Italian Court Research Articles

Agency Agreement: From Innominate Contract to the Reference Model of Commercial Distribution Agreements

The purpose of this article is to demonstrate that some Italian rules in relation to the commercial agent also can be applied to the distributor. The few Italian judgements rendered on this matter state that rules governing the commercial agent are not applicable to the distribution contract: this innominate contract could be governed through applying by analogy the regulation of supply contract. This Italian Courts’ point of view could be revised. This analysis is based on an historical approach and on the examination of case law in the German, English and Italian legal systems. The historical analysis demonstrates that Italian legislator has regulated the commercial agent contract as a framework model for all distribution contracts. An analysis of the case law demonstrates that in some legal systems the commercial agent’s regulation can sometimes be applied to the distribution contract.

İtalyan Ceza Hukuku Sisteminde İstinaf: Hukuk Reformları ve İçtihat Hukuku

This article deals with the crucial and vital issue of the appeal in the Italian criminal justice system. The first part of this study is focused on the historical framework and the main legislative reforms that have characterized the issue of appellate remedies. After this general overview, the article analyzes the different types of appellate remedies and the fundamental principles that govern them. However, the core of this article is devoted to the appeal, which has recently been affected by important legislative reforms that have reshaped it. After some preliminary remarks regarding the nature of the appeal in the Italian criminal justice system, the work deals with the form of the appeal, identifying the subjects who are entitled to lodge an appeal and the preconditions that justify the filing of it. The article is then focused on the appellate procedure, dedicating particular attention to the renewal of the trial evidentiary hearing in case of appeal of the public prosecutor against a first-instance acquittal. This case of renewal has recently been introduced by the Italian legislator following the case law of the European Court of Human Rights and of the Italian Court of Cassation. After analyzing such issues, this work identifies the outcomes of the appellate procedure. Finally, the article draws some conclusions about the issue of the appeal in light of the recent legislative reforms and case law.

The Role of Legal Justiication in Judicial Performance: Quasi-Experimental Evidence

The Italian judicial system is notoriously slow, with an estimated backlog of five million cases. We use a sample of 652,174 court cases in Turin to study the role that various adjudication procedures play in judicial timeliness. We exploit plausibly exogenous variation in the procedures governing how judges rule on small claims and implement a quasi-experimental approach. We estimate the causal effect that different adjudication procedures entailing varying degrees of procedural complexity have on time to disposition. The unique institutional features of the country’s small claims court allows us to do so. For any claim valued below 1,100 euros judges do not need to provide formal legal justification for their decisions. They can rule based on “equita”, i.e., fairness, intuition or commonsense grounds. For cases valued above this threshold, judges do not have such flexibility. Our regression discontinuity estimates, which exploit the variation in these adjudication procedures just above and just below this threshold, reveal that when judges are able to rule without providing legal justification, decisions are made one month faster. We document the robustness of our results in light of observable strategic behavior on the part of litigants. We discuss how our results align with recent policy reforms in the realm of small claims including methods to ease congestion in Italian courts and efforts to improve judicial performance more broadly.

The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc

AbstractFollowing the decision of the First Division of the Court of Cassation issued on May 16, 2016, the United Section of the Italian Court of Cassation delivered a very important ruling on 5 July 2017 deciding – for the very first time – in favour of the enforceability of US punitive damages in Italy.The decision of the Joint Divisions of the Court of Cassation was based on the following arguments: a) more than one provision of the Italian legislative framework already attributes to damage compensation a scope that goes far beyond the mere restoration of the prejudice suffered by the victim; b) recent case law on the matter excludes the incompatibility of the punitive scope of civil liability with the Italian legal system; and c) several doctrinal contributions have promoted the possibility of granting the injured party the right to obtain compensation, beyond the patrimonial loss suffered, assuming that civil liability may also have a deterrent effect.On these premises, the Plenary Session of the Italian Court of Cassation recognised that civil liability may serve different functions: it primarily grants compensation to the injured party, in line with the previous connotation of civil liability as restoration of patrimonial loss, but it may also ensure deterrence and sanction the wrongdoing of the tortfeasor.Given this comprehensive nature of civil liability, the decision stated that foreign decisions granting punitive damages are not against public policy in principle and, thus, can be enforced in Italy, but only under certain preconditions.A foreign ruling providing the payment of punitive damages may be executed in Italy only in the case where foreign legislative provisions, or equivalent sources, grant the competent judge the power to award punitive damages based on typical and predictable circumstances. Moreover, the amount of punitive damages due shall be limited.A decision of the Joint Divisions of the Italian Court of Cassation—which is entitled to provide an uniform interpretation of the law— represents a significant precedent, which lower courts and subsequent judgments are likely to follow, in terms of which courts will be required to recognise and enforce foreign decisions implying a compensation of punitive damages.

