Italian Case Law Research Articles

Access to justice for atrocities in the comparison of land-mark cases on state immunity in Brazil and Italy

ABSTRACT This article investigates differences and similarities in the approach of Italian and Brazilian domestic courts to the topic of access to justice for atrocities and the role of state immunity, taking particular note of the limited and select dialogue between the two judiciaries and reflecting on the potential for further developments of the customary international law rule on state immunity. To do so, the article first outlines the rule on state immunity and offers an overview of the articulated Italian case law on why state immunity cannot bar access to justice for atrocities, considering the judicial developments occurred after 2004. The paper moves on to describe the recent 2021 decision of the Brazilian Supremo Tribunal Federal, in which the Brazil judiciary seemingly joined the Italian trend against state immunity when atrocities are committed. The two different judicial trends are then compared and analysed, with a discussion on the limited explicit reference to Italian decisions by the Supremo Tribunal Federal. The article concludes the research by describing the likely impact of these judicial trends on future developments on the relationship between access to justice for atrocities and state immunity.

Comparing law and religion judgments in the rise of judicial populism. The kirpan case-law in Italy and Canada as a case-study

ABSTRACT: This essay explores the intersection of religious symbols and judicial populism, focusing on the case-law related to the kirpan in Italy and Canada. In an era of rising populism, religious symbols become political tools, creating an “us-versus-them” narrative. The kirpan, a Sikh ritual dagger, can serve as a case-study for judicial populism, examining contrasting approaches in Italian and Canadian case-law. Italian case-law prioritizes public safety over religious freedom, while Canadian case-law adopts a nuanced approach, accommodating the wearing of the kirpan under some conditions. The kirpan’s legal ambiguity highlights the tension between religious freedom and public safety, reflecting the broader challenges of recognizing different identities in a multicultural society. SUMMARY: 1. Religious symbols, populism, and judicial populism - 2. Methodology and research questions - 3. The kirpan as a case-study for judicial populism - 4. Judicial populism in action: the Italian case-law - 5. Precautions against judicial populism: the Canadian case-law - 6. Countering judicial populism.

Recent Novelties About Appeal Term in Controversies Concerning Public Tenders in Italian Legal Environment

The aim of this paper is to outline overview of amendments present in the Italian legal environment regarding appeal in public tender controversies. The content analysis will be conducted based on the Court of Justice of the European Union rulings, then referring to Italian administrative case law and finally focused on the Italian new legislative regulation concerning public tenders.

Immunities: State Immunity in Employment Disputes and Choice of Court Clauses in Employment Contracts: A Turning Point in Italian Case Law?

Immunities: State Immunity in Employment Disputes and Choice of Court Clauses in Employment Contracts: A Turning Point in Italian Case Law?

Enforcing legal information extraction through context-aware techniques: The ASKE approach

To cope with the growing volume, complexity, and articulation of legal documents as well as to foster digital justice and digital law, increasing effort is being devoted to legal knowledge extraction and digital transformation processes. In this paper, we present the ASKE (Automated System for Knowledge Extraction) approach to legal knowledge extraction, based on a combination of context-aware embedding models and zero-shot learning techniques into a three-phase extraction cycle, which is executed a number of times (called generations) to progressively extract concepts representative of the different meanings of terminology used in legal documents chunks. A graph-based data structure called ASKE Conceptual Graph is initially populated through a data preparation step, and it is continuously enriched at each ASKE generation with results of document chunk classification, new extracted terminology, and newly derived concepts. A quantitative evaluation of ASKE knowledge extraction and document classification is provided by considering the EurLex dataset. Furthermore, we present the results of applying ASKE to a real case-study of Italian case law decisions with qualitative feedback from legal experts in the framework of an ongoing national research project.

