kind, regardless of their 

definition, including those imposed by Regions, Provinces and Municipalities as well as the 

National Health System charges, including surcharges, the monetary sanctions inflicted by the 

Tax Authorities, as well as interests and any other additional payment” as well as “any 

payment exacted for the occupation of public areas, the charges for the clearing and depuration of 

refluent water, the charges for the disposal of waste, the municipal charges on advertisements and 

placarding”. Such a general and all-encompassing definition represents an 

evolution from the casuistic approach adopted by the same provision before the 

tax jurisdiction reform introduced with the 2002 Budget Law. 

On the grounds of traditional tax doctrine d , the notion of “tributo” 

encompasses any form of taxation and contains, in particular, the three following 

categories: 

� taxes (“imposte”): a form of fiscal charging that is not directly linked to 

the supply of any specific public service and where the burden originating 

therefrom is solely based on ability to pay indicators; 

� duties (“tasse”): a form of fiscal charging that is directly linked to the 

supply of specific public services, even though such services may not be 

necessarily supplied to the benefit of a specific tax payer (e.g., court trial 

duties); 

� charges (“contributi”): a form of fiscal charging requited to the supply of a 

specific public service which however differs from a duty (“tassa”) on the 

grounds of a different source of the obligation to pay and which, unlike a 

fee (“corrispettivo”), is typically made legally compulsory. 

While the distinction between taxes and duties is perceived as sharp and 

widely used in the Continental tradition, it is not as regularly observed in English 

– speaking context, being the two categories generally referred to as “taxes” (the 

Italian equivalent would be “tributi”). On the contrary, the distinction between 

taxes and charges is commonly held also in the English – speaking literature. 

A further common theoretical distinction, although held in lesser regard 

by current literature than in the past is that between a direct tax and an indirect 

tax: “A direct tax is one which is demanded from the very persons who it is intended or desired 

d On the tax taxonomy traditionally endorsed in Italy, although sometimes with some degree of criticism, see 

A.D. GIANNINI, I concetti fondamentali del diritto tributario, Torino, 1956, 1.



should pay it. Indirect taxes are those which are demanded from one person in the expectation 

and intention that he shall indemnify himself at the expense of another.” e 

There is actually no universally accepted classification of taxes, and any 

classification is functional to the purpose for which the classification has been 

made. One of most widely used one is that drafted by the OECD, based on the 

nature of the taxable base. 

As earlier mentioned, although tax law has distinct boundaries ratione 

materiae within the Italian legal system and revolves around a specific conceptual 

core, in its functional articulation, tax law features relevant links and references to 

other areas of law, both private and public. 

First of all, there are inevitable overlaps with Constitutional Law, as the 

Italian Constitution foresees provisions specifically dealing with taxation matters. 

Art. 3 of the Italian Constitution states the general principle of equality. All 

citizens (all citizens in their vest of taxpayers, it may be read, for our purposes) 

are equal before the law, without regard to their sex, race, language, religion, 

political opinions and personal and social conditions. 

With reference to religious freedom, Art. 20 of the Italian Constitution 

foresees that “For associations or institutions, their religious character or religious or 

confessional aims do not justify special limitations or fiscal burdens regarding their 

establishment, legal capacity, or activities.” 

A key issue to the discussion of the introduction of an “abuse of rights” nonwritten 

judge made clause, which will be developed further on in this work, is to 

be found in the legality principle, enshrined in Art. 23 of the Italian Constitution, 

which, similarly to the “no taxation without representation” slogan, establishes that 

personal or patrimonial obligations can be imposed only if established by Law. 

Art. 53 of the Italian Constitution extends the principle of equality to tax 

matters by introducing the public finance – derived concept of “ability to pay” as 

well as endorsing the principle of progressive taxation so that “ 1) Everyone has to 

contribute to public expenditure in proportion to their ability to pay. 2) The tax system has to 

conform to the principle of progression”. On the grounds of these fundamental 

constitutional provisions, the Italian Constitutional Court has issued a copious 

number of judgments whose outline and assessment, even in summary terms, 

would however probably fall outside of the scope of this work f . 

With respect to the dialectics between the taxpayer and Tax Authorities, 

which represents a branch of the Public Administration, as well as the concrete 

e J. S. MILL, Principles of Political Economy, II, London, 1871, 415. 

f An introductory reading in this respect may be G. MARONGIU, I fondamenti costituzionali dell’imposizione tributaria, 

Torino, 1991.



implementation of taxing rules, tax law makes abundant use of the conceptual 

and legal tools typically ascribed to administrative law. 

The assessment and classification of transactions and behaviors put into 

place by taxpayers and which constitute the source of any tax obligation is heavily 

influenced by private law and, with particular respect to corporate income tax 

issues, by company law. 

The jurisdictional dimension of tax law is heavily indebted to civil 

procedural law, as specific rules concerning detailed aspects of tax proceedings 

and hearings are often lacking or simply reproduce or refer to the general civil 

procedure framework. 

With respect to the infliction of penalties, where particularly serious tax 

offenses are perpetrated, sanctions often acquire a criminal character, so that 

criminal law is also called into question when implementing tax laws. 

With reference to the international and supranational dimension of tax 

law, a scholarly distinction is usually made between “diritto internazionale tributario”, 

which basically overlaps with tax treaty law and which could to some extent 

almost be qualified as a “self-contained regime” g within public international law at 

large and “diritto tributario internazionale” which consists in the number of those 

domestic tax provisions which deal with cross-border situations. 

Moreover, being Italy an EU Member State, its tax system has been 

increasingly shaped by Community Law. This applies both to the implementation 

of European secondary law (e.g., the implementation of VAT Directives as well 

of the European Directives introducing specific regimes within the context of 

income taxation) and to the often groundbreaking effects on Member States‟ tax 

system exerted by the case law of the European Court of Justice. 

Italy adopts separation of powers between the judiciary, the legislative and 

the executive powers, with legislative power awarded to the Parliament, 

composed of a House of Deputies and a Senate. Nonetheless, under some 

circumstances and within the context of peculiar lawmaking techniques, the 

Italian Constitution h awards the competence to legislate, that is, to issue acts 

having the same powers of a law, also to the Government. 

g The term self contained regime has developed in the case law of the International Court of Justice and, in 

particular, its first mention dates back to the Tehran Hostage Crisis Case in 1980. International lawyers usually 

refer to self contained regimes as a threat to international law at large, as they would lead to fragmentation. It 

appears however that there is very little literature on international tax law as a self contained regime in 

international public law. Within the tax scholarship community the thesis according to which international tax 

belongs, first of all, to international law is convincingly outlined by Professor Avi Yonah in its International Tax As 

International Law. An Analysis of the International Tax Regime, Cambridge, 2007. 

h In particular, Art. 76 and 77 of the Italian Constitution.



Art. 76 of the Constitution foresees that the Parliament can delegate its 

legislative power to the Government, which, in turn is provided with the power 

to issue a so-called legislative decree. The legislative decree is a legislative tool 

that is often deployed in tax matters and, in general, in all those matters where a 

strong technical content is present. 

Art. 77 of the Constitution provides the awarding to the Government of a 

special type of legislative power, to be exerted in case of necessity and urgency 

and which translates in the issuing of a “law decree”. A law decree must be 

submitted to the Parliament, which has to convert the law decree into a law 

within sixty days from its issuance, otherwise the law decree will be deprived of 

its effects. This legislative instrument is also frequently deployed in tax law 

matters. 

Besides actual legislative power, the Government can also exert normative 

power by issuing legal instruments that do not have the same power of a law, 

such as ministerial decrees. Within the context of tax legislation, ministerial 

decrees are the instrument of choice for providing the legislative package of a tax 

measure with the related procedural rules as well as other implementation details. 

Based on the interpretation of Art. 23 of the Italian Constitution, which sets 

forth a legality principle with respect to the imposing of taxes, in no case could a 

ministerial decree be used to introduce a new tax or as the legal instrument of 

containing the core substantive rules governing a tax measure. 

Moreover, Law No. 212/2002 which contains the “Taxpayer’s Bill of Rights” 

and which provides a framework applicable to any area of Italian tax legislation i , 

according to which the introduction of new taxes or the extension of the 

personal scope of application of a tax cannot be achieved by issuing a law decree. 

The revision of tax laws is almost a constant work in progress in Italy, as 

the annual Budget Law often represents the chance to intervene on public 

revenues by amending some aspects of the existing tax laws. An example of how 

Budget Laws offer the opportunity for overturning existing provisions dates back 

to the Budget Law for 2008, where thin capitalization rules were discarded in 

favor of an earning stripping provision akin to that introduced in the previous 

years in Germany j . 

At the same time, organic reforms of the tax system are much less 

frequent. The last one dates back to 2004, when the Income Tax Code was 

significantly modified and renumbered and a new corporate income tax was 

introduced. The 2004 tax reform would have been an excellent field of study for 

i The scope of Application of this legislative instrument is provided by its Art. 1 

j



comparative lawyers, as many tax models from the US and from other European 

Countries circulated to the point of being transplanted into the Italian tax 

jurisdiction: this the case of the participation exemption rule, the fiscal unit rule 

(both domestic and worldwide) as well of the now defunct thin – capitalization 

rule. 

B. Detail enforcement of the tax laws. Which branch or body is 

responsible for enforcement? Does the legal system provide for 

self-assessment (i.e., by the taxpayer who files an annual tax return) 

of tax liability? If not, how is tax liability determined? 

The enforcement and administration of tax laws lies, with particular respect to 

income taxation and indirect taxes, among the prerogatives a public Agency 

originally carved out of the Ministry of Economy and Finance on the grounds of 

Legislative Decree 300/99 in a process of administrative re-organisation, namely 

the Inland Revenue Agency (“Agenzia delle Entrate”, hereinafter I.R.A). The I.R.A. 

has its headquarters in Rome and relies on the coordination of regional 

directorates over the activities of local offices evenly distributed on the Italian 

Territory. 

The Italian Tax Authorities can also rely on a special Tax Police (“Guardia 

di Finanza”), which, as well as being a fully fledged military corps, shares the 

same administrative powers and duties of the I.R.A.. 

The collection of taxes has now been “outsourced” to a company which is 

controlled by the I.R.A., “Equitalia S.p.A.”. 

The Italian Tax System can be ascribed to a mass taxation system. Thus, it 

implies co-operation between taxpayers and Tax Authorities and practically relies 

on a self-assessment by the taxpayers, who are expected to file annual tax returns 

and determine their tax liability. 

Nonetheless, the I.R.A. as well as the Tax Police can conduct tax audits in 

order to ascertain that taxpayers have determined their tax obligations correctly 

and that no tax offenses have been put into place. 

Tax audits are regulated by very strict procedural rules. Tax inspectors can 

carry out accesses, inspections and verifications attaining their conduct to specific 

procedural guarantees. Information can also be drawn by the tax anagraphic 

database in their possession or by submitting questionnaires to the taxpayers as 

well as to third parties. 

A very powerful instrument for conducting tax audits is the examination



of information held by banks, which is allowed, even though it has to be 

exercised within the boundaries of pre-defined procedural rules. 

As a general rule for income taxes, each fiscal year can be the object of a 

tax assessment by Tax Authorities only within the 31 st December of the fourth 

year following the year when the relevant tax return was submitted. 

Tax Authorities select lists of taxpayers who, on the grounds of specific 

criteria and risk assessment in adherence to guidelines issued yearly by the 

Ministry of Economy and Finance, may be possible candidates of a tax 

inspection. 

1. Describe in detail the manner in which tax controversies 

begin. Where, when, and how are they adjudicated? 

2. Are tax controversies decided by a legislative, administrative, 

or judicial body? Please describe from start to finish the 

manner in which a tax controversy reaches a final 

determination or decision. 

Tax controversies are decided by a judicial bodies, in particular, by special tax 

Courts. Such an institutional lay out is a direct consequence of Art. 24 of the 

Italian Constitution, according to which “Everyone may bring cases before a Court in 

order to protect his rights under civil and administrative law”, thus establishing the 

inviolable nature of the right of defense at every instance of adjudication. In the 

Italian system three instances of adjudication are foreseen. 

The first tier tax Courts are distributed on the grounds of a territorial 

criterion, on for every Italian province. Within each provincial first tier tax Court 

(“Commissione tributaria provinciale”) it is possible to find different chambers. 

Different chambers are however equal in terms of competence as no 

specialization ratione materiae is foreseen at a first tier level. 

Tax controversies are always triggered by the taxpayer, who is entitled to 

refer to Court by challenging one of the following notices or decisions issued by 

Tax Authorities: 

� a tax assessment notice; 

� a tax payment notice; 

� a tax penalties notice; 

� a tax roll; 

� a tax levy; 

� an arrears notice;



� deeds concerning the property Register; 

� the (express or tacit) refusal of tax and undue tax penalties refunds; 

� the refusal or the repeal of tax allowances; 

� the refusal of request for tax agreements; 

� any other deed with reference to which a separate challenge before tax 

Courts is foreseen by Law. 

It should be remarked with respect to the above listed deeds that Art. 7 of 

the Taxpayer‟s Bill of Rights establishes that any tax assessment notice issued by 

Tax Authorities should be properly motivated, otherwise it is invalid. Along with 

the motivation, the tax assessment notice must always state the amount of the 

assessed taxable base, the applied tax rates, the settled amount of the tax, the 

competent unit within the Tax Administration and the contact details of the 

person to whom the taxpayer may refer to in order to obtain clarifications. Such 

rules are directly linked to the right of defense of the taxpayer who needs to be 

provided with this basic information so that he can assess whether and how to 

challenge the deed. 

As a general rule, the challenge should be performed within sixty days 

from the notification of the deed that the taxpayer intends to challenge, although 

longer terms apply with respect to specific types of challenges, such as, for 

instance, the challenge of the silent denial of a reimbursement opposed by Tax 

Authorities. 

The challenge is preliminarily examined by the Chairman of the Section of 

the competent Tax Court and whereas the challenge features some causes of 

inadmissibility, the judicial procedure is not started. 

Besides challenging a given deed, the taxpayer should also notify the 

competent Tax Court of its intention to start a proceeding. This notification 

should be performed within sixty days from the challenge of the concerned deed 

of the Tax Authorities. 

Taxpayers must be assisted by a qualified tax attorney, who may be a 

lawyer or a certified public accountant in the first two levels of judgment, while a 

lawyer admitted to plead before the Court of Cassation is needed for the third 

and last level of judgement. 

Once the date of the hearing has been determined by the Secretariat of the 

Court, the parties can submit documentation up to twenty days before the 

hearing as well as opinions up to ten days before the hearing. 

The final outcome of a proceeding is a decision, which should be made 

available within thirty days from the date of the hearing. 

According to Art. 15 of Legislative Decree No. 546/1992, legal expenses



should be borne by the losing party. Nonetheless, the Tax Court may in some 

case decide expenses to be partially or totally split between the parties and this 

circumstance occurs quite frequently, even though, as it will be illustrated in the 

following sections, such a practice should be looked upon with disfavor. 

Both the taxpayer and the Tax Authorities can appeal the decision of a 

first tier Provincial Tax Court by resorting to the corresponding second tier 

Regional Tax Courts. As the name suggests, second tier regional tax Courts are 

also established on the basis of a territorial criterion, one for each Italian Region. 

The decisions of the second tier regional tax Courts can in turn be 

appealed by resorting to the Italian Court of Cassation, which currently features a 

Tax Chamber. Before 1992, a Central Tax Court was foreseen instead, serving 

the purpose of tax court of last resort. 

The decision of the tax Chamber of the Court of Cassation only revolves 

around the strictly juridical terms of a dispute, while a factual re-assessment of 

the controversy is not foreseen. 

3. Do special courts or administrative bodies handle tax 

controversies? Please describe these in detail. 

The judicial system dealing with tax law relies on special courts, whose 

competence is limited, ratione materiae, to taxes of every kind and form, regardless 

of their denomination. In this respect, the only controversies that may involve a 

person in its qualification as a taxpayer but which fall outside of the jurisdictional 

scope of tax courts are those dealing with insolvency proceedings subsequent to 

formal payment notices issued by Tax Authorities, which are dealt with by 

ordinary Courts. 

The first two tiers of judgement are handled by provincial and regional 

Tax Courts, respectively, whose jurisdiction is defined by sub-national territorial 

boundaries such as the Provinces and the Regions, being the relevant factor for 

the attribution of the territorial competence to be found in the location of the 

Tax Administration unit which issued the deed challenged by the taxpayer. 

The issue of the incompetence of a given tax court can be raised only 

before that very court and cannot be challenged before other courts, even of 

higher rank. 

The Court of last instance, dealing exclusively with the juridical aspects of 

the dispute and not with factual reconstructions, is to be found in a Tax 

Chamber of the Italian Court of Cassation, which has replaced the original



Central Tax Court of last instance, foreseen until 1992. In this respect, the 

position and function of the Court of Cassation in the Italian court system is 

particularly important, as its decisions are binding on lower courts, which are 

obliged to implement them when the case is remitted to them after the decision 

(so called “giudizio di rinvio”). 

4. What is the standard of review in tax controversies? Do 

taxpayers bear the burden of proof? What amount of 

deference does the reviewing body afford determinations of 

the branch, body, or agency (e.g., Internal Revenue Service, 

Inland Revenue, etc.) enforcing the tax laws? 

When dealing with procedural aspect of tax adjudication, it should be anticipated 

that rules on fair trial are directly enshrined in the Italian Constitution and, in 

particular, under Art. 111, according to which “Justice must be administered by fair 

trials defined by Law” and “Trials are based on equal confrontation of the parties before an 

independent and impartial judge. The law has to define reasonable time limits for the 

proceedings”. 

As anticipated, tax proceedings are based on an inquiry in two stages 

before the Tax Courts and of a legitimacy review before a Tax Chamber of the 

Court of Cassation. 

In the first instance of adjudication, the competent Provincial Tax Court 

considers appeals against deeds issued by Tax Authorities. Second tier Regional 

Tax Courts consider appeals against decisions of the Provincial Tax Courts 

whose premises are in their administrative district. 

The standard of review is low with respect to the first two tiers of 

judgment, as the Regional Tax Court can basically overturn, also from the factual 

reconstruction point of view, the decision of the lower Provincial Tax Court. On 

the contrary, the standard of review appears being higher with respect to the 

relationships between Regional Tax Courts and the Court of Cassation, as the 

latter is not expected to re-define the factual assessment of the controversy but 

its judgment is strictly limited to the legal qualifications of the controversy. 

The issue of the deference of jurisdictional reviewing bodies vis – à –vis the 

articulations of the Tax Administration entitled to enforce tax laws is strictly 

linked to the issue of the burden of proof, its shifting and the array of proofs 

admissible within the context of tax proceedings. 

The principle of the burden of proof finds its foundation in the Italian



legal system in Art. 2697 of the Civil Code, “The party who wishes to assert a right 

before a Court is to provide evidence of the facts on which the right is founded. The party 

objecting that such facts are not effective, or that the right has changed or expired is to provide 

evidence of the facts on which the objection is founded.” 