New italian law about end of life: self-determination and shared care pathway.

The Italian Parliament has recently approved the Law n. 219/2017 concerning "Rules on informed consent and advance directives". The manuscript points out the main key points of the new law, in order to clarify the role of the advance directives and to provide clear operational guidelines for healthcare personnel. Taking into consideration the Italian deontological and juridical context, along with the main jurisprudential judgements, the law has been analysed. The Authors discussed the new rules and the bioethical issues also in relation to the provisions stated by the Convention on Human Rights and Biomedicine (Convention of Oviedo). The new law deals with relevant issues that were confined to jurisprudential rulings so far, such as the informed consent, the withdrawal/withholding of medical treatment (including artificial nutrition and hydration), the content of medical information, including the modalities, the medical responsibility and, finally, the value of advance directives. In the Authors' opinion this law provides essential rules to expressly strengthen the patients' autonomy, eliminating the juridical uncertainty on many central issues (such us, for example, the refusal of life-sustainment treatments) that have been the subject of contradictory judgments ruled by the Italian Courts. Nevertheless, advance directives should be regarded as a dynamic tools of relationship between physicians and assisted person and, thus, as an essential integrant part of the advance care planning. The education of health professionals and citizens about end of life issues is the basis for the successful implementation of this legislation.

Blood Transfusion in Children: The Refusal of Jehovah's Witness Parents'.

In Italy, both parents have parental responsibility; as a general principle they have the power to give or withhold consent to medical procedures on their children, including consent for blood transfusion; however these rights are not absolute and exist only to promote the welfare of children.MethodsThe Authors discuss ethical and legal framework for Jehovah’s Witness parents’ refusal of blood transfusion in Italy. They searched national judgments concerning Jehovah’s Witness parents’ refusal of blood transfusion – and related comments – in national legal databases and national legal journals, and literature on medical literature databases.ResultsIn the case of Jehovah’s Witness parents’ refusal of blood transfusion for their child, Italian Courts adopt measures that prevents the parents from exercise their parental responsibility not in the child’s best interest.DiscussionIn the event that refusal by the parents, outside of emergency situations, exposes the child’s health to serious risk, health workers must proceed by notifying the competent authority, according also to the Italian Code of Medical Ethics.ConclusionWhen the patient is a minor, the child’s best interest always come first.

Melloni overruled? Considerations on the ‘Taricco II’ judgment of the Court of Justice

In its M.A.S. preliminary ruling on the questions asked by the Italian Constitutional Court in the wake of Taricco, the Court of Justice chooses now to avoid any conflict with the Italian counterpart and allows the Italian criminal courts not to comply with the obligations laid down in Taricco, insofar as these obligations are inconsistent with the principle of legality in criminal matters in its domestic constitutional dimension. However, several questions remain unanswered. The most awkward question is probably whether or not each Member State will be actually allowed, as the Italian Constitutional Court has been in this case, to be bound by its own national standards of protection of fundamental rights while implementing EU obligations in criminal matters, even if those national standards are higher than those set at a European level – a possibility, which is hardly reconcilable with the principles set forth by the same Court of Justice in Melloni.