Abuse of consumer trust in the digital market and the green market: the case of green washing in the Italian legal system

PurposeThe purpose of this paper is to offer some reflection on the abuse of consumer trust and the importance of control of information in the digital market and the green market. The role of the consumer as the arbiter of the market is fundamental. The abuse of consumer confidence depends, in fact, on the spread of stereotyped messages and vague and generic formulas aimed at hiding a dangerous vacuum of protection. In both markets, it is a question of giving the consumer the necessary tools to monitor the transparency of the criteria used by the trader to classify a product according to its characteristics.Design/methodology/approachBased on the analysis of an Italian case law and the European programme, the author shows how in Italy there is a dangerous lack of consumer protection. The problem is that the green consumer, as well as the online consumer, is not able to immediately verify the accuracy of the product requirements and must be able to count on the seriousness of the professional. For this reason, the European and national authorities have provided specific rules for both markets. The new proposal of directive introduces specific rules to target unfair commercial practices that mislead consumers away from sustainable consumption choices and introduced many innovations, such as the ban on greenwashing.FindingsThis work aims to identify the tools necessary to make the information on the products offered in the digital market and those related to green products more reliable but above all to create a common methodology on which to base them. High is the risk that sustainability will become a simple marketing strategy for companies. The difficulty consists in the absence of certain and verifiable parameters by the consumer to really measure the characteristics and the quality of a product characteristic of a product compared to competing ones.Originality/valueThis work examines the problem of consumer protection in the digital and green market from a new perspective, comparing the information asymmetries with respect to the professionals in the two markets. Starting from the cases of greenwashing and analysing new European remedies, the author suggests for both markets, specific answers different from those required for advertising in general. The problem here is not only the truth of the message but also the vagueness and genericity. The consumer must be in a position to control the criteria used by the professional to classify products, both in the green and the digital market. To the best of the author’s knowledge, this paper is the original work of the author and has not been submitted elsewhere for publication.

The Protection of Platform Work in the Perspective of EU Law, between Individual and Collective Rights

From the perspective of labour law, the analysis of the topic of digital platforms focuses on the reconstruction of the protections applicable to platform work, which requires a distinction between individual and collective rights, i.e. between the question of the enforceability of individual rights provided by law in the employment relationship and the question of the recognition of collective rights that may allow for the introduction of rules throughout a negotiation process and the conclusion of collective agreements. The aim of this essay is to address the issue of the protection of platform work on both sides of individual and collective rights, from the perspective of European Union law and in the light of some useful insights from Italian case law and legislative interventions. This will help to understand the importance of the regulatory initiatives proposed and launched on this issue by the European Commission in 2021. European Union, Labour law, competition law, digital platform, platform work, worker, self-employed persons, collective agreements, data processing, private international law.

Immunities: State Immunity in Employment Disputes and the NATO Status of Forces Agreement: Questioning the Italian Case Law

Immunities: State Immunity in Employment Disputes and the NATO Status of Forces Agreement: Questioning the Italian Case Law

Reinforcing the binary and disciplining the subject: The constitutional right to gender recognition in the Italian case law

Abstract The article addresses the reasons why the Italian Constitutional Court requires trans people to transform their physical, psychological, and behavioral characteristics in order to obtain the legal recognition of their gender identity. It discusses how such a doctrine is implemented. Examining the case law of the Constitutional Court and of the Court of Cassation in light of queer theory, the article argues that such requirements are intended to benefit the “certainty of legal relations,” which, in this context, is inextricably tied to the preservation of the heterosexual matrix of family law. Developing a Foucauldian analysis of a consistent sample of decisions by courts of first instance, the article reasons that the application of such requirements amounts to the exercise of disciplinary power, which defines and regulates binary gendered subjects. By focusing on the underexplored doctrine of the Italian Constitutional Court on gender recognition, the article offers a case study which innovatively contributes to the bourgeoning debate on the right to gender recognition.

Recognition of a status acquired abroad

Analyzing the recent Italian case-law is clear that a difficult balance is maintained between the Italian Law and the State’s obligation to recognize a foreign status under the EU law and ECHR principles. Moreover, the recognition of foreign judgment and provisions related to personal status are surely interconnected with the role of public policy, on one hand, and the effectiveness of human rights on the other hand.