Whether the principle of the burden of proof applied also to tax 

proceedings was one of the first problems the Italian tax scholarship had to deal 

with k . 

Nonetheless, it is generally accepted that such principle is one of the 

constituting elements of our legal tradition and applies to any kind of judicial 

proceeding, including tax proceedings. At the same time, while the existence of 

the principle is not denied, a procedural rule of general import concerning how 

the burden of proof should be allocated between the taxpayer and Tax 

Authorities is not to be found in any statute or regulation. 

The circumstance that it is always the taxpayer who starts a proceeding by 

challenging an deed issued by Tax Authorities does not imply per se that the 

burden of proof inevitably lies on the taxpayer, even though this latter situation 

frequently occurs. In this respect, even though the taxpayer is always the formal 

plaintiff, it may not actually play this role from a substantive point of view to the 

extent that the burden of proof may lie on the latter; this may typically be the 

case when the proceeding is triggered by the challenge of a tax roll or of a tax 

levy as, in this case, it is the Tax Administration that is asserting its right to 

collect taxes l . 

The supply of proofs in tax proceeding is limited by specific rules. In 

particular, it should be remarked that within a tax proceeding, witnesses and 

omens are not admitted as proofs. On the other hand, tax judges are entrusted 

with enquiring prerogatives. 

With reference to the issue of the degree of deference that Tax Courts 

award to the Tax Administration a historical overview should be provided. For 

many years, up to the late Seventies, a thesis emphasizing such deference 

prevailed, centered upon the so-called “presunzione di legittimità dell’atto impositivo”, 

i.e., a general presumption of the validity of tax assessments. Such presumption 

implied that the burden of proof always concerned the taxpayer, as the matters of 

facts that had led to the issuing of a tax assessment notice where deemed to be 

already satisfactorily proved by the Tax Authorities. However, such a conceptual 

k For a review of the doctrinal developments on this issue, see R. LUPI, “L‟onere della prova nella dialettica del 

giudizio sul fatto”, (1993) 1 Riv. dir. trib., 1212. 

l Pro see, in legal scholarship, AA. VV., La riforma del processo tributario, Milano, 1996, 50 and, in case law, Court of 

Cassation, Decision No. 2221/1989.



scheme, somewhat inspired by the administrative law scholarships was in fact 

rebuked by a series of decisions of the Court of Cassation m . 

II. Detail the manner in which the reported country describes the terms “tax 

mitigation” , “tax avoidance,” and “tax evasion.” Please provide an 

example or examples of each. If there is no such concept in the tax law, 

please explain. 

It is usually held that a basic distinction should be operated between the 

economic analysis of corporate tax burden minimizing behaviors and of their 

juridical qualifications, as, while the former aspect allows us to draw some general 

conclusions and conceptual schemes applicable under a great variety of 

circumstances, on the other hand, the juridical qualification of such phenomena 

has remained among the most country-specific aspects of national tax 

jurisdictions. 

From an economic analysis perspective, the situation is rather clearcut. It 

is possible to make reference to the conceptual categories of “tax minimization”. 

“Tax minimization” is defined in economic literature as the behavior 

aiming at the reduction of explicit taxes so to maximize after – tax – returns, 

without however considering other dimensions n . Such an approach is frequent 

among tax practitioners, who often, pursue the reduction of effective tax rates as 

a the key strategic goal, without paying specific attention to other non – tax costs 

potentially related thereto. A more sophisticated and upgraded version of mere 

“tax minimization” is defined as “effective tax planning”, i.e., a strategic outlook which 

encompasses not only explicit taxes but also implicit taxation as well as non – tax 

costs o , such as direct costs, the cost of risk, the risk of sanctions, disclosure 

costs, and agency costs p . 

On the other hand, from a juridical viewpoint, the way lawmakers, 

enforcement authorities and courts address the subject of tax minimizing 

behaviors appears as more intricate and conditioned by the national peculiarities 

of each tax legislation. Apart from phenomena related to the “circulation of tax 

m See, in particular, Decision No. 2990/1979, where the Court clearly dismissed the presumption of legitimacy of 

the acts issued by the Tax Authorities, thus implying that the Tax Authorities had to prove the factual 

reconstruction at the basis of the challenged act. 

n M.S. SCHOLES ET AL., Taxes and Business Strategy: A Planning Approach, III Edition, Upper Saddle River, 2005, 

544. 

o See ibid. 

p For a development of these aspects and their interrelation with corporate tax governance, see C. GARBARINO, 

„Aggressive Tax Strategies and Corporate Tax Governance‟: An Institutional Approach‟, SDA Bocconi Research 

Paper No. 188/08, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1428772.



models” and of “tax transplants”, a tri-partite approach to the problem is generally 

observed, despite specific denominations. In particular, there is a first clearcut 

distinction between legal tax behaviors and illegal ones. Moreover, among legal 

tax behaviors that allow to opt for the less fiscally burdensome option, a line is 

frequently drawn between those behaviors that are tolerated and those behaviors 

that are frowned upon and, due to revenue, administrative and, not infrequently, 

cultural reasons are eventually seen as tantamount to illegal tax behaviors. These 

three categories are typically labeled as “tax evasion”, “tax mitigation”/”tax saving” 

and “avoidance”. 

The Italian Tax jurisdiction is no exception in embracing this tripartite 

taxonomy, even though, actual legislative and administrative definitions of these 

three distinct behaviors is often lacking; nonetheless, these concepts are widely 

referred to in case law, administrative practice and, in particular, legal scholarship. 

As a matter of fact, further developments in Italian legislation which 

subsequently led to the enactment of provisions tantamount to a general antiavoidance 

rule (hereinafter, “G.A.A.R.”) in the 1990s were highly influenced by 

the academic definition of “tax avoidance”, differently from the US and the UK 

experiences, where tax avoidance has emerged as an “industry” within the context 

of tax legal practice rather than as a concept. 

Namely, the setting of a theoretical framework for defining and identifying 

tax avoidance was developed by legal scholars (both German and Italian) in the 

Thirties and predates by far explicit normative references on the point. 

The most concise and vivid definition of tax avoidance is probably the one 

set forth by the Italian - German scholar Albert Hensel, according to whom, tax 

avoidance takes place “whereas interpretation comes to an end” q . The underlying 

assumption to this definition is that any tax avoiding behavior may be countered 

by an adequately extensive interpretation of the applicable tax laws (so called 

“interpretazione antielusiva”). In this respect, tax avoidance can prosper whereas a 

formalistic and literal interpretation is endorsed, since tax avoidance can be 

defined as a form of tax saving achieved by privileging (legal) form at the 

detriment of (economic) substance in interpreting tax laws. 

At a scholarly level, a generally agreed working definition of tax avoidance 

could be summarized in the following elements (which are analytically mirrored 

also by the current G.A.A.R., Art. 37 – bis of Presidential Decree No.600/1973) 

so that tax avoidance can be detected when the following simultaneously take 

place: 

q A. HENSEL, Zur Dogmatik des Begriffs Steuerumgebung, in ID. (Ed.) Festgabe der Bonner Juristenfacultät für E. Zitelmann, 

München, 1923, 244



� “tax saving”; 

� lack of “valid business purpose”; 

� use of “abnormal legal arrangements”; 

� “specific intent”. 

Vis – à – vis such a conceptual background, no general anti-avoidance rule 

existed in the Italian tax system until 1990, when with Law No. 408/1990 an 

explicit anti-avoidance clause, although not of general import, was first 

introduced r . The scope of application of such norm was broadened with the 

insertion of Art. 37 – bis into Presidential Decree No. 600/1973, which took 

place in 1997. 

In particular, Art. 37-bis of Presidential Decree No. 600/73 provides that 

Tax Authorities may disregard single or connected acts, facts and transactions: 

� intended to circumvent obligations or limitations provided under tax law; 

and 

� intended to obtain tax savings or refunds otherwise undue; 

� lacking a sound business purpose. 

Such anti-avoidance provision is applicable provided that such acts, facts 

or transactions include at least one of the seventeen transactions enlisted under 

Para. 2 of the aforementioned provision. As it will be outlined hereinafter, the list 

thereby encompassed is so broad that it somewhat transcends a mere numerus 

clausus, to the extent that, as anticipated, Art. 37 – bis of Presidential Decree No. 

600/1973 can be considered a G.A.A.R.. 

For exemplification purposes, reference could well be made to the Rulings 

issued by Tax Authorities that have labeled some specific transactions as tax 

avoiding. The list would be overly long; however, a few reoccurring cases can be 

mentioned. As Art. 37 – bis of Presidential Decree No. 600/1973 finds 

application, inter alia, with respect to corporate reorganizations, a reoccurring tax 

avoiding scheme centered around real estate demergers followed by a sale of the 

shares of the beneficiary company. In these cases, the demerger has often been 

considered by Tax Authorities simply as a mean to carve out some assets or a 

portion of the company in order to ease their subsequent alienation by 

benefitting from the tax regime of the sale of shares, which is usually more 

favourable than the tax regime applicable to a sale of assets 

With respect to tax evasion, that is a general concept encompassing a wide 

variety of different forms of tax offenses, which can trigger administrative 

sanctions (including interests for delayed payments, that basically have a 

r F. PAPARELLA, „Riflessioni in margine all‟art. 10 della Legge 1990, n. 408, relativo alla ristrutturazione delle 

imprese‟, (1995) 6 Dir. prat. trib., 1835.



restitutory nature) and criminal sanctions. The very notion of tax evasion as a 

general category thus finds no reference in the wording of any specific national 

provision, but, at a domestic level, it is rather the result of doctrinal 

categorizations s . On the other hand, frequent reference is made to the wording 

“tax evasion” in double tax treaties, that are normally titled as “ Convenzione tra la 

Repubblica italiana e … per evitare le doppie imposizioni in materia di imposte sul reddito e 

sul patrimonio e prevenire le evasioni fiscali” as well as in provisions resulting from 

the process of implementation of EU secondary legislation t . 

In this respect, tax evasion can be qualified the open violation of tax rules 

concerning tax accounting requirements, the issuing of invoices on taxable 

transactions, the filing of tax returns, the correct payments of taxes due; tax 

evasion is therefore, by definition, an illegal tax behaviour which is carried out by 

hiding the existence of taxable situations and is subject to (administrative and 

criminal) sanctions. In this respect, there are a few reoccurring characteristics that 

qualify a tax evading behaviour, which can be summarised in the following three 

points: 

� the circumstance that a tax-triggering behaviour has been put into 

place and the awareness thereof; 

� the awareness that a specific tax obligation is connected to the 

specific behaviour which has been put into place; 

� the attempt to circumvent such tax obligation (in part or in full) by 

means of specific actions or omissions u . 

A tax fraud is a particular type of tax evasion and qualifies as an “illegal 

tax behaviour” which is carried out as a result of a deliberate intent and through 

the alteration of documents and accounting books. 

Finally, references to tax mitigation could also be found in Italian tax 

scholarship under the expression “lecito risparmio d’imposta”, that is, a “legitimate tax 

saving”. Attempts at sorting out tax mitigation/legitimate tax saving from tax 

avoidance has been carried out by the Tax Authorities in the issuance of 

administrative rulings. In particular, according to Ruling No. 117/1999, “the 

deployments of arrangements that are legal per se but that are not approved by the tax legal 

s A. LOVISOLO, „L‟evasione e l‟elusione tributaria‟, (1984) Dir. prat. trib., 1287. 

t See for instance Art. 11 of Directive No. 90/434/EEC (“Mergers Directive”) or Art. 1 of Directive No. 

90/435/EEC (“Parent Subsidiary Directive”). The case law of the ECJ has somewhat suffered from 

terminological inconsistencies in the Italian versions of its decisions with respect to the notions of tax avoidance 

and tax evasion. In this respect, see P. PISTONE, „L‟elusione fiscale come abuso del diritto. Certezza giuridica 

oltre le imprecisioni terminologiche della Corte di Giustizia Europea in materia di I.v.a‟, (2007) 3 Riv. dir. trib., 17. 

u A. CONTRINO, Elusione fiscale, evasione e strumenti di contrasto. Profili teorici e problematiche operative, Bologna, 1996, 

25.



system is what distinguishes tax avoidance from a legitimate tax saving, the latter implying the 

deployment of the most favorable tax rules picked among those that the tax legal system offers to 

the tax payer, on level of equal legitimacy”. Such an approach seems to be consistent 

with the most recent international studies on this specific topic as well as with the 

experience of other Countries v . 

It should however be remarked that besides the theoretical benchmark 

provided by scholarship and the occasional guidelines rendered by Tax 

Authorities, there is no clearcut legislative definition determining the boundaries 

of a legitimate tax saving (e.g., under the form of the envisaging of “safe harbors”); 

thus, also in this case, any working definition would largely be the result of a 

scholarly reconstruction. 

In this latter respect, a legitimate tax saving can generally be defined w as 

the achievement of a tax saving through the correct use of tax rules and therefore 

is a legal tax behaviour which leads to the result of reducing or minimizing taxes in 

a legal way. “Legitimate tax saving” is also defined as “tax planning”, i.e. a deliberate 

activity carried out by the taxpayer to reduce taxes by complying with tax 

legislations and regulations. By contrast, “tax avoidance”, although carried out 

openly like “legitimate tax saving”, constitutes an abuse of tax laws. It is interesting 

to remark that, within the existing Italian framework, the very same transaction 

may be labelled as a form of legitimate tax saving rather than a tax avoiding one 

on the grounds of the existence of a sound business purpose and the lack of 

apparent signals of a purposive scheme aimed at circumventing tax laws. 

In the definitive, more efforts in sorting out tax avoidance from legitimate 

tax saving/tax mitigation should be attempted in the Italian experience; as it has 

been observed, the line between legitimate tax saving/tax mitigation and tax 

avoidance is necessarily a fine one, however, the legislative and the judiciary as 

well as the Tax Authorities responsible for the enforcement of tax laws should 

endeavour to more clearly mark such a line, so that taxpayers could be provided 

with a consistent, predictable and fair approach and thus be put in a position to 

act efficiently and confidently and yet be inspired by mutual bona fides x . 

v Reference in this respect should be made to the extensive study “Comparing the General Anti-avoidance Rule of 

Income Tax Law with the Civil Law Doctrine of Abuse of Law” by Zoe and John Prebble, published in the April 

2008 issue of European Taxation (151 – 170). 

w In the lack of excerpts of case law or documents issued by the Tax Authorities dealing with the contours of tax 

mitigation, reference should once more be made to scholarly classification. See, in English, V. UCKMAR, „Tax 

Avoidance and Tax Evasion General Report‟, in Cahiers de droit fiscal international, Vol. LXVIII a, Amsterdam, 1983, 

passim. 

x Such auspice, to which we subscribe, is stated in J. PREBBLE, Z. PREBBLE, „Comparing the General Antiavoidance 

Rule of Income Tax Law with the Civil Law Doctrine of Abuse of Law‟, (2008) 4 European Taxation, 

168.



III. Does authority to address tax avoidance derive from the reported 

country‟s constitution? If not, please explain the source of the legal power 

to regulate tax avoidance (legislative, executive, administrative, or any 

other source). 

The authority to operationally address tax avoidance by conducting special tax 

assessments by interpreting and enforcing the G.A.A.R. lies in the hands of Tax 

Authorities. 

From the point of view of the sources of such competence, the G.A.A.R. is 

contained in a piece of ordinary legislation (Art. 37 – bis of Presidential Decree 

No. 600/1973). 

With reference to the constitutional roots of the authority to address tax 

avoidance, useful remarks can be drawn by recent case law of the Italian Court of 

Cassation, covering the currently highly debated topic of the existence of a 

general anti-abuse of right non-written clause, immanent to the Italian tax 

system y , that will however be developed in following dedicated sections of this 

work. 

In this respect, starting from 2007 and capitalizing on the legacy of the 

ECJ decision “Halifax” z , the Italian Court of Cassation started applying the abuse 

of right test as developed by the ECJ to purely domestic transactions. 

In the “Halifax” Case, the ECJ, provided two general conditions under 

which a form of abuse of rights can be detected with reference to VAT aa . 

First of all, according to the ECJ, an abuse of right within the context of 

VAT can be found to exist only if the transactions concerned, notwithstanding 

formal application of the conditions laid down by the Sixth VAT Directive (as 

well as the national legislation transposing it) results in “(…) the accrual of a tax 

advantage the grant of which would be contrary to the purpose of those (VAT Sixth Directive 

and national legislation) provisions.” 

Additionally, in order for an abusive practice to be detected, it must be 

apparent from a number of objective factors that the essential aim of the 

y As a matter of fact, the debate on abuse of rights is not a new one. For an introductory overview in French with 

a comparative approach see C. DAVID, „L‟abus de droit en Allemagne, en France, en Italie, aux Pays-Bas et au 

Royaume -Un essai de comparation‟, (1991) 1 Riv. dir. fin., 220 and, in Italian, with focus on the German 

experience, P. PISTONE, Abuso del diritto ed elusione fiscale, Padova, 1995. 

z ECJ, Case C- 255/02, Decision of 21st February 2006, “Halifax c. Commissioners of Customs & Excise”. 

aa It should be remarked that reference to the abuse of right principle had already been made the European Court 

of Justice in Case C – 206/94, Case C – 367/96, Case C – 167/01.



transactions concerned is to obtain a tax advantage. Such a requisite shall 

however be interpreted rather narrowly, since the ECJ confirmed that “the 

prohibition of abuse is not relevant where the economic activity carried out may have some 

explanation other than the mere attainment of tax advantages.” bb 

At a domestic level, clarifications were set forth, in this respect, by the 

I.R.A. in Circular Letter No. 67/E of 13 th December 2007, which substantially 

replicates the conclusion set forth by the ECJ in the “Halifax” Case cc . 

At first, the cases where the ECJ-derived abuse of right test was applied 

dealt with VAT matters, thus falling within the scope of an EU harmonized tax; 

however, in three decisions dating back to December 2008, the abuse of right 

approach was adapted in order to constitute a basis of assessment also with 

respect to the non EU harmonized corporate income tax. In subsequent 

decisions of the Italian Court of Cassation which were issued in 2009 dd , the 

application of the abuse of right concept was by contrast justified under the 

“ability to pay” principle enshrined in Art. 53 of the Italian Constitution, which 

can be considered the focal point of the whole Italian tax legal system. 

IV. What court, body, branch, or agency determines whether a transaction 

involves tax avoidance? What standard is employed to determine whether 

the taxpayer is entitled to the tax benefit or reduction sought? In other 

words, how does the adjudicatory body decided whether there is 

unacceptable tax avoidance or acceptable tax mitigation? 

The detection of tax avoiding behaviors lies among the prerogatives of the 

I.R.A., which is currently also entrusted with the task of interpreting Art. 37 – bis 

of Presidential Decree No. 600/1973 in order to issue pre-emptive rulings at the 

request of taxpayers. 