Nationality on Trial: International Private Law across the Mediterranean

This article uses a single, transnational legal case that played out between Italy and Tunisia in the 1870s and 1880s to tell a truly global history of international law—that is, one that goes beyond the boundaries of the West. Samama v. Samama was a fabulously complicated case that dragged on in Italian courts for almost a decade. The crux of the legal arguments concerned the nationality of Nissim Samama, a Jew born in Tunis; Samama’s nationality, in turn, would determine which legal system regulated his estate. The Italian civil code enshrined respect for the national law of a foreigner, but such foreigners were presumed to be Western. A case involving the national law of Tunisia and the status of Jews called the very foundations of the international legal system into question. In putting Samama’s nationality on trial, the case opened up debate over fissures in the emerging theory of international law: How could non-Western states like Tunisia fit into an international legal order? How did Islamic law intersect with international law? What was the status of Jewish nationhood in a world increasingly based on exclusive nationalities? The Samama case offers access to the voices of European international lawyers debating the ambiguities of their field, as well as those of Maghrebis articulating their own vision of international law. The resulting arguments exposed tensions inherent to an international legal system uncomfortably balanced between universalism and Western particularism.

La nationalité en procès : droit international privé et monde méditerranéen

RésumésCet article emploie la microhistoire d’une affaire transnationale qui se déroulait entre l’Italie et la Tunisie pendant les années 1870 et 1880 pour éprouver le droit international grâce à une approche qui va au-delà des frontières de l’Occident. L’affaireSamama contre Samamaprésente un litige fort compliqué, examiné par les cours de justice italiennes pendant près d’une décennie. La principale difficulté du procès concernait la nationalité de Nissim Samama, un juif né à Tunis, et, partant, l’ordre juridique qui pouvait décider de sa succession. Le Code civil italien promettait de respecter les droits nationaux des ressortissants étrangers, mais ces derniers étaienta prioriconsidérés comme occidentaux uniquement. Or une affaire où il était question à la fois du droit tunisien et du statut des juifs interrogeait les fondements mêmes de l’ordre juridique international. En portant devant les tribunaux le problème de la nationalité de Samama, le procès dévoilait plusieurs failles et tensions au sein des théories émergentes du droit international : comment des États non occidentaux tels que la Tunisie pouvaient-ils s’intégrer dans l’ordre juridique international naissant ? Comment le droit international envisageait-il le droit musulman ? Quel était le statut de la nation juive dans un monde de nationalités de plus en plus exclusives ? Les actes d’un tel procès permettent de prendre la mesure des débats et des réflexions entre les spécialistes de droit international sur les ambiguïtés propres à leur discipline. De même, ils donnent un accès privilégié à la façon dont les Maghrébins concevaient le droit international. Les controverses qui en résultent mettent au jour les tensions inhérentes à un droit international qui ne cesse d’hésiter alors entre particularisme occidental et universalisme.

Selected Recent Italian Tax Court Decisions on Transfer Pricing

This note provides an overview of selected recent Italian tax court decisions on transfer pricing. “Hot topics” covered include the significance of the arm’s length range, the application of the arm’s length principle to non-interest-bearing shareholder loans and the burden of proof in transfer pricing cases.

Long-term vs short-term perspectives: adaptation, stability and the roles of the constitutional courts in the management of the Eurozone crisis in Germany and Italy

ABSTRACTThe article sheds light on the different approaches used by Germany and Italy in adopting and implementing the instruments created to tackle the Eurozone crisis, with special reference to the European Stability Mechanism, the Fiscal Compact, and the monetary policy instruments adopted by the European Central Bank (ECB). The responses of the two countries are argued to derive from the influence of mainstream economic thinking – Germany promotes a culture of stability and a longer term perspective while Italy favours liquidity and short-term solutions – on the case law of the constitutional courts of the two countries. The German Court has insisted on the principle of constitutional identity and budgetary autonomy of the Bundestag to resist the expansionary monetary policy of the ECB and the growing competences of the EU. In addition, it has recognised the primacy of the principle of long-term stability as a constitutional principle. The Italian Court, on the other hand, has managed to balance the imperative of debt reduction with the need to avoid damaging the welfare state. Case law shows that both Courts have played an increasingly political role.