The evolution of the position of Italian Case law concerning public policy in transnational family matters, in view of some recent judgments of the Italian Court of Cassation and Constitutional Court

The position held by the Italian case law concerning public policy in transnational family law matters has recently experienced some interesting developments, showing an enduring ambiguity between two different notions of public policy for the purposes of private international law, between a “truly international” conception of public policy, whereby it should be considered as purely limited to internationally shared legal principles, concerning especially the protection of fundamental rights, and a more traditional notion. According to the latter notion, public policy for the purposes of private international law shall be considered as embodying mostly national principles, identifying the fundamental attitude of the country at the relevant time, as reflected non only by its constitutional rules, but also by the rules embodied in domestic legislation, insofar as these translate into concrete rules the general principles embodied in the national constitution. Some recent judgments by the Italian Court of Cassation and Constitutional Court concerning topical issues of family law, with particular regard to surrogate motherhood, full adoption by same-sex couples, and repudiation, are particularly telling of this state of affairs. As the author proposes, the dichotomy between the said two notions of public policy for the purposes of private international law is likely to be overcome by suggesting a more flexible reading of the traditional notion, likely to encompass within its scope also those internationally shared legal principles concerning fundamental rights, embodied in the different notion mentioned above, with particular regard to the protection of the best interest of the child, as well as of gender equality.

When conceptual autonomy leads to in the (autonomous) absence: Where is moral damage going? A revision of Italian case law

When conceptual autonomy leads to in the (autonomous) absence: Where is moral damage going? A revision of Italian case law

Which social security regime for platform workers in Italy?

AbstractThis article highlights the debate on social security regimes applicable to platform workers in Italy. As social security regimes differ according to the type of employment or self‐employment relationship, Italian case law dealing with platform workers’ employment status will be illustrated. Italian legislation, case law and collective bargaining on health and safety at work will then be presented, clarifying the coverage to which platform workers are entitled in the event of accidents at work and occupational diseases, with a focus on the COVID‐19 pandemic impact. In turn, the two main Italian minimum income schemes and the related scholarly debate will be outlined, as well as their impact on the ability of digital labour platforms to avoid their responsibilities as regards workers’ rights, including access to adequate social protection.

Implementing the EU Directive 2017/541 on Combating Terrorism in a Sustainable Balance Between Efficiency, Security and Rights: The Case Study of the Participation to a Terrorist Group

AbstractEU Directive 2017/541 led to a sort of Copernican revolution in the definition of the system to combat international terrorism. There is not only the definition of the guidelines for a coherent system to combat the phenomenon, but it is explicitly envisaged the need for a compliance with fundamental freedoms, breaking the widespread idea that security and rights cannot coexist in a balanced system. The analysis of the national implementation of international and European legal framework returns the image of domestic systems strongly influenced by the past forms of terrorism experienced at a domestic level. From this point of view, the case-study of the definition of the crime of participation in a terrorist group in the Italian system appears to be paradigmatic of the aforementioned need to find a sustainable balance between the effectiveness of the response and the protection of fundamental rights and guarantees. The experience in the field of political terrorism but above all of mafia-type associations allowed doctrine and jurisprudence to rely on an already mature elaboration of the constitutive elements of the crime even if it was necessary to evaluate the peculiarities of the terrorist phenomenon. Unlike the mafia-type association, the terrorist group is much moreliquidas it is not based on a rigid structure divided into roles but on networks active at transnational level and resulting from the connection between different autonomous cells. As a result Italian case law, not differently from what happened in other national systems, has been oriented to a strong enhancement of the psychological element in the forms of personal adherence to the ideology of Jihad and to a wide application of the crime of participation even in presence of hardly appreciable contributions from a material point of view. These forms of extensive interpretation – also derived from guidelines developed in the context of mafia-type associations and forms of so-called external conspiracy – has not only driven to forms of “subjectivization” of the crime but made participation in a terrorist group the attractive black hole of all minor hypotheses of non-associative offenses. Through the reference to the Italian experience and some solutions adopted by jurisprudence, this article aims at assuming how the use – or better the history repeating – of the classic causation model could be a useful solution to recover the legality of the crime of participation and to restore autonomous space for the application of the minor hypotheses already provided by the same Directives 541/2017 in a sustainable balance between collective security and protection of fundamental principles.