Due to the complex scope of the G.A.A.R. and the existence of ample 

grey areas, a specific Task Force competent in setting forth specific rulings on 

specific transactions upon request by the taxpayer (“Comitato Consultivo per 

l’Applicazione delle Norme Antielusive”)was created in 1998. The Task Force was 

however disbanded in 2007 and its functions in dealing with the issuance of tax 

rulings with respect to the pre – emptive assessment of the tax avoiding nature of 

a given transaction or set of transactions have ever since been taken up by the 

bb ECJ, Case No. 255-02 of 21st February 2006, “Halifax c. Commissioners of Customs & Excise”, Paragraph 74. 

cc For a Commentary, see B. SANTACROCE, „Il concetto comunitario di abuso del diritto in una recente 

circolare delle Entrate sull‟elusione nell‟IVA‟, (2008) 1 Dialoghi Tributari, p. 117. 

dd See, in particular, Court of Cassation, Decision, No. 8487/2009.



I.R.A. 

Paras. 4 through 8 of Art. 37-bis of Presidential Decree No. 600/1973 

provide the procedural rules for conducting tax assessments based on the 

G.A.A.R.. In Particular, Tax Authorities, before serving an assessment notice 

concerning Art. 37-bis of Presidential Decree No. 600/1973, must request to the 

taxpayer clarifications in regard to the transaction, and specify the reasons of the 

assessment. 

The subsequent assessment notice cannot be issued before sixty days from 

the date of the request to the taxpayer, who should set forth his clarifications, in 

particular with respect to the business purpose of the transactions under scrutiny. 

The assessment notice so issued by the Tax Authorities must indicate clearly and 

in details its reasons, and must specifically refer to the clarifications previously 

submitted by the taxpayer. As a result of these safeguards in favour of the 

taxpayer, an assessment notice based on Art. 37 – bis of Presidential Decree No. 

600/1973 is null and void if: 

a) Tax Authorities, before serving an assessment notice 

concerning Art. 37-bis, did not request to the taxpayer clarifications in 

regard to the transaction; and 

b) the subsequent assessment notice does not indicate clearly 

and in details its reasons, and/or does not specifically refer to the 

clarifications previously submitted by the taxpayer. 

While a set of transactions may at first be deemed as tax avoiding by the 

I.R.A., the taxpayer can clearly challenge the tax assessment notice exposing such 

findings and the Court can even overturn the earlier conclusions of the I.R.A., 

even though, in this specific case it bears the burden of proof. The logical 

process followed by the I.R.A. and by the Court should theoretically be the same, 

even though the G.A.A.R. provides room for discretionary factual qualifications 

and interpretation. From a theoretical point of view, it is possible to summarise 

the tax avoidance assessment flowchart as follows. 

Deciding whether a given transaction or chain of transactions represents 

illegal tax avoidance or a form of legitimate tax saving (“tax mitigation”) relies on 

the application of the six pronged test encapsulated in the Italian G.A.A.R., Art. 

37 – bis of Presidential Decree No. 600/1973, which will be examined in further 

detail in the following sections. As it will be outlined, the structure of the test is 

relatively clear, but there are various problems in regard to the actual meaning of 

the requirements, considering, in particular, that the provision under scrutiny can 

be applied on a case-by-case basis to a great variety of actual transactions, quite 

often exhibiting a great deal of economic and legal complexity which leaves



much to the factual characterisation undertaken by the examining Body. 

Along with the issue of an assessment of the valid business purpose 

underlying a transaction, which will be addressed in the following section of this 

work, it can be anticipated that the two main items on which the I.R.A. and, 

eventually, Tax Judges focus their attention when assessing a G.A.A.R. is 

probably to be found in the following aspects: 

� the detection of the use of abnormal legal arrangements so to 

bypass tax laws; 

� the assessment of the existence of a specific intent concretised in a 

purposive scheme. 

With respect to the former area of enquiry, the approach to the matter is 

twofold: there can be “by-passing” of tax duties, as well as of tax rights, as Art. 37bis 

of Presidential Decree No. 600/1973 provides that “Tax Authorities have the 

power to disregard for tax purposes arrangements aimed at by-passing rights and duties provided 

for by tax rules”. 

By-passing of tax duties is the typical situation in which the taxpayers 

arranges its own course of affairs in such a way to unduly avoid or prevent the 

application of the normal taxing rules (the “tax duty” or “obligation”) provided for 

the normal course of action. 

By-passing of tax rights is more difficult to assess, as typically taxing rules 

provide for tax duties (payment of taxes), rather than tax rights. The 

Government Report on the introduction of the G.A.A.R. clarified that “bypassing” 

of tax rights does not occur when the taxpayers make an election which is 

expressly provided for by tax rules among two alternative courses of action equally 

available, thereby achieving a tax reduction. In such cases, the taxpayer has a 

right to choose among alternative tax treatments that are considered by the tax 

system as equally available and legally obtainable. This typically occurs when a tax 

relief is obtained as a result of an election of certain options or of the meeting of 

certain requirements. 

In summary, there is “by-passing” of tax rights under Art. 37-bis of 

Presidential Decree No. 600/1973 when the taxpayer takes unduly advantage of a 

tax treatment through abuse of a beneficial treatment offered by the tax system. 

With respect to the latter issue of the existence of a “purposive scheme”, it 

could be set forth that there is a “purposive scheme” when the transaction (and its 

result) conflict with: 

� general principles of tax law; 

� specific principles of a certain area of tax law; 

� the function of tax rules; and



� the natural entitlement of tax positions. 

The Government Report to Art. 37-bis of Presidential Decree No. 

600/1973 clarified that a transaction can be qualified as tax avoiding on the 

grounds of the detection of a purposive scheme when the taxpayer skilfully 

combines various arrangements, which per se are perfectly legitimate, in order to 

obtain a final result – a tax saving – which is not legitimate because it conflicts 

with tax principles (so called “combination method”). At a closer glance, the 

“combination method” is based on a “substance over form” approach. For example, a 

taxpayer may violate: 

� the general principles of tax law according to which one should not 

allocate income to other parties; or 

� specific principles of a certain area of tax law such as the rule according to 

which if capital gains on participations are exempt, capital losses are not 

deductible; or 

� the function of tax rules, such as the function of jurisdictional links for 

taxing income sourced in Italy; or 

� the natural entitlement of tax positions by allocating portions of income to 

related parties. 

For clarity‟s sake, it should be underlined that a behaviour of the taxpayer 

may however be deemed to have a purposive scheme even if it does not amount 

to overt tax evasion or tax fraud. 

A. Does the adjudicatory body address the issues of “business 

purpose” or “economic substance?” Do decisions regarding previous 

transactions provide precedential authority for new or subsequent transactions? 

Are transactions that meet specified requirements (safe harbors) immune from 

challenge? Are specified transactions subject to heightened scrutiny? 

One of the requisites for a transaction or a set of transactions being labeled as tax 

avoiding is the lack of an underlying valid business purpose. 

In this respect, the Government Report on Art. 37-bis of Presidential 

Decree No. 600/1973 clarified that the notion of “valid business purpose” 

encompasses all economic reasons which do not have a tax nature (i.e., the 

reduction or minimization of taxes). Valid business purpose cannot be defined ex 

ante, but it must be assessed on a case-by-case basis by considering various 

elements related to the economic behaviour of the taxpayer ee . 

ee In this sense, L. POTITO, „Le “valide ragioni economiche” di cui all‟art. 37 – bis del D.p.r. n. 600/1973: 

considerazioni di un economista d‟azienda‟, (1999) 1 Rassegna tributaria, 63.



With reference to the assessment of the valid business purpose, three 

possible cases can be envisaged: 

� In the first case, the transaction has only valid business purpose and 

no tax reasons at all; in this case, there is no tax saving, and 

therefore no tax avoidance under Art. 37-bis of Presidential Decree 

No. 600/1973. 

� In the second case, the transaction has no valid business purpose at 

all; in this case, the transaction does no lead to any business goal, 

and the tax saving is the only reason to carry out the transaction; 

these kind of transactions are “tax-driven” and it is easy to 

determine that the transaction has the typical features of tax 

avoidance. 

� In the third case, the transaction has both valid business purpose and 

tax reasons; in this case, the tax saving is not the only reason to carry 

out the transaction and therefore the requirements of a tax 

reduction may arise only as a by-product of the transaction. In these 

cases, which are quite normal in current practice, the issue is to 

assess the prevailing nature of tax reasons versus business reasons; for 

example, in structured finance transactions it is usually required that 

the transaction be “pre-tax positive”; i.e., that the gain of the 

transaction is not exclusively deriving from tax savings. 

The I.R.A. has developed an aggressive approach under which the lack of 

valid business purpose is, by definition, an indicator of a “by-passing” and of a 

“purposive scheme” ff . On the other hand, the existence of valid business purpose is 

not believed, in the more sophisticated tax planning circles, to be per se a 

safeguard against the enforcement of the G.A.A.R. but, rather, an element which 

supports additional evidence excluding the occurrence of the typical features of 

tax avoidance - in particular - of the existence of a “purposive scheme”. 

It should be remarked that the interpretation of Art. 37 – bis of 

Presidential Decree No. 600/1973 is conducted on a case – by – case basis with 

respect to single transactions. In this respect, outside the circumstance that the 

principles elaborated by the Court of Cassation are binding on lower Courts, 

even in the field of anti-avoidance interpretation, there is no formalised rule of 

precedent in the Italian system with respect to tax avoidance. 

ff Such an approach has however been severely criticized in literature (See, on this specific aspect and among the 

most recent publications, G. ZIZZO, „Ragioni economiche e scope fiscali nella clausola antielusione‟, (2008) 1 

Rassegna tributaria, 170) and it has often been eventually dismissed by Court Decisions



When a special Task Force (“Comitato Consultivo”) had been assembled in 

order to issue preliminary rulings at the request of the taxpayer on the tax 

avoiding nature of a transaction, a rather wide inventory of cases layered, so that 

a line of reasoning akin to that of an “analysis of precedents” developed among 

taxpayers. However, such an analysis could only function as a rule of thumb and 

was better suited at defining what could never pass by before the Task Force 

rather than an analysis aimed at defining what kind of transactions could in no 

case be considered as tax avoiding, that is, what kind of “safe harbors” could be 

foreseen. 

In the Italian experience, referring to “safe harbors” is slightly inappropriate, 

as similar phenomena have mostly to do with the objective scope of application 

of the G.A.A.R.. There is however one notable exception in this respect; namely, 

based on Para. 3 of Art. 176 of the I.T.C., deeds of conferral of going concern 

carried out by paying a step up substitute tax or by maintaining the tax values of 

the assets conferred unchanged, followed by a transfer of the acquired 

participation, so to benefit from the participation exemption regime set forth by 

Art. 87 I.T.C. are never considered as tax – avoiding transactions. Such case, 

justified on the grounds of reasons of coherence of the tax legal system, is 

peculiar because if it were not for the open exclusion of Para. 3 of Art. 176 of the 

I.T.C., this kind of transaction would wholly fall within the scope of application 

of Art. 37 – bis of Presidential Decree No. 600/1973. 

Another aspect to be underlined is that, the “purposive scheme” is almost 

always central to the detection of a tax avoiding scheme; in this respect, an 

isolated transaction, such as for instance, a single merger, a single division, a 

single conferral is almost never considered as sufficing to lead to avoidance of 

taxes. 

The same applies, symmetrically, to the existence of categories of 

transactions subject to a more in depth scrutiny. The Italian G.A.A.R. has a 

specific (although broad) scope of application from an objective point of view 

and applies only with respect to a specific number of transactions. Nonetheless, 

it is clear that, depending on the historical phase, Tax Authorities have been 

more aggressive on tackling specific tax avoiding schemes at the expense of other 

from drawing lesser attention. 

Besides Art. 37 – bis of Presidential Decree No. 600/1973, another fully 

fledged anti-avoidance special rule refers to cases of “fictitious interposition” which 

are dealt with under Art. 37 of Presidential Decree No. 600/1973. According to 

this provision, on the grounds of serious, circumstantiated and consistent 

presumptions, it can be demonstrated that a person is the beneficial owner of



some items of income that are apparently perceived by a conduit, Tax Authorities 

can attribute such items of income to their beneficial owner gg . 

B. Has the reported country adopted a general anti-avoidance rule 

(GAAR) or similar regime? Does the GAAR apply to all or selected cases? 

Selected Please detail the circumstances under which the GAAR was adopted 

(and please state when it was adopted). What was the impetus for adoption of 

the GAAR? Which body has the authority to interpret application of the 

GAAR? Employing whichever assessment measures you choose, state whether 

the GAAR has been a success or failure. 

The provision in Italian tax law which more closely qualifies as a G.A.A.R. is Art. 

37 – bis of Presidential Decree No.600/1973. Unlike a proper Generalklausel such 

as the one found in the German legal tradition, Art. 37 – bis only applies with 

respect to a specific – although extremely broad - array of transactions. 

Article 37-bis of Presidential Decree No. 600/1973 has a complex 

structure which can be summarized as follows: 

a) Para. 1, states the basic requirements of tax avoidance by providing that: 

“Tax authorities have the power to disregard for tax purposes acts, facts and legal 

arrangements, also in their functional connection, lacking a valid business purpose, hh 

aimed at by-passing rights and duties provided for by tax rules, and at obtaining tax 

reductions or tax reimbursements which would not be legally available”; 

b) Para. 2, provides that “Tax authorities have the power to disallow tax benefits 

achieved through the acts, facts and legal arrangements mentioned at Para. 1, by 

applying taxes in accordance with the tax rules which were thereby avoided”; 

c) Para. 3, provides that Article 37-bis, Para. 1 and 2, are applied upon the 

condition that, within the taxpayer‟s behaviour, one or more transactions 

expressly listed by same Para. 3 are carried out. Such transactions include: 

� transformations, mergers, divisions, voluntary liquidations and 

distributions to the shareholders other than profit 

distributions; 

� sale or deeds of conferral of going concerns (or of rights of 

jouissance thereupon); 

� transfers of credits; 

gg For an introductory reading in English see V. UCKMAR, F.M. GIULIANI, „Interposition in Italian Taxation 

on Income and International Transactions‟, in K. VAN RAAD (Ed.), Essays on International Taxation in Honor of 

Sidney I. Roberts, Deventer, 1994, 387. 

hh Literally: “without valid economic reasons”.



� transfers of excess tax credits; 

� transactions covered by the legislation implementing the 

Merger Directive; 

� transfer of the tax residence of a company; 

� classifications made in financial statements; 

� transactions concerning transfers and valuations of 

participations and transfers of securities, 

� foreign currencies and precious metals and transactions on 

derivative instruments; 

� payments of interest and royalties eligible for the exemption 

under the EC Interest and Royalties Directive (2003/49/EC), 

if made to a person directly or indirectly controlled by one or 

more persons established outside the European Union ; 

� transactions between resident entities and their affiliates 

resident in tax havens; and 

� transactions concerning the payment of an amount under a 

penalty clause. 

d) Paras. 4 - 8 provide procedural rules for assessments based on Article 37bis. 

The overall procedure to assess tax avoidance under Art. 37- bis of 

Presidential Decree No. 600/1973 can be summarized in the following sixstep 

procedure: 

1) one should determine the overall transaction adopting a functional approach, 

also combining different arrangements being carried out by the taxpayer 

and adopting a substance over form approach. 

2) once the transaction as a whole has been identified, one should verify 

whether one, or more, or all of the acts, facts and legal arrangements 

carried out by the taxpayer are expressly included in the” list” of Para. 3; 

only if one, or more, or all of the acts, facts and legal arrangements 

included in the list of Para. 3 are a carried out by the taxpayer, Art. 37-bis 

of Presidential Decree No. 600/1973 can be applied as a G.A.A.R.. 

3) once the transaction as a whole has been identified including the 

arrangements listed at Para. 3, one should quantify the “actual tax saving”, 

by comparing the taxes paid as a result of the transaction with the taxes 

which would have been paid should the taxpayer had followed an 

alternative “normal course of action”; only if tax saving is achieved, Art. 

37-bis of Presidential Decree No. 600/1973 can be applied as a G.A.A.R..



4) once it is determined that Art. 37-bis can be applied as a G.A.A.R., one 

should assess whether the transaction lacks of a valid business purpose; only if 

the transaction lacks of a valid business purpose, one should proceed to 

verify the other requirements. 

5) once it is determined that the transaction lacks of a valid business purpose, 

one should assess the requirements of “By-passing” and/or “Purposive 

Scheme”; 

6) once all requirements described above at indent 4 through 5 are assessed, 

the tax effects of the transaction can be disregarded by Tax Authorities for 

tax purposes. 

The actual application of the above described six pronged test lies among 

the prerogatives of Tax Authorities and, in particular, the I.R.A. who is in charge 

of issuing pre-emptive rulings and conducting tax audits from which a tax 

assessment notice based on Art. 37 – bis of Presidential Decre No.600 could well 

be the outcome. The same interpretative and logical process is then carried out 

by tax courts when the deeds issued by the I.R.A. are challenged by the taxpayer. 

As earlier mentioned, the current Art. 37 – bis of Presidential Decree No. 

600/1973 had a forerunner in Art. 10, Para. 1 of Law No. 408/90 which, 

according to many commentators, was the real breakthrough in the Italian tax 

jurisdiction with respect to the introduction of a fully fledged tax avoidance rule ii . 

However, as it will be outlined hereinafter, this first attempt to introduce 

an anti-avoidance provision in the Italian tax system did not prove successful and 

required subsequent amendments which lead to the current Art. 37 – bis of 

Presidential Decree No. 600/1973. The basic structure of art. 10, Law No. 

408/1990 was the following: 

a) (fairly restricted) list of pre-defined transactions; 

b) detection of an intent exclusively aimed at tax saving; 

c) detection of the lack of “valid business purpose”; 

d) detection of a “fraudulent behaviour”. 

Art. 28 of Law No. 724/1994 subsequently amended said provision by 

eliminating a specific reference to certain transactions on shares and added a 

further list of transactions encompassed under the purpose of G.A.A.R. (such as 

liquidations, valuation of participations and other securities). 

Art. 28 of Law No. 724/1994 also clarified that the “lack of valid business 

purpose” and the “exclusive aim of fraudulently obtaining tax saving” jointly constituted a 

ii In this sense, se, among the most recent literature I. VACCA, „Abuso del diritto ed elusione fiscale‟, (2008) 1 

Riv. dir. trib., 1069, according to whom the introduction of Art. 10 of Law No. 408/1990 was an “absolute novelty”.



single requirement; as a result, it was not clear whether such new clause was a 

one-pronged test or a two-pronged test. 

The distinction does not hold a merely phenetic relevance: namely, under 

Art. 10 of Law No. 408/1990 interpreted as a one-pronged test, the “lack of valid 

business purpose” and the “exclusive aim of fraudulently obtaining tax saving” constituted a 

single requirement in which there was no clear distinction between the 

requirement of valid business purpose and that of fraudulent tax saving. On the 

contrary, the interpretation of Art. 10 of Law No. 408/1990 as a two-pronged 

test imported a distinction between the requirement of valid business purpose 

and that of fraudulent tax saving as “intent”, requesting the fulfilling of both 

requirements in order to have a tax avoiding behaviour being detected. 

The unclear definition of the requirements of tax avoidance reveals the 

failure of Art. 10 of Law No. 408/1990 to serve as a G.A.A.R. and shows that 

this rule was just a first attempt to deal with tax avoidance in Italy with a 

standardised rule. 