Italian Court Awards Damages to Beneficiaries for Unlawful Implementation of Aid ∙ Court of Appeal of Cagliari of 13 June 2017 ∙ Annotation by Francesco Maria Salerno and Federico Macchi

The case in comment illustrates the application of State aid rules by a national court. Moreover, the case deserves to be brought to the attention of a wide readership because it concerns a rare case of award for damages to the beneficiary of the aid. By adjudicating in favour of the beneficiary, the Italian court recognized the peculiarities of the case at issue. At the same time, the ruling raises general questions of consistency with EU law, which are likely to become even more salient as the cooperation between Commission and national courts in the enforcement of State aid rules increases. Keywords: National courts; Damages; State liability; Legitimate expectations.

Mobbing (bullying at work) in Italy: characteristics of successful court cases.

:Background:Mobbing (bullying at work) refers to a form of psychological harassment that occurs in the workplace, in which the victim must be systematically and continuously persecuted for a long period of time. The aim of this work is to analyze the court judgments related to mobbing.Methods:The data, collected from a website that included judgments from an Italian court, were analyzed according to the literature, identifying the type of victims, consequences, methods of harassment, type of mobbers, and compensation decided by the court.Results:A total of 35 court sentences were analyzed. The findings showed that the duration of the mobbing campaign was on average 1.5 years and that the frequency of harassment was every day in most cases. In the majority of cases (17, 48.6%) the mobbing occurred in a private company. The gender of the victims who reported the mobbing experience was predominantly female (19, 54.3%), and on average, the victims were 44.54 years of age. The victims were classified as captives (12, 34.3%), scapegoats (8, 22.9%), ambitious (8, 22.9%), passives (5, 14.3%) and hypochondriacs (2, 5.7%). The mobbers were predominantly men (25, 71.4%) and on average 53.20 years of age. They were classified as casual (12, 34.3%), sadists (11, 31.4%), instigators (8, 22.9%) and choleric (4, 11.4%). The witnesses were described in the majority of cases as active, while the asymmetry of power was vertical. On average, the victims suffered 4.9 types of harassment, and the most cited consequences were anxiety disorder and physical symptoms. The motives for beginning the mobbing campaign were principally related to difficulties in relationships. The compensation imposed by the court ranged from less than 20,000 to more than 70,000 euros.Conclusions:The sentences analyzed showed that for different types of victims, there are behaviors, motives and consequences that are linked to different types of perpetrators.

L’inferno in Garfagnana. Per una lettura della satira IV di Ludovico Ariosto

In this article, the incipit from Ariosto’s Satire IV - in which the apostrophe is overshadowed by the chronotopical position of the narrator - serves as a springboard to focus on the role of landscape as the poet’s subject of choice to heighten the dramatic effect of unprecedented biographical events. The depiction of the hellish Garfagnana labyrinth, rendered to perfection thanks to Dante’s hypotext, presents Ariosto’s crisis as that of one damned among the damned. In this Malebolge setting - which could easily be extended to encompass the corruption surrounding the foremost Italian courts - poetry is inevitably condemned to silence, and the moral role of satire is reduced to protecting the basic survival instinct. What does endure in tenacious opposition to such a spread of violence is Ariosto’s correspondence with the Estense court as ducal commissary. It thus emerges that Ariosto’s inability to have himself relinquished from the unwanted position offered by Duke Alfonso leads him to the worst and most dreaded nightmares already evoked in the first satire, i.e. the abandonment of his literary pursuits and the freedom they afforded him, and ultimately his exile in an inhospitable land far from his loved ones in Ferrara. It is the consequent loss of an inner equilibrium on which the first-person narrator in his satires bases his own self-portrait.

Turiner Pest und Römisches Fieber

This article focuses on two Italian court physicians of the late sixteenth century. Although the Sabaudian court differed widely from the cardinals’ courts in Rome, both Francesco Alessandri and Marsilio Cagnati display a similar inclination to publish on subjects transcending the field of individual medicine. While Alessandri’s plague treatise is among the first to report reliably on the civic measures of plague policy, Cagnati published on climate, epidemics and astronomy. The physicians’ engagement in a variety of public functions induced them to write on broader topics with which they were professionally confronted. Their writings reflected their social and political status and their involvement in public and political matters. The publications also served to advertise for the authors’ competencies, which were not limited to medical skills. While Alessandri displayed his qualities as an official of the Torinese health board, Cagnati presented himself as a counselor who could advise not only on medicine, but on a variety of subjects.

