Posts Tagged Italy
Are proclamations of lois de police an absolute prerogative of the Member States? Italy’s response to Covid19 /Corona and the package travel sector.
Thank you Ennio Piovesani for signalling and reviewing one of the first conflicts-specific developments on the Corona /Covid 19 landscape. Update 28 March 2020 see the comments on and Ennio’s comprehensive response to his own post and comments, for further interesting discussion going beyond the immediate Corona context.
In an effort to safeguard the economic position of the travel sector, the Italian Government by decree has essentially frozen the travel sector’s statutory duty to reimburse travellers whose package travel has become impossible due to the pandemic. Ennio reports that the decree refers specifically to Article 9 Rome I’s overriding mandatory law provisions (earlier applied in Unamar), (in his translation): ‘“The provisions of the present article constitute overriding mandatory provisions within the meaning of Article 17 of Law of 31 May 1995, No. 218 [“Italian PIL Act”] [5, 6] and of Article 9 of Regulation (EU) No. 593/2008 of the European Parliament and of the Council, of 17 June 2008 [“Rome 1 Regulation”]”.
Ennio signals and important issue: how much leeway may be given to Member States to push their own definition of the concept of ‘lois de police’ /overriding mandatory law in light of the CJEU definition in Joined Cases C-369/96 and C-376/96 Arblade. In Brussels Ia of course the CJEU has pushed the concept of ordre public in a limited direction. Lois de police however are different from ordre public and Rome I is not Brussels Ia, and I am therefore not so pessimistic as Ennio when it comes to leaving a lot of discretion to Member States. What to me looks a touch more problematic is the relation with the package travel Directive 2015/2302 which applies to many of the travel arrangements concerned and which is the source of many of the protections for travellers.
No doubt to be continued.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 188.8.131.52.
Thank you Francesca Petronio, Fabio Cozzi & Francesco Falco for flagging the Italian Supreme Court’s judgment no. 16601/2017 of 5 July last. Thank you also to professor Marta Requejo for sending me copy of the judgment.
In what is suggested to be a Copernican revolution, the Supreme Court has dropped the Italian legal order’s fundamental objection to punitive damages, which made it near-impossible to obtain recognition and enforcement of in particular US judgments containing such damages. The judgment not surprisingly contains a number of conditions in particular on the excessive nature of such damages.
The judges seem to have been swayed by developments both in Italy (statutory law in places allowing for more than simple compensation of material loss) and US law (truly excessive punitive damages having been reigned in).
Punitive damages are the one example always identified as one of the core applications of ordre public in European recognition and enforcement law. After the Italian example surely this may now be less obvious in many jurisdictions.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.
FIPA, Tws Automation and Ivan: ECJ confirms the secondary nature of ‘principles’ in EU environmental law
European environmental law principles may not have practical legal force in and of themselves. They are transposed into secondary law. It is their (incorrect) application and interpretation in conjunction with secondary law, which gives rise to citizens and corporations calling upon the principles to support their individual position. Hence despite their trumpeted value as ‘principles’, in the law in practice, individual citizens or corporations need transposition of said principles in secondary law, to argue that such secondary law has infringed the principles.
A clear application of this reality, is the recent ECJ judgment in Case C-534/13, a case with an impossibly long series of applicants and defendants, which for ease of reference I have dubbed FIPA, Tws Automation and Ivan in title of current posting. (After the main protagonists).
The main issue that arose, was whether national (Italian) legislation under which no provision is made for the authorities to require owners of polluted land who have not contributed to that pollution to carry out preventive and remedial measures, and the sole obligation imposed concerns the reimbursement of the measures undertaken by those authorities, is compatible with the ‘polluter pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority.
The ECJ emphasises the role of Directive 2004/35 in this context. Held that the Directive does not hold against such absence. And recalled in line with previous case-law, that the environmental principles of the Treaty ‘do no more than define the general environmental objectives of the European Union, since Article 192 TFEU confers on the European Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure, responsibility for deciding what action is to be taken in order to attain those objectives. (…) Consequently, since Article 191(2) TFEU, which establishes the ‘polluter pays’ principle, is directed at action at EU level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation — such as that at issue in the main proceedings — in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (…) Similarly, the competent environmental authorities cannot rely on Article 191(2) TFEU, in the absence of any national legal basis, for the purposes of imposing preventive and remedial measures.(…)’ (at 39-41)
A sobering conclusion, yet one solidly rooted in legal practice and institutional balance. Geert.
In 2008, the Waste Framework Directive was amended (Directive 2008/98) among others to give Member States more leeway in restricting exports of municipal waste.
Article 16(1) WFD now provides
‘1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques.
By way of derogation from Regulation (EC) No 1013/2006, Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Member States shall notify the Commission of any such decision. Member States may also limit outgoing shipments of waste on environmental grounds as set out in Regulation (EC) No 1013/2006.‘
The waste at issue is also known as ‘household’ or ‘domestic’ waste. It is not precisely defined in the WFD, although there are various indications pointing to the origin of the waste being relevant: municipal waste is waste collected from private households. (Things are confused by waste collected from industry sometimes being assimilated with ‘household’ waste, namely when its composition is considered ‘similar’; here of course confusion enters. For domestic waste itself would seem to be defined not by its composition but rather by its origin (even though that origin often betrays its composition)).
In Italcave, the Italian Council of State held on the categorisation of waste originating from shredding, sifting and packaging plants (also known as STIR). Thank you to Lucciano Butti for alerting me to the case.
This is where my input ends, I fear: I should like to hear from those possessing knowledge of Italian beyond my limited, summer holiday driven capabilities (and shall update this posting accordingly). From what I understand, the treatment of the waste was relevant in determining the issue however nature of that treatment, and the wastes’ origin and composition is at this stage not entirely clear to me.
Thank you to Francesca Petronio and Fabio Cozzi for pointing out relevant new rules of Italian civil procedure prima facie raising issues under the special jurisdictional rules of the Brussels I-Regulation. The changes (introduced earlier in the year) aim to increase the expertise of specialised courts where foreign companies are involved as either plaintiff or defendant. (Only) in the event of special jurisdictional rules, however, the Brussels I regulation does not just identify the courts of a specific Member State as having jurisdiction: it identifies one specific court within that Member State. Court specialisation (such as in the Italian rules, for antitrust cases) would seem to run counter that rule, even if well intended.
All we have to do is to wait for a disgruntled plaintiff or defendant to take issue with the court specialisation where this overlaps with the special jurisdictional rules.