The main weaknesses of Art. 10 of Law No. 408/1990 were those related 

to the meaning of “fraudulent behaviour”, and those relating to the combined 

requirement of specific intent and lack of “valid business purpose”. As to the 

meaning of “fraudulent behaviour”, two positions emerged in legal scholarship 

which deserve to be briefly outlined, as they appear extremely actual with respect 

to the current debate on abuse of right. However, regardless any possible legal 

qualification, a fraudulent behaviour was, in the definitive, only a type of tax 

avoidance, but many other “low profile” schemes were devised requiring no 

alteration of documents or mischievous intent and such schemes could easily get 

away unscathed. 

An additional impediment to the actual effectiveness of such an 

embryonic G.A.A.R. was the circumstance that Art. 10 of Law No. 408/1990 

could only be applied to a fairly restricted list of pre-defined transactions: under 

the widespread legalistic approach adopted in Italy at the time, any form of tax 

avoidance carried out through transactions not included in that very restricted list 

was, by definition, not deemed to amount to tax avoidance as it did not fall 

within the scope of application of the anti-avoidance clause, an extensive of 

which was simply out of question. 

Moreover, from an implementation standpoint, Art. 10 of Law No. 

408/1990 did not provide for a quantification of the illegal tax saving, with the 

result that said provision operated as a general prohibition of tax avoiding 

behaviour rather than as an effective G.A.A.R..



Based on such matters of fact, the assessment of the original immature 

anti-avoidance clause could schematically be depicted as twofold. 

In the definitive, it was generally held that Art. 10 of Law No. 408/1990 

was substantially not applicable as a G.A.A.R., but served as a generic rule against 

tax fraud/tax evasion. 

Tax Authorities tried to react to this view with Ruling No. 105/1994 

where it was clarified that: 

a) “fraudulent behaviour” had not the same meaning of tax 

fraud/tax evasion, but, rather, a “fraudulent behaviour” was a form of abuse 

of rights in tax matters; and 

b) the lack of valid business purpose was the cornerstone of 

Art. 10 of Law No. 408/1990, as it allowed to ascertain whether the legal 

arrangements under scrutiny had been put into place with the exclusive 

aim to avoid taxes. 

Based on a such a clearcut interpretation, which basically qualified the 

provision under scrutiny as a two – pronged yet asymmetric (as central relevance 

was awarded to the business purpose test) anti-avoidance test, Tax Authorities 

tried to implement Art. 10 of Law No. 408/1990, but the results were 

disappointing, as the above depicted inherent flaws that characterised this clause 

could not be overcome by the sole means of interpretation. 

In scholarly discussion it was relatively easy to agree on the basic idea that 

tax avoidance is abuse of law, as well as on the main features of the definition of 

tax avoidance, but there was a lively debate on whether a G.A.A.R. would be 

appropriate and feasible jj . From a policy perspective there was the need to limit 

excessive discretionary powers of Tax Authorities, but, at the same time, to 

prevent tax abuse and erosion of tax base, but it was difficult to strike the 

balance. 

In summary, three positions emerged when dealing with the provision 

under scrutiny and with tax avoidance at large: 

a) “legalistic approach”; 

b) “substantive approach”; 

c) “intent approach”. 

Proponents of the “legalistic approach” claimed that there was no need to 

introduce a G.A.A.R., as such a rule would conflict with the principle of “tax 

legality” by attributing excessive discretionary powers to Tax Authorities. 

jj R. LUPI, „L‟elusione come strumentalizzazione delle regole fiscali‟, (1994) 2 Rassegna Tributaria, 225;



According to the “substantive approach”, it was believed that a G.A.A.R. was 

needed to prevent widespread situations of abuse of tax laws, to limit the 

resulting erosion of tax base and to ensure enforcement of tax laws; this 

approach was supported by Tax Authorities by adopting a substance over form 

approach. 

An intermediate position was the “intent approach”, according to which only 

transactions with a specific intent to violate tax laws would be considered as 

illegal tax avoidance. 

The policy and scholarly debate, however, did not lead to a clear criterion 

(or a set of criteria) to distinguish between, on the one hand, illegal tax avoidance, 

and, on the other hand, legal tax saving. This explains, to a certain extent, why it 

took more than ten years to come to the first G.A.A.R. (Art. 10 of Law No. 

408/1990) and why the legislative process in this matter was so awkward. 

In this respect, a brief outline of legal (pre-)history in the field of tax 

avoidance may be useful. During the 1980s there were three pieces of proposed 

legislation on G.A.A.R.: 

a) Proposal No. 3461/1986; 

b) Bill No. 1301/1988; 

c) Bill No. N3075/1988. 

Under Proposal No. 3461/1986, tax avoidance was generically defined as 

“the achievement of a tax saving”; this was just a proposal of legislation but did not 

lead to the actual presentation of bill in Parliament. 

A couple of years later two bills were formally presented. According to Bill 

No. 1301/1988, tax avoidance was defined as the achievement of the “most 

favourable tax treatment” in those cases in which the same “economic result” could be 

achieved through two or more economic courses of action having differentiated 

tax treatments. 

Finally, Bill No. 3075/1988 defined tax avoidance as that behaviour 

expressly aimed at hiding or covering legal arrangements leading to “less favourable 

tax treatment” in those cases in which the same “economic result” could be achieved 

through two or more economic courses of action having differentiated tax 

treatments. 

These proposals never reached the floor, while the policy debate 

continued, eventually leading to the enactment of the first GAAR: art. 10 of law 

408/1990. 

For the sake of completeness, it should be remarked that an anti-abuse 

clause centered on a substance over form test had already been included in Art. 8 

of the Registration Tax Act (Royal Decree No. 3269/1923, according to which



“taxes are to be implemented in accordance with the intrinsic nature and effects of a transaction, 

regardless of the apparent juridical qualification and form of the transaction” kk . 

Authoritative doctrine dating back to the first half of the XX Century ll 

held the view that said provision already encompassed a G.A.A.R. ante litteram. 

Such an interpretation appears to have been heavily influenced by the German 

experience, where the 1919 Reichsabgabenordnung (Tax Act of the German 

Reich) contained a clause endorsing a teleological interpretative approach mm , 

according to which tax laws were to be interpreted giving pre-eminence to their 

economic meaning and content nn . Nonetheless such a position does not seem to 

have stood the test of time, as, when the Registration Tax Act was amended back 

in Seventies, the provision under comment was modified in the sense that the 

actual effects of a transaction to be taken into account in order to correctly apply 

the related registration tax regime were the juridical one, not the economic one. 

If the introduction of an express anti-avoidance clause was then a fairly 

recent innovation in the Italian tax landscape, the same cannot be held with 

respect to the existence of anti-avoidance interpretative canon, consistently 

applied by Tax Authorities in their rulings and by tax courts, with particular 

reference to the Italian Court of Cassation. The interpretative orientations 

adopted by administrative and jurisdictional organs is probably not less important 

than the “law in the books”, as these organs are not only in charge of interpreting 

the G.A.A.R., but are also influential in anticipating trends, as it is currently 

testified by the “abuse of rights” case law legacy. Such a pioneering role, although 

probably not fully endorsable and justifiable in the light of the legality principle 

enshrined in Art. 23 of the Italian Constitution, can also be mirrored 

retrospectively with regard to the praecox introduction of anti-avoidance 

sensitivity in the Italian tax environment. 

Some fairly ancient case law of the Court of Cassation can be mentioned 

as having a paramount importance in shaping the so-called anti-avoidance 

interpretation canon. Said decisions are, in particular, cases No. 1793/1966, No. 

780/1968, No. 1472/69 and 1530/69, where a substance over approach was 

kk In the current version of the Registration Tax Act (Presidential Decree No. 131/1986) the corresponding 

provision (Art.20) has been amended as follows: “taxes are to be implemented in accordance with the intrinsic nature and the 

juridical effects of a transaction subject to registration, regardless of the apparent juridical qualification and form of the 

transaction (emphasis on amended parts added)”. 

ll See, in particular, B. GRIZIOTTI, „L‟imposta di registro sull‟usufrutto della cava di sabbia‟, (1955) 1 Riv. dir. fin., 

34; D. JARACH, „La considerazione del contenuto economico nella interpretazione delle leggi d‟imposta‟, (1937) 

Riv. dir. fin., 56. 

mm For the qualification of the economic-driven intepretation of revenue laws as a form of teleological 

interpretation, see K. ENGISCH, Einfuhrung in das juristische Denken , Stuttgart, 1977, 121. 

nn Reported by A. HENSEL, Diritto tributario, Milano, 1956, 142.



adopted by the Court, even though these arrêts remained relatively isolated in the 

history of the supreme Court‟s Case Law oo . 

Against such a background, it could be probably set forth that the impetus 

in introducing a G.A.A.R., first in 1990 and then in 1997, although with different 

scopes and depth, was motivated not less by the need of a reform than by the 

need of a reaction, driven, inter alia, by the safeguard of legal certainty, against the 

“nomopoietic hybris” of the Court of Cassation in applying an often unpredictable 

anti-avoidance interpretative canon pp . Namely, in the light of such a legislative 

innovation, all previous cases suitable to amount to tax avoidance were dismissed 

from such charge, as it was made clear that, despite any anti-avoidance 

interpretation canon, anti-avoidance did not exist as a punishable misconduct 

before the introduction of the (quasi)-G.A.A.R.. 

The currently existing G.A.A.R. appears however almost out of date in the 

current lively debate concerning the introduction of a anti-abuse of rights judgemade 

clause primarily inspired by similar experiences in other advanced 

jurisdictions, as well as by the legacy of some ECJ decisions concerning EU 

harmonized VAT and, finally by the re-emergence of anti-abuse interpretative 

canon allegedly rooted in the fulfillment of the ability to pay principle enshrined 

in Art. 53 of the Italian Constitution. 

What could be said from an empirical perspective is that Art. 37 – bis of 

Presidential Decree No. 600/1973 did not prove so effective as a G.A.A.R. and 

such a conclusion is somewhat corroborated by the circumstance that, as it will 

be outlined further on in this work, the Court of Cassation has felt the need to 

revive an approach based on the “abuse of rights” principle. Such an occurrence 

actually arose from very practical reasons; namely, an apparently tax avoiding 

indecent dividend washing scheme emerged unscathed from the judgement of 

lower tier Courts in the late 90‟s, as the latter endorsed a restrictive and legalistic 

interpretation of the G.A.A.R.. In the last few years, appeals filed by the losing 

Tax Authorities reached the Court of Cassation which, in turn, has tried to apply 

the ECJ derived “abuse of rights” doctrine to these cases, so to avoid the subtleties 

that render the current G.A.A.R. unsuitable to deal with such forms of tax 

avoidance. 

oo For an accurate review and analysis of the case law of the Court of Cassation with respect to the last forties year 

(up to the end of the XX Century), reference should be made to G. ZOPPINI, „Prospettiva critica della 

giurisprudenza “antielusiva” della Corte di Cassazione (1969 – 1999)‟, (1999) 1 Riv. dir. trib., 919. 

pp The thesis of the “counter-reformist” import of the introduction of an anti-avoidance clause has also recently been 

set forth by G. FALSITTA, „L‟interpretazione antielusiva della norma tributaria come clausola generale 

immanente al sistema e direttamente ricavabile dai principi costituzionali‟, (2009) Corriere Giuridico, 296.



C. If the reported country has not adopted a GAAR, is the adoption of 

one imminent or contemplated in the near future? Have previous 

attempts to adopt such a rule been rejected? N.A. 

D. Is the executive or enforcement branch or body authorized to 

regulate tax avoidance? Is this authority exercised by promulgation 

of regulations, notices, or advisory rulings? Do these regulations 

relate to all tax-avoidance transactions or are they limited to 

specified categories of transactions (e.g., conduit entity transactions, 

abusive hybrid entity arrangements)? If these categories are 

numerous, please describe them generally and briefly. 

In general terms, Tax Authorities issue Circular Letters and Rulings outlining 

their interpretative positions concerning specific provisions. However, with 

particular respect to the anti-avoidance provisions, a specific mechanism, 

centered around the submission of a pre-emptive ruling request (so-called 

“interpello preventivo antieleusivo”) performed by the taxpayer, is foreseen by Art. 21 

of Law No. 413/91 qq . 

The anti-avoidance pre-emptive ruling can been requested with respect to the 

anti-avoidance provisions to be found in the Italian tax legislation and, in 

particular, with reference to: 

� the G.A.A.R. (Art. 37 – bis of Presidential Decree No. 600/1973); 

� the rule on fictitious interposition (Art. 37, Para. 3 of Presidential 

Decree No. 600/1973); 

� the treatment of advertising, promotion and representative expenses 

(Art. 108, Para. 2, Presidential Decree No. 917/1986; 

� transactions with parties resident in “black listed” Countries (Art. 

110, Para. 10 of Presidential Decree No. 917/1986). 

As earlier mentioned, with specific respect to anti-avoidance legislation, 

the interpretative task was adopted by an ad hoc Task Force (Comitato Consultivo) 

but this Task Force is currently no more into existence and its role has been 

undertaken by the I.R.A.. 

By submitting the description of a transaction or of a set of transactions 

and its interpretation of the thereby relevant anti-avoidance provisions, the 

taxpayer can obtain from the I.R.A. a binding opinion about the tax avoiding 

qq See G. ZOPPINI, „Lo strano caso delle procedure di interpello in materia di elusione fiscale‟, (2002) 1 Riv. dir. 

trib., 1991.



nature of such transactions. 

The ruling is binding for Tax Authorities that cannot subsequently deem 

as anti-avoiding a transaction which has been the object of a favorable ruling; on 

the other hand, a negative ruling does not forbid the taxpayer to put into place 

the concerned transaction(s), even though the latter may then be subject to tax 

audits and be addressed by a tax assessment notice. 

E. Do special rules apply to cross-border or international taxavoidance 

transactions? Are these rules judge-made, by statute, 

regulation, administrative pronouncement, or contained in treaties? 

Regarding treaties, please detail any anti-avoidance rules contained 

in treaties (e.g., limitation of benefits provisions) or judicial or other 

rules that limit the inappropriate use of treaties to avoid or reduce 

taxation. 

Special rules apply to cross-border and international tax – avoiding transactions. 

The source of these rules is a legal one, either deriving from domestic and 

community provisions, as well as from tax treaty clauses to be found in the 

Italian treaty network, which is typically adherent to the standards to be found in 

the OECD Model Convention. 

It should first of all be made clear that Art. 37 – bis of Presidential Decree 

No. 600/1973 is not bound to a specific territorial scope of application, to the 

extent that foreign transactions may be relevant for the purposes of the G.A.A.R. 

as long as they lead to tax savings in Italy achieved by means of a purposive 

scheme and resorting to transactions that are not justified by valid business 

reasons rr . 

A peculiar aspect in this respect which has rarely been considered by the 

I.R.A. or the Comitato Consultivo and which has not so far been explicitly 

addressed in a decision of the Court of Cassation is whether a saving of foreign 

taxes can be considered as a sufficient valid business reason for justifying a given 

set of transactions which may lead to a tax saving also in Italy. Such an issue 

becomes extremely relevant in the light of the emerging issue of international tax 

arbitrage ss , however an ultimate clearcut position on the issue has not yet 

emerged tt . 

rr See C. GARBARINO, Manuale di tassazione internazionale, II Ed., Milano, 2008, 882 et seq. 

ss For an updated introductory reading in English to this topic, see L. DELL‟ANESE, Tax Arbitrage and the 

Changing Structure of International Tax Law, Milano, 2006. 

tt For an analytical survey of the matter see P. LUDOVICI, „La rilevanza dei tributi esteri ai fini dell‟art. 37 – bis 

del D.P.R. 600/1973‟, in G. MAISTO (Ed.), Elusione ed abuso nel diritto tributario, Milano, 2009, 263.



The most obvious form of anti-avoidance clause superseding cross-border 

transactions is transfer pricing. 

According to Italian income tax rules – mostly in line with OECD 

guidelines – “item of income derived from transactions with non-resident companies which 

directly or indirectly control the enterprise, or are controlled by it or by the same company which 

controls the enterprise, shall be valued on the basis of the normal value (“valore normale”) of 

the goods transferred, services rendered and services and goods received (…), if an increase in 

income derives therefrom. The same rule shall apply if income is reduced, but only based on the 

mutual agreement procedure under the available Tax Treaties (if any)” (Art. 110, Par. 7, 

Italian Corporate Income Tax Code; see also Art. 9, Italian Corporate Income 

Tax Code; see also the clarifications provided by the Italian Tax Authorities, 

C.M. 2 nd September 1982 n, 32/9/2267, C.M. 12 th December 1981 n. 

42/12/1587). 

The Italian notion of “normal value” is mostly consistent with the 

international notion of “arm’s length price” set forth by Art. 9 of the OECD Model 

Convention and by the OECD Transfer Pricing Guidelines, thus qualifying as 

the average price or consideration paid for goods and services of the same or 

similar type, in free market conditions and at the same level of 

commercialization, and at the time and place at which the goods and services 

were purchased or performed (or, if no such criterion is available, at the time and 

place nearest thereto). 

Unlike other European Countries, the implementation aspects of transfer 

pricing have not been the object of specific legislation but have been left to the 

guidance provided by ministerial circular letters dating back to the 80‟s uu which 

currently appear inadequate to cover the range of problems connected to this 

very sensitive and ever-evolving area of international taxation. 

Italy has also introduced a “Controlled Foreign Company” legislation 

(hereinafter, CFC legislation, set forth by Art. 167 of the I.T.C.. The underlying 

mechanism is in line with the model provision earlier developed in the United 

States in the form of Subpart F of the Internal Revenue Code: the profits of a 

CFC are taxed directly on the head of the Italian resident shareholders, regardless 

of whether the CFC distributes dividends. The tax liability is assessed by applying 

Italian rules to foreign sourced income. 

The key point about the Italian CFC legislation lies however in its scope of 

application ratione personarum. 

uu In particular, Circular Letter No. 32/9/2267 of 1980 and Circular Letter No. 42/12/1587 of 1981.



CFC legislation applies to non-resident companies directly or indirectly 

controlled by Italian shareholders or where an Italian shareholder has a 

remarkable holding. 

Originally, CFC legislation applied only to companies which were resident 

of a “black listed” Country, i.e. a Country with low tax rates and which did not 

cooperate with Italy in terms of effective exchange of information. Starting from 

2010, however, as result of Law Decree No. 78/2009, the territorial perimeter of 

application of CFC rules will be extended to include also controlled foreign 

companies wherever located whose revenues derive for more than 51% from 

holding activities, royalty licensing and supply of infra-group services and whose 

tax burden is less than 51% of the virtual tax burden these companies would 

have in Italy by applying Italian corporate income tax rules. 

Taxpayers can prevent the application of CFC legislation by filing the 

request for a ruling; in order to obtain a positive ruling, the taxpayer has to 

demonstrate that the CFC either actually carries out a commercial or industrial 

activity effectively rooted in the market of the Country of establishment or that 

the income of the CFC is effectively taxed elsewhere, regardless of the favorable 

regime the CFC may receive in the “black listed” Country of residence. 