In the Name of the Emperor

In July 1786 Prince Carl Anselm of Thurn und Taxis concluded that he had no choice but to dissolve his Italian court opera. This owed in part to the success of the German theater, which had been established in 1784 to rival the Prince’s Hoftheater and contest his position as the Holy Roman Emperor’s representative to the Reichstag in Regensburg. New evidence challenges the prevailing view that the dissolution of the Taxis’s court opera marked the end of the family’s musical patronage and involvement in Regensburg’s cultural life. In the face of opposition from other Reichstag officials, the Thurn und Taxis continued their investment in music and theatrics, appropriating outdoor spectacles of a kind popular earlier in the century to project imperial power. The prince affirmed his position as the emperor’s representative in such older displays of affluence and standing but updated them to suit contemporary tastes. Carl Anselm’s musico-political theatrics around 1789 demonstrate that although Italian opera failed to articulate the legitimacy he intended to project, his culture of political representation conducted in the name of the emperor endured well into the twilight years of the eighteenth century. To understand the continued musical patronage of this contested and middling prince is to appreciate more fully the methods by which music, spectacle, and politics were negotiated during a transformative period in European history.

A Dance with Many Secrets: The Experience of Emotional Harm from the Perspective of Past Professional Female Ballet Dancers in Canada

ABSTRACTOriginating in the Italian and French courts, ballet is an age-old art that fuses aesthetics and athleticism (Wulff, 2008). Despite changing times, ballet masters and mistresses tenaciously hold on to a sense of deep traditionalism. However, some scholars suggest that unwavering devotion to the art may conceal troubled embodied relations and oppressive practices (Gvion, 2008). In this study, we drew on the phenomenological research tradition in an effort to further examine the power relations that play out on the body in the world of Canadian professional ballet (Papaefstathiou, Rhind, & Brakenridge, 2013). Twenty past professional female ballet dancers from across Canada participated in this study. Our dedicated dancers were relentless. They sacrificed body and mind in the pursuit of excellence in a broader cultural context that expected nothing less. The dancers normalized harmful emotional experiences, inappropriate sexual transgressions, and chronic injury (Gvion, 2008). They also described experiences of neglect—and feeling replaceable—after the onset of injury. We have attempted to theorize our findings within the context of embodiment literature and the work of gender theorists. Emboldened by our dancers’ voices, we have shed light—and broken secrets—regarding some of the harmful practices that still characterize professional ballet in Canada. We hope that our work might further continue efforts to democratize power imbalances in professional ballet and ultimately enhance holistic dancer development and health.

Jurisdiction and Choice of Law Issues in Transnational Employment Rights Disputes

The Irish airline Ryanair is estimated to employ, either directly or through companies such as Crewlink or Brookfield Aviation, some 12,000 pilots, cabin crew and other workers operating from 87 bases throughout Europe. Cabin crew supplied by Crewlink are invariably employed under three year fixed-term contracts with a 12 month probationary period. Clause 6 of such contracts typically provides: “As the Client’s aircraft are registered in the Republic of Ireland and as you will perform your duties on these aircraft your employment is based in the Republic of Ireland.” Clause 37 then typically provides: “The employment relationship between the Company and you shall at all times be governed by the laws in effect and as amended from time to time in the Republic of Ireland. The Irish courts have jurisdiction in all matters relating to the execution and termination of this contract.” That clause, it should be noted, goes on to provide: “In the event that this clause becomes inoperable due to legislative changes, legal directive or any other change that the Company determines as material, then this contract will become null and void and your employment with the company will cease and you will be paid the statutory amount in lieu of notice.” The applicability of these two clauses has been considered in recent times by courts in Belgium, Germany, Italy and Norway. In Beyer v Ryanair (8 Ca 8031/09), the Bremen Labour Court ruled, on 1 April 2009, in a case brought by a cabin director based at Bremen airport, that the German courts did not have jurisdiction. This decision was followed by the Wesel Labour Court on 2 February 2010 in Dominguez v Crewlink (1 Ca 2253/09), a case brought by a flight attendant based at Weeze airport. Similar decisions were made by the Courts of Velletri and Bergamo in Iaccarino v Ryanair (985/2013) – flight attendant based at Naples airport – and de Blasio v Ryanair (920/2014) – pilot based at Bergamo airport – on 19 February 2015 and 12 March 2015 respectively. The decision of the Bergamo court was appealed to the Labour Section of the Brescia Court of Appeal which, by decision of 23 March 2016, dismissed the appeal (Order no.21/2016). It should be noted that the Italian Supreme Court, in a case relating to a flight attendant employed by a Belgian company on Belgian aircraft operating out of Fiumicino airport, had previously ruled that the Italian courts did not have jurisdiction in such cases (Cass. Joint Sections, Order no. 18509 of 20 August 2009). This article will focus on the litigation in Belgium and in Norway.