Who is entitled to family benefits? Lights and shadows of the ECJ rulings in WS and VR

In WS and VR the Court of Justice interpreted the right to equal treatment afforded by EU law to third-country nationals holding a single permit or a long-term resident’s status as preventing national provisions which, differently from nationals and EU citizens, exclude their family members residing abroad from the calculation of a family unit allowance. While the two rulings upheld an established trend in Italian national case law, the reasoning of the Court raises critical concerns over the correct identification of the beneficiaries of family benefits. Thus, the interpretation supported by the Court is likely to restrict the scope of the right to equal treatment in an unexpected way. Having analysed the two judgments, the present paper discusses why the Court should have taken a different position in that specific regard.

La corte di cassazione ritorna sul tema del riconoscimento del ripudio islamico

With its judgment filed on 7 August 2020, the Italian Corte di cassazione addressed, once again, the issue of the recognition of a foreign repudiation order. As it is well known, the institution of repudiation, which is traditional within Islamic legal systems, has already been the subject of a specific attention in the past in the Italian case-law, which was mainly oriented towards denying the attribution of any effect because of an insurmountable “ontological” conflict between the values underlying this institution in the countries of origin with the principles underlying the so-called international public order of the domestic forum. The contribution aims to examine this position critically, also moving from some isolated signs of a different view, to be found both in the case-law and in the related literature.

Arbitrary Decision-making and the Rule of Law

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution

La tutela previdenziale delle collaborazioni organizzate dal committente

The Author argues that the social security discipline provided for employees by statutory employment law is fully applicable to the so-called “hetero-organized work” (article 2, decree no. 81/2015). After a brief introduction regarding the relevance, within the scope of labour law, of the social security dimension, the Author analyses the different positions expressed by Italian legal literature. The Author then points out how the most recent developments of Italian case law offer more arguments to support the full applicability of the social security discipline to hetero-organised workers and concludes by highlighting some practical effects of such extension.

The Equalisation of Benefits (Compensatio Lucri Cum Damno) in the Italian Law. A Possible Inspiration for Other European Member States?

The Compensatio Lucri Cum Damno concerns cases in which the behaviour of the wrongdoer caused both damages and advantages to the victim. The question is: when and under which conditions such advantages can be set-off against the liable person’s obligation of paying damages? On the contrary, should such mitigation of liability be denied? In 2018 the Italian Highest Courts established principles with regard to these questions, but only with reference to the specific cases submitted to their attention. This article shows how the Italian Courts were inspired by the common principles of European private law and the comparative method with regard to: i) the impossibility of stating a general rule (thus, the necessity of proceeding for categories and classes of cases), and ii) the necessity of looking at the purpose of the benefit, rather than at the causal link between tort and advantages. The author believes that the criteria identified by the Italian case-law for the deductibility of benefits from damages might be of inspiration for other European Member States. Furthermore, it is here highlighted that the Italian Highest Courts made decisions on Compensatio Lucri Cum Damno using an argument explicitly based on the Soft Law and this could strength the effect of the moral suasion within the Draft Common Frame of Reference and the Principle of European Tort Law.

Recent Italian Case Law Developments on the Withholding Tax Exemption under the EU Parent-Subsidiary Directive (2011/96)

This note provides an analysis of Italian case law since 2018 on the withholding tax exemption under the EU Parent-Subsidiary Directive (2011/96), and in particular on the two different positions that exist in relation to the subject-to-tax requirement and the elimination of economic double taxation for the purposes of the Directive.