A further anti-tax haven legislation is set forth by Art. 110, Para. 10 of the 

I.T.C., according to which cost and expenses arising from transactions with 

parties that are resident of “black listed” Countries, are considered as nondeductible, 

unless the involved taxpayer can alternatively demonstrate that the 

non-resident carries on a real business activity or that the relevant transactions 

had a real business purpose and actually took place. 

With respect to cross-border investment income, the State of residence of 

the payee is a relevant factor in determining the applicability of total or partial 

exemptions on outbound withholding taxes foreseen by Italian domestic 

legislation. 

A further set of loosely anti-avoidance domestic provisions focusing on 

cross-border transactions are to be found within the context of the determination 

of the tax residence of a company. 

As a general rule, according to Art. 73 of the I.T.C., a company is 

considered as a tax resident of Italy when it maintains in Italy for the most part 

of the fiscal year (i.e., for at least 183 days when the fiscal year coincides with the 

calendar year) one of the following: 

� its registered office (as of its by – laws); 

� its place of effective management, i.e., not unlike the position of the 

OECD Commentary to Art. 4 of the OECD Model Convention,



the place where the Directors carry out the management of the 

company; 

� its main business object, i.e., the core activities actually carried out 

by the company. 

Foreign resident companies whose assets mainly consist in holdings of real 

estate investment funds and which are controlled, directly or indirectly, by 

persons that are residents of Italy are deemed to have their tax residence in Italy 

and the burden of proof to demonstrate the contrary lies on the taxpayers. 

The same rebuttable presumption applies with respect to foreign resident 

companies controlling Italian resident companies when of the following 

conditions occurs: 

� the foreign company is controlled, directly or indirectly, by persons that 

are tax residents of Italy; 

� the foreign company is managed by a Board of Directors mostly 

comprising of Directors that are tax residents of Italy. 

It should also be reminded that the transfer of the registered office of a 

company falls within the scope of application of Art. 37 – bis of Presidential 

Decree No. 600/1973 and as such, where other requisites are met, it may trigger 

the detection of a tax avoiding scheme. 

Finally, a very thorny issue, in the light of some recent infringement 

procedures started by the European Commission against Spanish corporate exit 

taxes vv , is the existence of an alleged exit tax ww , justified on the grounds of 

international tax avoidance concerns, in case of transfer abroad of the registered 

office of a company. In particular, Art. 166 I.T.C. establishes that a transfer of a 

registered office implies that the corporate assets that are not going to be 

absorbed into an Italian permanent establishment or that are going to be outright 

extracted from an Italian permanent establishment are deemed to be realized at 

their arm‟s length value, with the resulting capital gains being fully taxable in 

Italy. 

With respect to the application of tax treaties, the Italian legislation does 

not contain any specific provision concerning the entitlement to treaty benefits. 

The earlier cited provisions related to the so-called “fictitious interposition” as 

of Art. 37, Par. 3 of Presidential Decree 600/1973 are not considered to be 

vv Action brought on 15 th July 2009 – Commission of the European Communities v Kingdom of Spain, C- 

269/2009. 

ww In this respect, the Milan Branch of the Italian Institute of Certified Public Accountants has filed a formal 

complaint before the European Commission concerning the alleged incompatibility of the Italian tax legislation 

and freedom of establishment as guaranteed by Art. 43 EC Treaty.



applicable to the case where the recipient of the income has legal right to it under 

a non-simulated contract with the payer. 

In this respect, the only applicable provision in the case under analysis 

would be the general provision embedded in Art. 10, 11 and 12 of the OECD 

Model according to which the reduced withholding tax rate applies only if the 

recipient of the investment income (dividends, interests, royalties) is the 

beneficial owner thereof. 

In international tax law matters, the expression “beneficial ownership” has 

firstly appeared in the 1977 OECD Model Convention in Arts. 10 - 12. In this 

respect, authoritative international tax law scholarship agrees that a definition of 

the notion of beneficial ownership on an international plan should not be based 

on specific domestic law provisions, but rather, in a systematic interpretation of 

tax treaties xx . 

The OECD has tried to develop in its official documents said systematic 

interpretation and in this respect the OECD Commentary (sub Art. 12, Par. 4) 

generally foresees that “The term “beneficial owner” is not used in a narrow technical 

sense, rather, it should be understood in its context and in light of the object and purposes of the 

Convention, including avoiding double taxation and the prevention of fiscal evasion and 

avoidance.” 

On the other hand, in more specific terms, in the 1987 OECD Document 

“Double taxation Conventions and the Use of Conduit Companies”, it had been 

elaborated that agents, nominees and conduit companies, i.e., companies that, 

even though could formally be qualified as the owner, substantially acted in a 

fiduciary capacity on behalf of other persons, could not be qualified as beneficial 

owners. At the same time, it was made clear that the circumstance that the main 

activity of a company consisted in the holding of assets or rights, is not sufficient, 

per se, to automatically qualify it as conduit. 

Reference to OECD positions on the matter of beneficial ownership are 

unavoidable, as Italian tax treaties rarely provide for stipulative definitions of 

concept such as the one of beneficial ownership. 

A notable exception seems to be the Germany – Italy of 1989, where 

Point 9 of the attached Protocol actually provides a specific definition of 

beneficial ownership, stating that “the recipient of the (...) royalties is the beneficial owner 

(...) if he is entitled to the right upon which the payments are based and the income derived 

therefrom is attributable to him under the tax laws of both States”. 

xx In this sense, see D.B. OLIVER – J.B. LIBIN – S. VAN WEEGHEL – C. DU TOIT, „Beneficial Ownership‟, 

(2000) 7 IBFD Bulletin, 310.



In this respect, it has been set forth that such a clause should be 

considered as an autonomous treaty clause and thus be interpreted accordingly yy . 

In the lack of an Italian domestic law definition of the concept of 

beneficial ownership, the aforementioned definition represents an important 

reference as it can be seen by examining the few guidelines issued by the Italian 

Tax Authorities on the subject of beneficial ownership. 

In particular, in Circular Letter No. 306/E of 23 December 1996, the 

Italian Tax Authorities have set forth an interpretation according to which the 

beneficial owner should be considered as “the person to which income is attributable for 

tax purposes”. 

Such an orientation has been confirmed in subsequent guidelines (in 

particular, Ministerial Resolution No. 104/E of 6 May 1997 and, although less 

clearly, Ministerial Resolution No. 86/E of 12 July 2006), thus confirming that 

there is a mutual consistency between the definition of the beneficial ownership 

provided by Par. 9 of the Protocol to the Germany – Italy Tax Treaty and the 

perspective of the Italian Tax Authorities on the subject zz . 

Nonetheless, it should be remarked that Italian Tax Authorities have 

shown to have undertaken a strict outlook on matters of interposition, so that 

the status of beneficial owner may be denied to persons acting as intermediaries 

between the payer and the beneficiary, such as agents or a nominees. 

In this sense, a clear influence of the earlier cited 1987 OECD Report on 

Conduit Companies can probably be seen. 

With respect to the broader issue of treaty shopping, the inclusion of 

specific anti-treaty shopping clauses in Italian tax treaties is rather uncommon. 

The preferred approach in dealing with such issue is by adopting a “look – 

through” interpretative approach which is well served by the above described 

positions on beneficial ownerships and by an “abstinence” approach, according to 

which Italy avoids concluding tax treaties with tax havens or with Countries that 

offer particular benefits to companies and that may therefore domiciled there 

simply in order to act as conduits. 

A chapter apart should be devoted to the limitation on benefits clauses 

which are to be found in the tax treaty currently in force between Italy and the 

United States aaa dating back to 1984 as well as the new tax treaty signed back in 

yy See P. PISTONE, L’abuso del diritto nel diritto tributario internazionale, in V. UCKMAR (Ed.) Diritto tributario 

internazionale, III Edition, Padova, 2005, 871. 

zz A. BALLANCIN, „La nozione di beneficiario effettivo nelle convenzioni internazionali e nell‟ordinamento 

tributario italiano’, (2006) 1 Rassegna Tributaria, 209. 

aaa See also L. DELL‟ANESE, „L‟evoluzione della disciplina anti-abuso di trattato nelle convenzioni contro le 

doppie imposizioni sottoscritte dagli Stati Uniti‟, (1998) 3 Dir. prat. trib, 697.



1999 and recently ratified in Italy, which should imminently enter into force 

following the exchange of the instruments of ratification. 

In the 1984 Italy – US Convention, a limitation on benefits (hereinafter, 

L.O.B.) clause is included in Art. II of the Protocol to the Convention and, 

unlike other L.O.B.s to be found in other US treaties, it does not operate as a 

default rule but rather as a residual one, as it applies only if “the competent authority 

of the other Contracting State determines that either the establishment, acquisition or 

maintenance of such person or the conduct of its operations had as a principal purpose obtaining 

benefits under the Convention.” 

The clause only applies to legal persons that are residents of one of the 

Contracting States and only with respect to the application of treaty provisions 

concerning business profits, dividends, interests, royalties, capital gains and other 

income. The access to the treatment provided by the aforementioned treaty 

provisions is precluded unless “ more than 50% of the beneficial ownership of such person 

(or in the case of a company, more than 50% of the number of shares of each class of the 

company’s shares) is owned, directly or indirectly by a combination of one or more individuals 

who are residents of the United States; by citizens of the United States; by companies whose 

principal class of shares is substantially and regularly traded on a recognized stock market; or 

by the Contracting States.” 

The L.O.B. architecture found in the 1999 Italy – US Tax Treaty is more 

pervasive, even though, some of the more demanding and, according to critics, 

subjective anti-abuse clauses thereby originally contained, such as a “business 

purpose test” with respect to dividends, interests, royalties and other income have 

been eliminated from the treaty by means of a subsequent exchange of notes 

between Italy and the United States. 

The main innovation brought by the anti-abuse clauses contained in the 

“new” Italy – US Treaty under Art. 2 of the Protocol consists in the adoption of 

an approach based on detailed and specific tests rather than on a broad general 

anti-abuse clause. In particular, access to treaty benefits is limited to those 

companies that satisfy: 

� a “publicly traded” test (i.e., all shares in classes that represent more 

than 50% of voting power or value are regularly traded on 

recognized stock exchanges) or, alternatively, a “subsidiary of publicly 

traded test” (i.e, at least 50% of each class of shares, at every chain of 

control, is owned by five or fewer companies who qualify under the 

above);



� an “ownership test” (i.e., for at least half of the taxable year, at least 

50% of each class of shares are directly or indirectly owned by 

entities entitled to treaty benefits) and a “ (tax) base erosion test” (i.e., 

less than 50% of the company‟s gross income for a given fiscal year 

directly or indirectly accrues to persons who are not resident of 

either treaty country), aimed at ascertaining that the company is 

controlled by persons who are entitled to treaty benefits. 

F. What penalties are imposed after a determination that a taxpayer 

failed to obtain the tax benefits sought in a transaction? No penalties but Are 

there particular taxpayer penalties (civil or criminal) relating to tax avoidance 

transactions? NO What is the standard for imposition of the penalty? Are these 

penalties monetary? Are safe-harbors provided to enable a taxpayer to avoid 

these penalties (such as disclosure, reliance upon published guidance or decisions, 

reliance upon the advice of an attorney or other adviser)? NO 

The very wording of Art. 37 – bis of Presidential Decree No. 600/1973 foresees 

that Tax Authorities have the power to disregard those transactions and legal 

arrangements that fulfill the requisites for being considered tax avoiding. It 

should however be clarified that such disregarding can only be set forth by Tax 

Authorities and exerts its effects exclusively towards the latter, while the 

contractual implications of a transaction which is proven to be a tax avoiding one 

are left unscathed. Such a conclusion appears to hold true, even though, for the 

sake of completeness, it should be reported that a few decisions of the Italian 

Court of Cassation, dating back to recent years, have somewhat reversed this 

trend, by foreseeing that a legal arrangement (or a set of legal arrangements) can 

be declared null and void for civil law purposes if it amounts to tax avoidance or 

abuse of tax law bbb . 

Following the introduction of the G.A.A.R., tax avoidance is a sanctioned 

behavior, although the sanctions have a merely restitutory nature towards the 

Treasury, ccc while no explicit additional administrative or criminal penalty is 

foreseen, even though there has been a debate among scholars concerning the 

bbb In this sense, see, in particular, Italian Court of Cassation, Decision No. 20816/2005 

ccc F. MUCCIARELLI, „Abuso del diritto, elusione fiscale e fattispecie incriminatrici‟, in G. MAISTO (Ed.), 

Elusione ed abuso del diritto tributario, Milano, 2009, 436.



possible criminal law implications of a tax avoiding behavior ddd . 

In particular, the taxpayer who, following to a legal proceeding, is found 

having put into place a tax avoiding behavior is bound to pay the difference 

between the taxes actually paid, if any, as a result of the tax avoiding 

transaction(s) put into place and the tax burden which should have been paid 

whereas tax rules had not been circumvented and an undue tax saving obtained. 

Interests are added to such an amount, but no specific actual penalty or 

surcharge is inflicted. 

Such an approach with respect to applicable “penalties” seems to have been 

extended by the Italian Court of Cassation also to the latest “abuse of rights” 

legacy eee . 

It should be remarked that, even though a tax avoiding scheme is the 

result of a “cooperation” among more parties, additional taxes and interests 

resulting from a G.A.A.R. based tax assessment must be paid directly by the 

taxpayer, while third parties involved in the transaction may file a request for 

reimbursement of additional taxes and sanctions resulting from the G.A.A.R.- 

based assessment, in so far as such taxes were borne by such third parties under 

the transaction as originally devised. 

V. What role, if any, does statutory interpretation play in the determination or 

adjudication of controversies involving tax-avoidance transactions? Is a 

“substance over form” analysis (in which the adjudicator ignores or collapses 

disparate steps or transactions in order to give effect to the overall result) 

employed? Please describe this in detail. Is statutory interpretation an adjunct to 

the rules described in IV. above? Is it applied in lieu of or as a precedent to 

application of the standards, rules, or regulations described in IV. above? 

As earlier mentioned, statutory interpretation, carried out, in particular by the 

Italian Court of Cassation and centered on the application of a doctrine of abuse 

of rights largely predates the introduction of a G.A.A.R. in the Italian system. 

Following the introduction of a formalized G.A.A.R., it seemed that the role of 

an extensive statutory interpretation had lost its raison d’être. 

Such an orientation has however recently regained weight on the Italian tax 

agenda, leading to an extremely lively debate among scholars and practitioners 

ddd See, in particular, F. GALLO, „Rilevanza penale dell‟elusione‟, (2001) Rass. trib., 321. 

eee See, in particular, Italian Court of Cassation, Decision No. 12042/2009.



alike fff . 

In a recent series of decisions, culminating in 2008 and 2009, the Court of 

Cassation introduced a new judicial anti-abuse principle into the Italian tax 

system. According to this principle the transactions carried out by the taxpayers 

which have the exclusive goal of obtaining a tax benefit are deemed to constitute 

tax abuse, and therefore the tax effects of such transactions can be disregarded 

by Tax Authorities. ggg 

The arguments used by the court in virtually all the cases is based on a 

common structure which can be summarized as follows. There is no doubt that 

the taxpayer can freely choose to carry out its activities in the most effective way 

to reduce the tax burden, as the freedom to conduct private economic activities is 

expressly protected by Article 42 of the Italian Constitution. The limit to the 

exercise of such a freedom is the inappropriate use of legal arrangements which 

amount to an abuse of law (“abuso della forma giuridica”). Such an abuse results 

from the selection of a particular legal arrangement whose exclusive goal is to 

obtain a tax reduction, and therefore is an abuse of a fundamental right (the 

freedom to conduct private economic activities) provided for by the domestic 

legal system and community law. hhh 

The judicial anti-abuse principle has been introduced in a system already 

endowed with a G.A.A.R. and many other specific anti-avoidance rules. Given 

that the Courts in Italy generally adopt a literal approach to application of tax 

laws, the introduction of such a judge-made anti-abuse principle amounts to a 

significant departure from usual practice. This occurrence has triggered 

criticisms from commentators, based on two principal arguments. First, it is said 

that the judicial creation of an anti-abuse principle violates the so-called “principle 

of legality” in tax matters, enshrined in Article 23 of the Italian Constitution, 

fff For an introductory overview in English language, see R. CORDEIRO GUERRA, P. MASTELLONE, „The 

Judicial Creation of a General Anti-Avoidance Rule Rooted in the Constitution‟, forthcoming in European 

Taxation. Among the scholarly contributions to the current debate in Italian see, inter alia, A. MANZITTI, I. 

VACCA, R. LUPI, D. STEVANATO, „Contrasto all‟elusione e incertezza del diritto‟, (2009) 1 Dialoghi Tributari, 

32; R. LUPI – D. STEVANATO, „Tecniche interpretative e pretesa immanenza di una norma generale 

antielusiva‟, (2009) 6 Corr. trib., 403; A. LOVISOLO, „Abuso del diritto e clausola generale antielusiva alla ricerca 

di un principio‟, (2009) I Riv. dir. trib., 89; G. MARONGIU, „Abuso del diritto o abuso del potere?‟, (2009) 13 

Corr. trib., 1077. 

ggg Court of Cassation, Decision No. 221221/2006 (direct taxes); Court of Cassation, Decision No. 11226/2007 

(direct taxes); Court of Cassation, Decision No. 18374/2007(stamp duty); Court of Cassation, Decision No. 

18218/2007 (excises); Court of Cassation, Decision No. 8772/2008 (direct taxes); Court of Cassation, Decision 

No. 10257/2008, (direct taxes); Court of Cassation, Decision No. 14509/2008 (excises); Court of Cassation, 

Decision No. 23633/2008 (direct taxes); Court of Cassation, Decision No. 30055, 30056 and 30057/2008 (direct 

taxes). 

hhh See for example: Court of Cassation, Decision No. 8772/2008.



according to which taxes can be levied only by operation of law. Second, it has 

been argued that the discretionary powers granted by the anti-abuse principle to 

tax agencies as well as tax courts undermine the basic principle that tax laws be 

certain in their purpose and meaning. 

In the cases decided in 2005, the Court of Cassation held that a contract 

used by the taxpayer to obtain an “unlawful” reduction of taxes could be declared 

void, with the consequence that the tax benefits resulting from such a contract 

could be disregarded. The judicial anti-abuse doctrine was developed further in 

2008, when it was extended to cases in which the transaction amounts to an 

abuse of tax law rather than simply a violation of tax law. It is worth noting that 

while initially it was held that it was upon the taxpayer to prove that the 

behaviour was not of an abusive nature, iii in the most recent cases it has been 

held that it is upon the Tax Authorities to prove that the behaviour was abusive. jjj 

In the cases involving the abuse of tax law, the Court of Cassation has 

expressly acknowledged that a principle of law was being created. In continental 

law principles of law are not just generic statements or policy guidelines but are 

binding in respect to Tax Authorities and taxpayers as well. 