Advanced therapies push regulatory boundaries: Novel therapeutic approaches require more regulatory flexibility and transparency.

The regulation of new medical applications has always been lagging behind the science that enabled these therapies in the first place, but emerging therapeutic approaches are pushing the boundaries harder than ever. Although fundamental principles around safety, efficacy and quality are cast in stone, new interpretations and greater flexibility are required for the clinical use of advanced medicines and treatments without introducing unacceptable risks. There are also ethical considerations that, although not new, are amplified by the potential of emerging therapies to address previously untreatable conditions. All major regulatory bodies, such as the US Food and Drug Administration (FDA) and the European Medical Agency (EMA), have for some years been aware of the challenges posed in particular by Advanced Therapy Medicinal Products (ATMPs). These roughly include three categories: gene therapy medicinal products (GTMPs), somatic cell therapy medicinal products (SCTMPs) and tissue‐engineered products (TEPs), many of which have emerged from the “omics” revolution and stem cell research. > All major regulatory bodies […] have for some years been aware of the challenges posed in particular by Advanced Therapy Medicinal Products ### Advanced Therapy Medicinal Products Both GTMPs and SCTMPs involve ex vivo manipulation of cells, but with a crucial difference in terms of manufacture and function. GTMPs deliver recombinant DNA to specific target cells in the body, whereas SCTMPs are whole cells or tissues genetically manipulated to change their biological characteristics or functions for preventing, diagnosing or treating disease. These cells can be autologous, coming from the patient, allogeneic from another human being or xenogeneic from animals. One recent example of GMTP is recombinant viral vaccines against cancer engineered from an immunogenic virus particle to express tumour antigens, cytokines or both [1]. SCTMPs were the first AMPs to be tested clinically in 1997 for corneal epithelial stem cell transplantation. Since then, the technique has been …

Processo penale e prescrizione nel quadro della giurisprudenza europea. Dialogo tra sistemi o conflitto identitario?

Precarietà e incertezza sembrano affliggere, nei tempi recenti, la prescrizione del reato, quando la si osservi da una prospettiva sovranazionale o comparata. Sullo sfondo, si pone il problema della tenuta del nostro sistema nel suo complesso, e persino della sua identità, come l’abbiamo concepita e tramandata di generazione in generazione. Con l’ordinanza n. 24 del 2017, la Corte costituzionale, sollevando una nuova questione pregiudiziale, mostra l’intento di non consumare una rottura del dialogo con l’ordinamento UE, limitandosi a paventare il rischio di ricorrere ai controlimiti, senza effettivamente porli in essere. Tuttavia, il provvedimento appare criticabile per alcuni argomenti utilizzati, e per la posizione assunta, che sembra lasciare poco spazio per specificazioni e aggiustamenti alla Corte di giustizia. La decisione, infatti, pur mostrando formalmente apertura a un confronto con la Corte di giustizia, tende a proporre in realtà una divisione tra mondi opposti e inconciliabili: di qua il diritto italiano, con la sua tradizione irrinunciabile; di là quello europeo, al quale formalmente si mostra deferenza (purché non si ingerisca in questioni vitali). Sembra il piano per una sorta di convivenza da separati, che certo ha il pregio di guadagnare tempo. Tuttavia, non si intravvede, nel ragionamento condotto, alcuna strada per raggiungere, o almeno per intraprendere il cammino verso una integrazione reale degli ordinamenti: è questo, in realtà, il nodo che, se non affrontato adesso, tenderà a riproporsi in successive occasioni.