For example, the Court of Cassation has developed in recent years a 

principle according to which the change of the position of Tax Authorities given 

in a ruling or in a circular letter on which a taxpayers had previously relied does 

not have any effect on the taxpayer. Thus the anti-abuse principle is not a policy, 

but is a binding rule, obviously not aimed at regulating a specific transaction, but 

a general clause aimed at identifying an abuse of tax law. The most essential 

feature of such a clause is that it constitutes a kind of “empty box” in which, on a 

case-by-case basis, Tax Authorities and tax courts can include the most diverse 

transactions when they trespass the boundaries of the normal use of tax laws. 

The anti-abuse principle has an “open texture”, kkk meaning that it is applicable to a 

potentially unlimited range of situations. 

The first pillar of the Court of Cassation in developing the anti-abuse 

principle is EU tax law: the Court expressly states that the anti-abuse principle is 

newly created law imposed by “Halifax” case and other cases decided by the 

European Court of Justice (ECJ), lll and that this principle applies to all areas of 

iii Court of Cassation, Decision No. 10257/2008. 

jjj Court of Cassation, Decision No. 25374/2008. 

kkk This concept of “open texture” or “penumbra” has been coined by H.L.A. HART. ID., The concept of law, II 

Edition, 1961, Oxford. 

lll In particular, ECJ Case C-223/03, Decision of 21 st February 2006, “University of Huddersfield Higher Education 

Corporation v HMRC”; ECJ, Case C-425/06, Decision of 21 st February 2008, “Ministero dell'Economia e delle Finanze v 

Part Service srl”; ECJ, Case C-279/93, Decision of 14 th February 1995, “ Finanzamt Köln-Altstadt v Schumacker”; Case



tax law, from indirect taxes such as VAT or stamp duty to direct taxes such as 

personal or corporate income taxes. 

The case law of the ECJ clearly establishes that the ECJ‟s goal is not to 

define what should be a common EU tax policy concerning tax avoidance and 

tax abuse, but to set limitations to potentially overreaching domestic antiavoidance 

rules impacting negatively on fundamental freedoms. For example, the 

ECJ has made it clear that, although tax-driven transactions do fall under the 

reach of anti-avoidance domestic rules, there cannot be generic presumptions 

such as that the establishment of a foreign subsidiary is for the purposes of tax 

avoidance. mmm The ECJ has also established that domestic legislation restricting 

freedom of establishment is justified only if it prevents wholly artificial 

arrangements. nnn Within this scenario, domestic legislators and courts have the 

power to enact anti-avoidance clauses, but it is up to the national judges to 

decide, on a case-by-case basis, whether the guidelines set forth by the ECJ have 

been violated. 

It should however be remarked that in three cases decided at the very end 

of 2008 ooo , the Court of Cassation abandoned the “top down” approach based on 

community law and held that the anti-abuse principle is derived directly from the 

principle of ability to pay enshrined in Article 53 of the Italian Constitution. ppp 

This reconstructive shift is possibly due to the fact that the judges of the supreme 

Italian Court realised that the “top down” community approach might be flawed. 

Moreover, the anti-abuse principle encased in the Halifax legacy was designed to 

apply to VAT, so that the automatic extension to non-EU harmonised direct 

taxation raised some perplexities with respect to the application of the principle 

of legality and to the application of the safeguards provided by the Taxpayer‟s 

Bill of Rights. 

According to the latter aforementioned three decisions, Art. 53 of the 

Constitution is the basic norm from which all the statutory norms of the tax 

system are derived, including those which attribute benefits to the taxpayers, with 

the consequence that the taxpayer who gains a benefit from a misuse or abuse of 

tax legislation violates the ability to pay principle. 

C-330/91, Decision of 13 th July 1993 “The Queen v IRC ex parte Commerzbank “; ECJ, Case C - 250/95, Decision of 

15 th May 1997, “Futura Participations SA v Administrations des Contributions”. 

mmm Case C-196/04, Decision of 12 th September 2006, “Cadbury Schweppes plc v Commisioners of Inland Revenue” , fn. 

13 at [50]. 

nnn Ibid., fn. 13 at [51]. 

ooo Court of Cassation, Decisions No. 30055, 30056 and 30057/ 2008. 

ppp Article 53 provides that “all taxpayers must contribute to public expenditures in accordance with their ability 

to pay”.



Moreover, it does not seem inappropriate to state that the comparative law 

efforts of the Italian Court of Cassation have played a major role in introducing 

the abuse of rights principle as it has recently appeared in the Italian tax arena. In 

particular, the Italian judges have carried out an in-depth discussion of the 

judicial anti-avoidance approaches of other countries, such as “substance over form” 

in the United States, “abus de droit” in France, “Missbrauch von rechtligen 

gestaltungmoglichkeiten” in Germany qqq . Based on this survey, the judges have 

concluded that the earlier cited different approaches fundamentally express a 

common rule, and therefore constitute a “common core” of tax systems. 

In this respect, the current Italian case law on abuse of rights may well 

contribute to the identification of a “tax cryptotype” within the array of the 

possible policy tools against tax-avoidance. 

A “tax cryptotype” is an un-written rule quite often expressed by judicial 

principles or shared values, which can also be defined as “mute tax law”, since it is 

not spelled out in statutory materials. rrr The most basic tax cryptotypes (the 

“foundational cryptotypes”) constitute the “tax mentality” in a given country and 

heavily affect the development of practical tax solutions. sss 

In the case of the anti-abuse substantive approach currently sported by the 

Italian Court of Cassation, one can witness a cultural transition in which a 

foundational cryptotype of the Anglo-Saxon approach to the tackling of tax 

avoidance is imported by the judges of a Country belonging to a continental 

tradition: the Anglo-Saxon anti-avoidance cryptotype, based on a “substance over 

form” analysis of transactions, is imported in Italy, where the current cryptotype 

is, on the contrary, to permit any tax behavior (including aggressive tax planning) 

unless expressly limited by specific anti-avoidance rules. 

The interesting feature with respect to recent the abuse of rights doctrine 

is that an un-written tax principle implicitly used in foreign countries is on the way 

to become an operative rule in the importing country through what appears 

being an outright judicial tax transplant, that is, the reception by the tax courts of 

a country of judicial principles developed by case law in another country, in the 

qqq As foreseen by Section 42 of the Abgabenordnung. 

rrr G.J. POSTEMA, „Implicit law‟, (1994) 13 Law and Philosophy, 361; R. SACCO, „Mute Law‟, (1995) 43 Am. J. 

Comp. L., 455. 

sss M. VAN HOECKE, M. WARRINGTON, „Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a 

New Model for Comparative Law‟, (1998) 47 Int'l & Comp. L.Q., 495; M. WAXMANN, „Teaching Comparative 

Law in the 21st Century: Beyond the Civil/Common Law Dichotomy‟, (2001) 51 J. Leg. Ed., 305; M. 

REIMANN, „Droit positif et culture juridique. L'americanisation du droit europeen par reception‟ (2001) 45 

Archives de philosophie du droit, 61.



vein of the broader concept of legal transplant originally coined by W.A.J. 

Watson ttt . 

When seeking to reveal deep structures of convergence uuu , the comparative 

tax scholar should adopt a common core approach. It appears that the Italian 

Court of Cassation has accepted that “abuse of tax law” constitutes a common 

core, and therefore perhaps this represents a deep structures of convergence 

among different countries. This convergence is brought about by the circulation 

of a common tax model, namely the “substance over form” approach. 

With reference to the Italian experience, such an orientation is clearly 

mirrored by a recent decision of the Court of Cassation vvv which could probably 

be used as a case study for effectively depicting the Court‟s “New Deal”. In said 

case, the Court applied a very practical attitude to anti-avoidance, by looking at 

the actual economic structure of the transaction, denying the existence of tax 

avoidance and tax abuse in the case under review on the basis of such an analysis. 

The facts of the decision in 2009 are the following. Piaggio and Daihatsu 

had entered a corporate joint venture agreement according to which the 

corporate joint venture. (P&D) basically did not own equipment as Piaggio was 

allowing P&D to use it own equipment for the production at no charge. The tax 

office denied tax depreciation and other tax deductions for P&D on the ground 

that it did not own the equipment in an abusive transaction. The Court of 

Cassation first acknowledged the existence of the anti-avoidance principle as 

defined by its own previous cases, but eventually held that the anti-avoidance 

principle could not be applied in the case under review as the arrangements 

neither amounted to tax avoidance nor were abusive. As a consequence the 

Court of Cassation held that tax depreciation and other tax deductions were 

allowed for P&D. 

The Court of Cassation has reached this conclusion by pragmatically 

looking at the economic and business structure of the joint venture agreement as 

a whole and acknowledging that such an agreement did pursued truly economic 

and market-oriented goals; the main point of these analysis are the following: 

a) in a joint venture agreement there are economies of scale and 

therefore a set of interlocked agreements does not constitute in itself 

avoidance or abuse of tax law; 

ttt W.A.J. WATSON, Legal Transplants: An Approach to Comparative Law, Edinburgh, 1974. 

uuu On convergence and divergence: P. LEGRAND, „European Legal Systems are not Converging‟, (1996) 52 Int'l. 

& Comp. L.Q., 81; J.H. MERRYMAN, „On the Convergence (and Divergence) of the Civil Law and the Common 

Law‟, (1981) 17 Stan. J. Int'l L., 357. 

vvv Italian Court of Cassation, Case No. 1465/2009.



b) costs are tax deductible even if not directly matched by 

corresponding income produced by the same company bearing the 

costs; 

c) a transaction is abusive of tax law when the abusive purpose is the 

exclusive purpose of such a transaction; 

d) a commercial transaction with valid business reasons can 

legitimately lead to tax savings. 

In conclusion, this decision confirms that the anti-abuse principle operates 

on a case-by-case analysis of the facts of the transaction and commits the Court 

of Cassation in the future to factual analysis on economic substance and valid 

business reasons. 

Although it is difficult to exactly foresee how the abuse of rights doctrine 

will interact with the existing G.A.A.R., nonetheless, it seems reasonable to 

assume that the G.A.A.R. and the “abuse of rights” test will be maintained as two 

separate anti-avoidance tools, with the former applying as the default rule and the 

latter serving a suppletive purpose: only those arrangements of taxpayers which 

do not fall under the legislative G.A.A.R. and specific anti-avoidance rules will be 

targeted directly by the anti-abuse principle, so that the anti-abuse principle 

should operate as a filler for the gaps left open by the G.A.A.R. and specific antiavoidance 

rules. 

VI. Does the reported country impose disclosure requirements for taxpayers 

entering into tax avoidance transactions? Please describe these in detail, 

including their origins and subject matter. How long have these 

requirements existed? NO 

VII. Are attorneys or other tax advisors obligated to disclose or register their 

own or their client‟s participation in tax avoidance transactions? Please 

describe these obligations, if any, in detail, including the particulars of any 

filing requirements. Are these requirements recent? NO 

VIII. Are penalties imposed (civil or criminal) for the failure of taxpayers or 

their advisors to comply with reporting, registration, or disclosure 

requirements? N.A. 

IX. Describe any rules of professional responsibility or other ethical rules 

governing attorney practice or taxpayer-adviser practice that relate



particularly to participants in tax avoidance transactions. Do special 

standards of practice relate to advisers to taxpayers that seek entry into 

tax-avoidance schemes or transactions? N.A. 

X. Does the reported country address the issue of the so-called “tax shelter?” 

What is the definition, if any, of a tax shelter? Please provide an example 

of a famous, popular, or recent tax shelter in the reported country. Please 

detail the country‟s response (legislative, judicial, or administrative) to 

these arrangements. 

Unlike what happens in AngloSaxon jurisdictions, tax shelters as such are 

not addressed separately from other forms of tax avoidance in Italy. This 

circumstance is somewhat consistent with the historical development of antiavoidance 

legislation in Italy, which is the result of scholarly debate more than of 

a way to deal with sophisticated tax avoidance scheme concocted by shrewd and 

skillful practitioners. Nevertheless, when examining the judicial decisions issued 

on the application of the G.A.A.R. and the administrative rulings issued by Tax 

Authorities, it can clearly be seen that there have been some re-occuring fads in 

fashion somewhat akin to the tax shelters market in other Countries. 

Among the different trends, one of the most influential ones are the so – 

called “dividend washing” practice. 

Dividend washing is typically carried out by acquiring participations, 

exacting the deriving (tax exempted) dividend and subsequently reselling the 

participation at a lower price thus benefitting from a deductible capital loss. Even 

though a specific anti-dividend washing provision, which makes it impossible to 

double dip from substantial dividend exemption (taxable for only 5% of their 

amount) and the deductibility of capital losses on participations (assuming that 

participation exemption does not apply due to the non-fulfillment of the holding 

period requirement), has recently be introduced under Paras. 3 – bis and 3 – ter of 

Art. 109 the I.T.C. www , dividend washing has been massively used as a tax 

minimizing device, often with no adverse consequence. It could be argued that 

the recent arrêts of the Court of Cassation which have mirrored a rise of the 

“abuse of rights” test have been possibly influenced by the need to condemn 

dividend washing notwithstanding the fact that Art. 37 – bis of Presidential 

Decree No. 600/1973 did not expressly deal with it at the time when the 

www And somewhat anticipated by Circular Letter No. 21/2006.



transactions had been put into place xxx . 

However, listing and examining all the tax minimizing solutions that have 

been put into place by taxpayers over the recent years would probably be a 

useless exercise due to the constantly evolving and protean nature of these 

behaviors. 

A. Are special penalties imposed on taxpayers who invest, or otherwise 

participate, in tax shelters? N.A. 

B. Are special penalties imposed on the tax advisers? N.A. 

C. Please detail any disclosure requirements (imposed on either the 

taxpayer or the tax adviser) relating to tax shelters. N.A. 

XI. Please detail current efforts to reform the reported country‟s rules, 

regulations, case law, etc., concerning the regulation of tax avoidance 

transactions. Has any responsible body issued a white paper on this topic? 

The main item of debate on the current Italian tax agenda at large is undoubtedly 

the judge made “abuse of right” principle and the actual implication that the 

consistent implication of such a legacy may exert on the assessment powers of 

the Tax Authorities and on the decisions of the lower courts. 

The main form of criticism consist in the judge made nature of such a 

principle which would allegedly consist in a violation of the legality principle 

enshrined in Art. 23 of the Constitution. 

In this respect, it is not clear whether the “abuse of rights” doctrine will 

remain a cryptotype or will be manipulated in order to be fitted in a specific 

provision, in accordance with the common legislative practice found in 

Continental Legal Traditions. If this were the case, the legislative process may 

lead to the introduction of a “Super G.A.A.R.”, combining the analytical 

approach of the currently existing Italian G.A.A.R. with the open texture of the 

“abuse of rights” test. 

The proponents of this legislative amendment yyy are doing so as they 

believe that a cryptotype would be a too dangerous weapon in the hands of the 

Tax Authorities. It is reasonable to anticipate that the latter will resort to the 

xxx See also P. PICCONE FERRAROTTI, „Sull‟applicabilita` dell‟art. 37, 3o co., del d.p.r. n. 600 del1973 al 

cosiddetto dividend washing’, (2000) 11 Rassegna Tributaria, 933. 

yyy Proposta di Legge N. 2521, di iniziativa del Deputato M. Leo.



anti-abuse principle ad libitum by using it as a general standard for tax audits when 

assessing the general population of tax payers. As a result, a dramatic increase of 

tax litigation will be probably mirrored in the next few years. Whereas Tax 

Authorities will use the “abuse of rights” test improperly, we shall hope that the 

taxpayers will be awarded justice at least in the higher Courts, so that this 

worrying unjustified inflation of tax litigation will be brought back to order in the 

long run. 

In this respect, it is vital to introduce a rule according to which litigation 

expenses must be borne by the losing party in cases in which Tax Authorities 

invoke the anti-abuse principle. The function of this procedural rule would be 

to ensure that the anti - abuse principle is not abused by Tax Authorities, buy 

attributing to them the economic risk of losing the case. 

The Bill Proposal hereby mentioned has two main aims: 

� defining the actual scope of application of the “abuse of rights” test; 

� introducing specific procedural rules in relation to tax assessments 

involving the use of the “abuse of rights” test. 

With respect to the former issue, the Proposal would remarkably broaden 

the scope of application of the current version of Art. 37 – bis of Presidential 

Decree No. 600/1973. In particular, the application of the G.A.A.R. would be of 

general import and would not be restricted to a specific set of transactions. 

Additionally, the G.A.A.R. would apply not only to income taxes but to taxes of 

every kind. On the other hand, the joining of the current version of the G.A.A.R. 

with an anti-abuse interpretation is not achieved by providing a more general 

formulation of the current Para. 1 of Art. 37 – bis of Presidential Decree No. 

600/1973, but, rather, by simply foreseeing that the “provision applies to any 

controversy tax avoidance, as well as the circumvention and the abuse of tax rules”. 

With respect to the latter issue, the Proposal sets forth that: 

� Tax Authorities need to distinctly identify in the tax assessment the tax 

rules that have been circumvented by the taxpayer; 

� The new G.A.A.R. cannot be applied ex officio by jurisdictional organs but 

can only be detected by Tax Authorities and notified in a specific 

assessment notice. 

� The excess tax burden that would be re-determined on the head of the 

taxpayer cannot be included in the collection roll before a decision adverse 

to the tax payer has been issued by a Provincial Tax Court (such a 

guarantee already applies to the current version of the G.A.A.R., while 

these procedural profiles have not been settled with respect to the “abuse of 

rights” test).



� In no case can the detection of an abusive behavior on the head of the 

taxpayer lead to the application of criminal sanctions. 

� The procedural implications brought by the amended legislation would be 

immediately applicable also to pending cases. 

Further relevant stances of the Bill Proposal concern the role of tax 

mitigation or, more adherently to the Italian tax jargon, of forms of “legitimate tax 

savings” which should not be obliterated by the new anti-avoidance climate 

introduced with the adoption of the “abuse of rights test” by the Court of Cassation: 

not all forms of tax savings are to be condemned but only those that rely on the 

deployment of a distorted use of the legal arrangements that are made available 

to the taxpayer in breach of the bona fide relationship that should be maintained 

between the Lawmaker, the Tax Authorities and the taxpayer. 

As a conclusion, the Bill Proposal earlier outlined does not really add any 

new element to the current debate but it appears as a way to broaden the scope 

application of the G.A.A.R. to the extent of turning it into a Generalklausel in the 

German tradition as well as coordinating the existing safeguards provided to the 

taxpayer with respect to the current G.A.A.R. with the introduction of such 

Generalklausel.

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SOCIETAS DELINQUERE POTEST? THE ITALIAN SOLUTION 

CRISTINA DE MAGLIE * 

1.1 INTRODUCTION: THE TRADITIONAL APPROACH 

Only in 2001 did the Italian legislator introduce a model for the direct 

responsibility of collective entities into its legal system. In fact, Italian law has 

always been shy of the principle of corporate criminal liability. There are 

various and deep-seated reasons for its ambivalence and for its attachment to 

the principle of societas delinquere non potest. These are to be found, in particular, 

in the Italian Constitution. 

“Criminal law is created for man.” 1 This objection raises a fundamental 

principle of criminal policy as a barrier to the criminal responsibility of legal 

persons. Criminal law, it is said, is aimed at physical persons, at spiritual man, 

who is in command of a faculty for self-determination, a capacity to choose 

between good and evil, and a creative and prudent intelligence, which allows 

him to freely fulfill his potential. Legal persons are legal fictions and so lack 

these attributes of personhood. Thus, they are not legitimate objects of the 

criminal law. 

The most striking demonstration of this differentiation between natural and 

legal persons in Italian law is the existence of art. 197 Criminal Code, which 

establishes only a subsidiary civil responsibility of legal persons for crimes 

committed by their representatives, executives, or employees whether the 

offense constitutes a violation of the duties related to the professional 

qualifications of the offender or has been committed in the interests of the 

legal person. 2 A more basic objection refers back to art. 27(1) Italian 

Constitution, which establishes the principle that criminal liability is personal 

in nature and reflects the view that criminal law has an “undeniably ethical 

imprint.” 3 Even more than the concept of guilt, the concept of the personal 

nature of criminal liability presupposes a set of physiopsychic factors that can 

only be identified in physical persons. The imputation of criminal 

responsibility requires a psychological connection, a guilty intent; “personal” 

liability is exclusively the liability that is filtered through subjective 

consciousness. In other words, the imputation of criminal responsibility 

necessarily presupposes “a person” with an individual “history” who has the 

capacity to reflect on the commission of a crime. To admit the principle of 

* Cristina De Maglie is Professor of Criminal Law, University of Pavia and Fellow of the Institute for Legal 

Research, University of California, Berkeley. 

1 Ramella 1885, 960. 

2 See Alessandri 1984, 1 et seq. and 107 et seq. 

3 Romano 1995, 1036.



corporate criminal liability, would be to irremediably violate the principle of 

the personal nature of the criminal act that emerges in art. 27, without taking 

into account the fact that, by nature, legal persons are incapable of suffering 

the consequences of the criminal act. 

Hence, the lack of a structured personality, such as would permit evaluations 

of the juristic person‟s past and a prognosis about its likely future conduct, 

frustrate the re-educational aspirations of art. 27. That is, the principle of 

culpability does not allow us to substitute the subject that commits the crime 

for the one that suffers the criminal consequences. Moreover, applying a 

criminal sanction to the juristic person would negatively and unjustly impact 

innocent third parties (e.g., minor partners who were uninvolved in, or even 

opposed to, the decisions in question) (the spillover effect). 4 This would 

undermine the well-accepted principle that each person should suffer the 

consequences of his/her own actions to a very large extent indeed. 

Even recently, art. 27(1) has been considered “an insuperable obstacle” to the 

legitimization of criminal liability for legal entities 5 and has, in fact, provided 

aggressive and unscrupulous corporations with a de facto blanket of 

immunity. 

1.2 THE 2001 REFORM 

In Italy, these objections were dealt with in a 2001 program of law reform. 

Legislative Decree No. 231 of June 8, 2001, on the disciplining of the 

administrative responsibility of legal persons, corporations, and associations, 

including those lacking legal personality (Disciplina della responsabilità 

amministrativa delle persone giuridiche, delle società e delle associazioni anche prive di 

personalià giuridica), introduced into our system a model of direct administrative 

liability for collective entities. There were international motivations for the 

introduction of the legislation: the OECD Convention on Combating Bribery 

of Foreign Public Officials in International Business Transactions (OECD 

Convention on Foreign Bribery) 6 and the European Union‟s convention on 

the protection of its financial interests (also know as the “PIF Convention”), 

which entered into force in 1997. 7 At the national level, art. 11 Delegated Law 

No. 300 of 2000, which deals with the “rules concerning the administrative 

liability of legal persons, of companies, and associations even without legal 

status,” created its own impulsion for reform. 

4 Coffee 1981, 401. 

5 Romano 1995, 1036. 

6 OECD Convention on Combating Bribery of Foreign Public Officials in International Business 

Transactions, November 21, 1997, into force February 15, 1999. 

7 Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the Protection of 

the European Communities‟ Financial Interests, July 26, 1995, into force October 17, 2002, OJ No. C. 

316, November 27, 1995, 49 et seq.

Cristina De Maglie 

Societas Delinquere Potest? The Italian Solution 

The 2000 Preliminary Reform Project for the General Part of the Criminal 

Code (the so-called “Grosso Project”) then opened the way for a new 

corporate liability provision. It dedicated an entire section (section VII) to the 

liability of legal persons and its attached report acknowledged that reasons 

external and internal to the Italian legal system were creating pressure on the 

legislator to introduce corporate criminally liability rules. Its comparative 

analysis showed that the criminal liability of legal persons was, so to speak, a 

“forced decision” due to the need for the harmonization and coordination of 

Italian law with other European legal systems. 8 Further, in its view, the 

criminal liability of legal persons was not incompatible with the basic 

principles of the rule of law; instead it responded to the need for rationality, 

equity, transparency, and balance in the system. Hence, by the time of the 

2001 decree, reform “could no longer be put off.” 9 

However, the leaders of the Grosso Project chose not to define this liability as 

“criminal” but preferred to introduce a “tertium genus” liability regime 

“anchored to the necessary requisites of criminal law (the commission of a 

crime) and governed as well by the strong guarantees of criminal law.” 10 

The ideological gap left by the Grosso Project provided the impetus for the 

Legislative Decree No. 231 of 2001, as it called for a timely and multifaceted 

regulatory framework for the direct liability of legal persons. Legislative 

Decree No. 231 itself is a truly complex and complete microsystem of rules 

on corporate liability; its eighty-five articles thoroughly deal with the problems 

of organizational liability in terms of both substance and procedure. A strong 

message was thus sent to theorists and legal experts that, on the one hand, the 

legislator‟s ideological resistance, as based on the principle of societas delinquere 

potest, was weakening, and, on the other hand, that the foundation had been 

laid for the construction of a “corporate criminal law,” which was 

independent of, and detached from, the Italian Criminal Code. 11 

In the next section, I outline the framework of the substantive aspects of the 

laws and regulations in this area. 

1.3 WHICH FORM OF LIABILITY FOR COLLECTIVE ENTITIES? 

Crucial to the analysis of Legislative Decree No. 231 of 2001 is the 

determination of the nature of its concept of corporate liability. The decree 

plainly speaks of the “administrative liability” of legal persons. But this form 

of administrative liability differs in several ways from the general system of 

administrative liability outlined in Law No. 689 of November 24, 1981, 

8 Department of Justice (2000), para. 7. 



11 Paliero 2008, 1516.



concerning modifications to the penal system (Law No. 689 of 1981). The 

report accompanying the decree refers to “a tertium genus” that unites the 

essential features of the criminal and administrative systems “in the attempt to 

adapt the reasons behind preventive effectiveness (i.e., the capacity of the law 

to prevent crimes) with those, even more important, behind maximum 

guarantees (i.e., respect for the basic principles of Criminal Law)”. 12 

These labels, which are criticized as being the result of the “fuzzy logic,” 13 

have profoundly irritated the guardians of traditional legal dogmatic purity. 

They have become embroiled in long discussions about the “real legal nature” 

– criminal or administrative – of corporate liability and so sparked a seemingly 

never-ending debate that tends to equate problems concerning the 

construction of legal language with dogmatic, substantive problems. There is 

thus mention of “liability defined as administrative but which in reality is 

criminal to all extents and purposes”; 14 of an “institution that, in its structure 

and function, is administrative in name only, appearing, with a probability that 

borders on certainty, to mask the criminal liability of the juristic person”; 15 of 

“labeling fraud”; 16 of the “substantially criminal nature of corporate liability”; 17 

of “a third track for criminal law alongside punishment and security 

measures.” 18 

How are these debates to be assessed? The supporters of the criminal nature 

of corporate liability have two strong arguments: the indirect and tenuous link 

between the liability of the organization and the commission of the crime and, 

above all, the fact that recognition of this liability is left entirely to the 

judgment of the criminal court. These are indeed important indications that 

we are dealing with the categories and guarantees of the criminal law and 

availing ourselves of all its coercive instruments. It should be noted that the 

Supreme Court of Cassation recently attempted to definitively resolve the 

dispute with its statement that, “Notwithstanding the nomen juris, the new, 

nominally administrative liability conceals its substantially criminal nature.” 19 

However, one can counter that the system outlined in Legislative Decree No. 

231 of 2001 has other and no less important attributes from which the 

administrative nature of the liability can be deduced with equal certainty. 

Above all, supporters of the administrative nature of liability argue that the 

label of “administrative liability” must be taken seriously since it expresses the 

will of the legislator and important structural considerations, i.e., that it is the 

name of the sanction that determines the nature of the sanction and not vice- 

12 Department of Justice (2001), para. 1.1. 

13 Kosko 1993. 

14 Paliero 2001, 86. 

15 Musco 2001, 8. 

16 Ibid. 

17 De Simone 2002, 79. 

18 De Vero, 1167. 

19 Corte di Cassazione, Sez. II, January 30, 2006, n. 3615, Jolly Mediterraneo.



versa. In addition to other arguments that can be made 20 , this argument 

speaks strongly in favor of the non-criminal nature of corporate liability. 

The foregoing analysis stops me from locating the institution established by 

Legislative Decree No. 231 of 2001 neatly in either penal or administrative 

law. If we do not wish to accept the ambiguous label of “tertium genus” but 

cannot manage to rid ourselves of the need to classify, we can apply the label 

“liability for criminal offenses”: this formulation identifies the gap in the legal 

framework, which the new laws seeks to fill, it evokes the prescriptive content 

of the law, and it makes clear that sanctions are part of the new institution. It 

therefore represents a dogmatically neutral formula. 

1.4 TYPES OF OFFENSES 

Comparative analysis reveals different systematic answers to the question of 

which crimes can be imputed to a corporation. 21 In Italy, Legislative Decree 

No. 231 of 2001 originally applied corporate administrative liability exclusively 

to the crimes of bribery, corruption, and fraud. This was a declaredly 

minimalist choice, which strongly diminished the practical impact of the law. 

After 2001, a series of reforms widened the range of crimes for which 

corporations could be held liable. Between 2001 and 2005, Law No. 409 of 

2001 established liability for fraud involving money, credit cards, and revenue 

stamps; 22 Law No. 61 of 2002 extended the liability of organizations to 

financial crimes; 23 Laws Nos. 7 and 228 of 2003 24 did the same (respectively) 

for the crimes of terrorism and slavery; and Law No. 62 of 2005 provided for 

liability in cases of market abuse. 25 More recently, Law No. 7 of 2006 26 has 

provided for the liability of legal persons for female genital mutilation and 

Laws Nos. 231 27 and 123 of 2007 28 have dealt (respectively) with the handling 

of stolen goods and money laundering, and involuntary manslaughter and 

serious (or very serious) personal injuries sustained due to a violation of 

workplace safety laws. There are also plans to extend corporate liability to 

environmental crimes as well. 

20 For example, the statute of limitations in the decree is completely different from that applying to penal 

mechanisms; the sanctions called for in corporate cases (breakups, mergers, transformations, etc.) are 

completely tied to the civil law on changes in the obligations of companies that are the object or subject 

of modifications. 

21 See, e.g., the contributions on France, the Netherlands, and the United States in this volume: Deckert 

2011; Keulen/Gritter 2011; Nanda 2011. 

22 Law of November 23, 2001, No 409. 

23 Legislative Decree of April 11, 2002, No. 61. 

24 Law of January 14, 2003, No. 7; Law of August 11, 2003, No. 228. 

25 Law of April 18, 2005, No 62. 

26 Law of January 9, 2006, No. 7. 

27 Legislative Decree of November 11, 2007, No. 231. 

28 Law of August 3, 2007, No. 123.



1.5 THE ORGANIZATIONS SUBJECT TO LEGAL CONTROL 

Legislative Decree No. 231 of 2001 gives two indications about the legal 

persons who are its objects: first, article art. 11(1) establishes the 

“administrative liability of legal persons and corporations, associations, or 

organizations without a legal status that do not carry out functions of 

constitutional importance”; and, second, art. 11(2) provides that the term 

“„legal persons‟ refers to organizations with legal status, except for the state 

and other public authorities that exercise public powers.” In this way, 

Legislative Decree No. 231 of 2001 has translated the prescriptions of the 

Delegated Law No. 300 of 2000. It has, above all, provided for the liability of 

organizations (subjects) which lack legal status, i.e., separate legal personality, 

and so finally formally eliminated the traditional dichotomization of groups 

with legal status and groups without legal status in Italian law. Even the latter, 

as the most recent debates have revealed, are considered to be subjects of the 

decree. 

Article 1(3) deals with the exceptions to the scope of the rule, adopting 

thereby a technique used in the French criminal code. As in the French 

system, the Italian state and other territorial authorities are exempt from 

liability, as are organizations that carry out functions of constitutional 

relevance, i.e., political parties and trade unions. “Non-economic public 

organizations” are also excluded. The government thus broadened the range 

of exclusions intended by the Delegated Law No. 300 of 2000. 

1.6 CRITERIA FOR ASCRIBING ACTUS REUS TO AN ORGANIZATION 

Article 5 sets out the criteria for the ascription of the actus reus to an 

organization so as to result in its administrative liability linked to the 

commission of an offense. 

By identifying the natural persons whose acts and omission can be attributed 

to the corporation, Legislative Decree No. 231 of 2001 utilizes the organic 

model, which is in line with art. 27 Constitution. The requirement that the 

natural person who committed the crime acted “in the interests or to the 

advantage of the organization” ensures the identification of the author of the 

crime and the recipient of the sanction, and thereby satisfies the principle of 

personal responsibility, even in its “minimal” interpretation. In fact, the proof 

of the existence of a relevant link between the individual and the juristic 

person is what makes it possible to identify the organization as the absolute 

protagonist in all events concerning the social and economic life of the 

company, and thus also as the source of risk regarding the crime. The



administrative sanction directed at the juristic person impacts the same locus 

of interests, which gave rise to the crime. 29 

As concerns the type of natural persons who may act on behalf of the legal 

person, the decree makes two key differentiations. First, and most 

importantly, the decree expressly recognizes that both the so-called “senior 

managers,” who represent or carry out administrative or executive functions 

for the organization or one of its units, and their subordinates may trigger the 

organization‟s liability; ultimately, the legal person is even responsible for the 

actions of a simple employee. The vast body of federal case law in the United 

States (US) provides convincing evidence of the effectiveness of this solution, 

at least if the aim of the law is more corporate convictions. Second, the decree 

distinguishes between those who formally occupy an executive role and those 

who exercise these functions de facto. Thus, the government has applied the 

“functional theory,” giving precedence to the actual execution of top-level 

functions over the conferral of such powers under official organizational 

documents or acts. Internal auditors remain outside the legal framework in 

this regard, as it is considered that they “do not exercise pervasive control 

over the organization.” 30 

Article 5(2) establishes two exceptions to the rules on the imputation of 

liability: a legal person is not liable for an offence if the agent committed the 

crime solely for his/her own benefit or for that of a third party. Paragraph (2) 

thus departs from the identification doctrine: in order for the actus reus to be 

attributed to the organization, the agent must have committed it while fully or 

partially aware of the advantages for the organization. If this does not 

emerge, at least as a possible aim, then there is no sense in sanctioning the 

legal person. 

1.7 CRITERIA OF ASCRIPTION OF MENS REA 

Articles 6 and 7 Legislative Decree No. 231 of 2001 couple the liability of the 

juristic person to requirements that help assess its level of culpability. In so 

doing, the law adopts a “carrot-and-stick” approach to liability. 31 Thus, if the 

juristic person has put in place corporate regulatory protocols (compliance 

and ethics programs familiar from US law), which were designed to prevent 

the criminal conduct, and if the organization has “adopted and effectively 

carried out” such “organization models” before the commission of the crime, 

it is not liable; otherwise, it faces heavy and invasive sanctions. 32 

29 De Maglie 2002, 331; De Maglie 2001, 1350 

30 Department of Justice (2001), para. 3.2. 

31 De Maglie 2002, 333; De Maglie 2001, 1351. 

32 See Gobert and Mugnai 2002, 619 et seq.



Looking at art. 6 and 7, the legislative decree provides for two forms of 

“organizational culpability” depending on whether the crime was committed 

by the organization‟s high-level personnel or merely by an employee: the 

different roles of the natural persons within the organization led to the 

differentiation. 33 

The first scenario in art. 6(1) is of “culpability deriving from the choice of 

corporate policy.” The burden of proof is inverted, according to the report, so 

that the court starts from an assumption of organizational fault for crimes 

committed by senior managers. Since, physiologically-speaking, senior 

managers express corporate policy, they are fully identified with the 

organization. To rebut this presumption, the legal person must prove the 

extraneousness of the crime by demonstrating that: 

1) effective preventive compliance programs had been adopted and applied 

to prevent crimes from being committed; 

2) a special control committee, with full supervisory autonomy, had been 

set up within the organization to guarantee the maximum efficiency of 

the organizational model; 

3) the senior manager had committed the crime by “fraudulently evading” 

the preventive compliance programs; and 

4) there were no omissions or acts of negligence by the control committee. 

The organizational models aimed at senior management must take into 

account the nature and extent of the activities of the legal person and outline 

the requirements in the “protocols for the formation and implementation of 

organizational decisions.” 

Article 7 then regulates the assumption of “organizational fault” where the 

human offenders was a person in a subordinate position in the organization. 

Here, too, the crux of the provision is the existence of “effective 

organizational models” aimed at preventing crimes. In effect, the juristic 

person is not liable if, before the commission of the crime, it had adopted an 

effective model of organization, management, and control capable of 

preventing such crimes. 

A further question, which is relevant to both provisions, is what amounts to 

an effective compliance program. It is clear that the effectiveness does not 

equate to omnipotence: the compliance program is not expected to always and 

absolutely prevent stakeholder crime. Instead, it must satisfy the prerequisites 

of efficiency, practicability, and functionality that are reasonably able to 

minimize the sources of risk. To maximize efficiency, the model must be 

tailored to the particular organization in question and its activities, and to 

guarantee the proper functioning of the model, periodic controls are called 

for, as are programmatic changes in response to changes within the 

33 De Maglie 2002, 356, 363.



organization. Moreover, a disciplinary apparatus must be established to 

sanction violations of the compliance program‟s provisions. 

1.8 COMPLIANCE PROGRAMS AND CORPORATE CRIME PREVENTION 

Thus, it would seem that the cornerstone of the Italian law for corporations is 

the establishment of “organizational models” that could prevent corporate 

crime. Evident here is the influence of the US approach to the “compliance 

and ethics programs.” Hence, the Italian model for the prevention of 

corporate crimes is also based on the introduction of compliance programs 

within corporations, such programs consisting of a series of detailed rules, 

which the legal person sets itself in order to prevent crimes. 

This internal apparatus for control is an intermediate structure which serves as 

a link and filter between the corporation and the criminal judge and which 

makes the intervention by the judicial authority less traumatic for the 

corporation. As an intermediate system of control, it may reduce the 

intrusiveness and breadth of the criminal justice measures. If they thoroughly 

penetrate the corporate structure, compliance programs will deactivate and 

remove the sources of risk for the commission of crimes. Criminal sanctions 

will be incurred only residually, when the intermediate preventive mechanisms 

have failed due to the non-observance of the rules of compliance. Once it has 

been demonstrated that the crime has occurred despite the effective, 

complete, and diligent observance of self-regulatory rules, the legal person will 

be exempted from liability. 34 

1.9 THE PRINCIPLE OF AUTONOMY AND THE RESPONSIBILITY OF THE LEGAL 

ENTITY 

Article 8 completes the set of criteria for imputation by confirming the 

principle of “autonomy of organizational liability.” This fundamental rule 

considers how organizational processes are carried out inside post-modern 

corporations in which decentralization has definitively replaced traditional 

organizational models based around a rigid bureaucratic framework. In the 

“new” corporation, decentralization can make it difficult to identify the 

individual who committed the offense and inhibit the determination of 

his/her personal responsibility. Par ricochét techniques, such as those in the 

1994 French Criminal Code, can impede the effectiveness and flexibility of 

corporate liability mechanism for they make the identification of the natural 

person, who committed the offense, an indispensible condition for the 

34 Marinucci 2008, 1477 et seq.



attribution of liability to the organization. 35 The Italian legislator did well to 

avoid this approach and to specify that the liability of the juristic person is 

independent of that of the natural person who acts on behalf of the 

organization. 36 

1.10 THE SYSTEM OF SANCTIONS 

The system of sanctions set out in the legislative decree has an “essentially 

binary” 37 structure since it is centered on fines and disqualification orders. 

Complementing this pair are forfeiture and the publication of the judgment. 

1.10.1 FINES 

The Italian system of corporate sentencing is remarkable for its fines. Fines 

are always applied and levied – and herein lies their great novelty – as shares. 

The share fine system, successfully trialed in other European countries, 

permits the punishment to be adjusted to the crime in two steps, thereby 

abandoning the obsolete system of the single-phase sentencing. 

In the first step, the judge determines the number of shares to be issued and 

assigned to the state, linking this to the objective and subjective seriousness of 

the offense. In the second step, the value of the shares is determined based on 

the organization‟s economic capacity. Article 10(2) specifies that the 

pecuniary sanction is to be levied as no fewer than 100 and no more than 

1000 shares, with the amount of each share ranging from a minimum of 

€258.22 and a maximum of €1549.37. Article 11 sets the criteria the court 

must follow in determining both the number of shares and the amount of the 

single share. With regard to the number of shares, this will be determined on 

the basis of the gravity of the crime, the degree of corporation‟s responsibility, 

and its activities to remove or minimize the consequences of the offense and 

to prevent the commission of future offenses; concerning the amount of the 

single shares, the court‟s decision must be based on the economic condition 

of the corporation. 

This kind of sentencing system thus keeps distinct the liability of the juristic 

person for the crime and its sensitivity to the punishment, allows for a 

calculation on the basis of the corporation‟s economic capabilities, and is 

more suited to achieving the purposes of general and special prevention. 

Article 12 Legislative Decree No. 231 of 2001 regulates the circumstances in 

which the pecuniary punishment may be reduced. The decree establishes, as a 

35 See further Deckert 2011. 

36 De Maglie, 2002, 334. 

37 Department of Justice (2001), para. 5.



mitigating factor, the “tenuity of the crime.” Based on criminological and 

criminal policy considerations, a crime is “tenuous” if: first, it was committed 

mainly in the interests of the natural person or a third party without any 

appreciable advantage to the juristic person; and second, if there have been 

corporate efforts at reparation, as typified by the adoption and 

implementation of organizational models capable of preventing crimes before 

the commencement of the trial. 

1.10.2 DISQUALIFICATION ORDERS 

Article 9(2) Legislative Decree No. 231 of 2001 enumerates the sanctions of 

disqualification orders, which may be applied to juristic persons. Those 

disqualifications are: (1) the interdiction of the activity related to the offense; 

(2) the suspension or revocation of an authorization, license, or concession 

that aided the commission of the crime; (3) a prohibition on contracting with 

the public administration; (4) the exclusion of the organization from financing 

facilities, financing, contributions, or subsidies; and (4) a prohibition on 

advertising goods and services. These highly restrictive temporary or 

permanent sanctions can seriously affect the activities of the juristic person or 

even bring them to a complete halt. These sanctions may be imposed for a 

term of not less than three months and not exceeding two years. 

According to art. 13(1) Legislative Decree No. 231 of 2001, the 

disqualification orders enumerated in art. 9(2) apply only if that is the 

intention of the offense provision, and only when at least one of the following 

conditions occurs: 

1) the crime has been committed by subjects in top-level positions and the 

organization obtained from the crime a considerable profit; 

2) the crime has been committed by subjects under someone else‟s direction 

and the commission of the crime has been determined or facilitated by a 

serious lack of organization; or 

3) the offense has been repeated. 

It is important to underline that, as provided by art. 13(3), disqualification 

orders do not apply when the perpetrator has committed the crime for his 

own or other parties‟ predominant interest and when the economic damage 

caused by the crime is particularly small. 

Article 14(1) states the court will decide the type and duration of the orders 

on the basis of the same criteria set in art. 11 on the sentencing standards for 

fines, taking into account the suitability of the sanction to prevent offenses of 

the same kind of the one previously committed. 

Finally, art. 15 of the decree merits special attention since it deals with cases in 

which a disqualification order is applied to a legal person that carries out a 

public service or operates a public utility. Where the interruption of such



activities may cause serious problems to the community, or where the 

application of the disqualification sanctions may have important negative 

consequences for employment given the size of the company and the 

economic conditions in the territory in which it is located, the court, instead 

of applying the penalty may provide for the continuation of the corporate 

activity under the authority of an officer appointed by the court for a period 

equal to the length of the disqualification orders that should have been 

applied. These cases represent a form of probation with a markedly specialpreventive 

significance: the officer – whose powers are set by the judge – is 

charged with reorganizing the corporate governance of the organization and 

setting up an effective compliance program. 

1.10.3 FORFEITURE 

Article 19 Legislative Decree No. 231 of 2001 regulates forfeiture, which is 

conceived of as an obligatory, autonomous, and serious sanction, which aims 

to more effectively combat economic crimes. In its classic form it involves 

the forfeiture of the product of, or profit from, the crime, and its modern 

form, the forfeiture of an equivalent value. 

1.10.4 ANCILLARY PROVISIONS 

The sanctioning system is completed by a series of regulations regarding 

recidivism, complicity in the crime, the statute of limitations, and the violation 

of the disqualification orders. 

1.11 IN DEFENSE OF CORPORATE CRIMINAL LIABILITY 

Even recently, the principle of corporate criminal liability has been attacked as 

unnecessary. Critics argue, in sum, that the criminal liability of legal persons is 

superfluous, other branches of the law effectively achieving the same 

objectives, particularly with respect to crime prevention. 38 

In response, I think it is worthwhile recalling Lawrence Friedman‟s important 

2000 essay, “In Defense of Corporate Criminal Liability.” For Friedman, legal 

persons are reactive to the full range of measures that are connoted by 

retributive theories of criminal justice because they possess a specific identity, 

which is manifested autonomously in the social area and which is clearly 

distinguished from that of the individuals that make up it up 39 This identity 

differs from company to company and derives from the culture that each 

juristic person possesses, and it reflects the internal customs of the 

38 For a recent description of these critiques, see generally Beale 2007, 1503 et seq. 

39 Friedman 2000, 834, 848.



organization, the way corporate governance is managed, and its explicit or tacit 

objectives. 40 According to Friedman, juristic persons have a capacity to 

express moral judgments in public as well as points of view that are original 

and independent of those of the component individuals, that designate them 

as single subjects with integral identities, and that permit them to “participate 

in a concrete manner in creating and defining social norms.” 41 

Friedman‟s observations lead to an important conclusion: because they have a 

well-defined community identity to which their behavior can be traced, 

organizations may suffer from “moral condemnation,” 42 which is a fundamental 

and exclusive effect of criminal law. Only criminal law is capable of creating a 

stigma: the other branches of the law have a different language and different 

social meanings 43 and are not able to communicate moral condemnation. Only 

the criminal law, through its rules, manages to express the particular and superior 

value that certain goods possess: in other words, the nature of liability must 

underscore that, in that circumstance, the victim or good has a value, which 

cannot be priced. 44 

In other words, the message of strong censure and solemn moral 

condemnation inherent in criminal law cannot be found in any other legal 

instrument of social control. Even pecuniary sanctions, stripped of their 

criminal connotations and applied – with the same financial value – as a noncriminal 

sanction, could be viewed, by both the juristic person that suffers the 

sanction as well as the collectivity, as merely the price of maneuvering easily 

and unscrupulously in the business world. 

The condemnatory effects of the criminal law are even more important given 

the general trend in legal doctrine to attribute the modern criminal law with a 

merely symbolic function (understood in the positive sense). On this view, we 

live in a society with a paucity of authentic alternative ideologies, characterized 

by the loss of traditional moral reference points, such as family and religion, 

and the disintegration of social ethics, understood as an autonomous category 

of reference for the collectivity. This has had the effect of investing criminal 

law with functions that traditionally do not belong to it and that have, until 

now, not been considered as pertaining to its exclusive sphere of influence. 

Today criminal justice policy requires the criminal law not to simply impact 

the moral code of the community, but rather to shape it completely. 

Without going as far as to invest modern criminal law with a merely symbolic 

function, I would join Friedman in pointing out the risks connected with 

renouncing recourse to criminal law and its expressive power to combat 

corporate crime – for reasons of mere effectiveness. Further, the above 

considerations lead me to conclude that the reaction of the legal system 

40 See Friedman 2000, 847 et seq. 

41 Friedman 2000, 848. 

42 Friedman 2000, 852. 

43 See Friedman 2000, 854. 

44 See Friedman 2000, 855.



should vary not on the basis of the legal “good” that is violated but according 

to the type of author who has committed the crime. As Friedman concludes: 

The value of human health and safety, for example, would be 

regarded as less sacrosanct when denied by corporations as 

opposed to individuals. Thus corporate exemption from criminal 

liability would tend to undermine the condemnatory effect of 

criminal liability on individuals in respect to similar conduct – 

and, ultimately, to diminish the moral authority of the criminal 

law as a guide to rational behavior. 45 

1.12 CONCLUSIONS 

The regulatory techniques adopted by the Italian legislator in the area of 

corporate criminal liability law cannot be compared with common law legal 

systems, such as those in the US and the United Kingdom, which have long 

recognized the principle of corporate criminal liability. 46 Moreover, after 

almost ten years, there have been too few cases to give a final judgment on the 

effectiveness of Italy‟s laws in this area. Though recent laws have broadened 

the types of crimes for which corporations may be held liable, the list of 

crimes is still too short and does not even reflect the wide range of economic 

crimes that corporations may be involved in. That said, the great deficiency of 

the Italian system, and the features that make it a blunt instrument, are the 

inconsistencies within its sanctioning apparatus. Disqualification sanctions for 

legal persons are called for only in exceptional cases, and the pecuniary 

penalties are ridiculously low if compared to some other countries, such as 

(once again) the US or Great Britain. In any case, the principle of criminal 

liability for legal persons is a great achievement for “legal” civilization: it is to 

be hoped that, in the future, this principle will become as deeply rooted in 

Italy as it is elsewhere. 

LIST OF REFERENCES 

Alessandri, A. (1984), Reati d’impresa e modelli sanzionatori, Milan. 

Beale, S.S. (2007), „Is Corporate Criminal Liability Unique?‟, American Criminal 

Law Review. 44,1503. 

45 Friedman 2000, 858. 

46 De Maglie 2005, 565 et seq.



Coffee, J.C. (1981), „“No Soul to Damn: No Body to Kick”: An 

Unscandalized Inquiry into the Problem of Corporate Punishment‟, Michigan 

Law Review 79, 386. 

De Maglie, C. (2001), „Principi generali e criteri di attribuzione della 

responsabilitá‟, Diritto penale e processo, 1348. 

De Maglie, C. (2002), L’etica e il mercato. la responsabilità penale delle società, Milan. 

De Maglie, C. (2005), „Models of Corporate Criminal Liability in Comparative 

Law‟, Washington University Global Studies Law Review 4, 547. 

De Simone, G. (2002), „I profili sostanziali della responsabilità c.d. 

amministrativa degli enti : la “ la parte generale ” e la “ parte speciale “ del d. 

lgs. 8 giugno 2001 n. 231‟, in: G. Garuti (ed.), Responsabilità degli enti per illeciti 

amministrativi dipendenti da reato, Padua, 57. 

De Vero, G. (2001), „Struttura e natura giuridica dell'illecito di ente collettivo 

dipendente da reato‟, Rivista italiana di diritto e procedura penale, 1126. 

Deckert, K. (2011), „Corporate Criminal Liability in France‟, in: M. Pieth and 

R. Ivory (eds.), Criminal Responsibility as Corporate Risk: A Comparative Analysis of 

Corporate Criminal Liability Laws, Dordrecht. 

Department of Justice (2000), „Relazione al Progetto preliminare di riforma 

del codice penale – Parte generale‟. 

Department of Justice (2001), „Relazione ministeriale al Decreto Legislativo 8 

giugno 2001, No 231‟. 

Friedman, L. (2000), „In Defense of Corporate Criminal Liability‟, Harvard 

Journal of Law & Public Policy 23, 833. 

Gobert, J. and E. Mugnai (2002), „Coping with Corporate Criminality. Some 

lessons from Italy‟, Criminal Law Review, 619. 

Keulen, B.F. and E. Gritter (2011), „Corporate criminal liability in the 

Netherlands‟, in: M. Pieth and R. Ivory (eds.), Criminal Responsibility as Corporate 

Risk: A Comparative Analysis of Corporate Criminal Liability Laws, Dordrecht. 

Kosko, B. (1993), Fuzzy Thinking: The New Science of Fuzzy Logic, New York.



Marinucci, G. (2008) „Il diritto penale dell‟impresa: il futuro è già cominciato‟, 

Rivista italiana di diritto e procedura penale, 1465. 

Musco, E. (2001), „Le imprese a scuola di responsabilità tra pene pecuniarie e 

misure interdittive, Diritto & Giustizia, No 23, 8. 

Nanda, V.P. (2011), „United States of America: Corporate Criminal Liability in 

the United States: Is a New Approach Warranted?‟, in: M. Pieth and R. Ivory 

(eds.), Criminal Responsibility as Corporate Risk: A Comparative Analysis of Corporate 

Criminal Liability Laws, Dordrecht. 

Paliero, C.E. (2001), „Il d.lgs. 8 giugno 2001, n. 231: da ora in poi, societas 

delinquere (et puniri) potest‟, Corriere giuridico, 845. 

Paliero, C.E. (2008), „La società punita: del come, del perché, e del per cosa‟, 

Rivista italiana di diritto e procedura penale, 1516. 

Ramella, A. (1885), La responsabilità penale e le associazioni, in Trattato del Cogliolo, 

II, I,. Milano. 

Romano, M. (1995), „Societas delinquere non potest (Nel ricordo di Franco 

Bricola)‟, Rivista italiana di diritto e procedura penale, 1931. 

ANNEX: RELEVANT PROVISIONS OF LEGISLATIVE DECREE NO. 231 

Art. 5. Organizational liability: 

1. The organization is liable for crimes committed in its interest or 

advantage: 

a) by persons having a representative, administrative or management role in 

the organization or one of its organizational units with financial and 

functional authority, as well by persons who exercise (even de facto) 

management and control functions for the same; 

b) by persons under the direction or control of one of the subjects 

mentioned in a). 

2. The organization has no liability if the persons indicated in paragraph 1 

have acted exclusively in their own interests or in those of third parties. 

Art. 6. Subjects in top-level positions and organizational models of the 

collective entity:



1. If the crime was committed by the persons indicated in article 5, 

paragraph 1, letter a), the organization is not liable if it can prove that: 

a) before the commission of the crime the management body had adopted 

and efficiently implemented organizational and management models suitable 

for preventing crimes of the type that occurred; 

b) the oversight task regarding the functioning of the afore-mentioned 

models and the compliance regarding the models for the latter's updating 

was entrusted to an organizational body with autonomous decision-making 

and control powers; 

c) the persons have committed the crime by fraudulently eluding the 

organizational and management models; 

d) there have been no omissions or insufficiencies in oversight activities by 

the body mentioned in letter b). 

2. Regarding the extension of the delegated powers and the risk of the 

commission of crimes, the models set out in letter a), paragraph 1, must 

respond to the following needs: 

a) identify the activities that can provide the occasion for the commission of 

crimes; 

b) provide for specific protocols to plan the determination and carrying out 

of organizational decisions relating to the crimes to be prevented; 

c) identify ways to manage financial resources that are suitable to impeding 

the commission of crimes; 

d) oblige the delegated body that is to oversee the functioning and 

observance of the models to provide information; 

e) introduce a disciplinary system with suitable sanctions in cases of failure 

to respect the measures indicated in the model. 

1. The organizational and management models can be adopted, thereby 

meeting the needs expressed in paragraph 2, on the basis of codes of behavior 

drafted by the organization's representative associations; these codes are then 

to be communicated to the justice ministry which, together with the 

competent ministries, can formulate, within thirty days, observations on the 

appropriateness of the models for preventing crimes. 

2. For smaller organizations the tasks indicated in letter b), paragraph 1, can 

be carried out directly by the executive organ. 

3. In any case, provision is made for the forfeiture of the profit earned by 

the organization from the crime, even in the form of an equivalent sum of 

money. 

Art. 7. Subjects under someone else's direction, and organizational 

models of the collective entity: 

1. In the case provided for in article 5, paragraph 1, letter b), the 

organization is liable if the commission of the crime was made possible by 

nonfeasance regarding the management or oversight obligations.



2. In any case, such provisions involving nonfeasance regarding the 

management or oversight obligations are not applicable if the organization, 

before the commission of the offense, had adopted and efficiently carried out 

a model of organization, management and control appropriate for preventing 

the types of crimes that occurred. 

3. With regard to the nature and size of the organization as well as the type of 

activities it carries out, the model provides for suitable measures to guarantee 

the implementation of such activities in accordance with the law and to 

discover and eliminate in timely fashion risk situations. 

4. The effective implementation of the model requires: 

a) a periodic check and, if necessary, a change in the model when significant 

violations of the prescriptions are uncovered, or when changes in the 

organization or its activities have taken place; 

b) a disciplinary system with suitable sanctions in case of nonfeasance 

regarding the measures indicated in the model. 

Art. 8. Autonomy regarding the liability of the organization: 

1. The organization is liable when: 

a) the author of the crime has not been identified or cannot be charged for 

its commission; 

b) the crime is extinguished for a reason other than amnesty. 

2. Unless the law provides otherwise, no legal actions are undertaken 

against the organization when amnesty is granted for a crime for which it is 

liable and the accused has renounced its application. 

3. The organization can waive the right to amnesty.

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