The fourth issue of 2023 of RDIPP (CEDAM, Wolter Kluwer) is now available. It features three articles, one comment, one note, 13 judgments from Italian Courts, 14 annotated summary of EU judgments, several documents and news, one book review, as well as the Italian and English annual indexes.
The Cases in Italian Courts section features judgments on the following topics: contracts; European Union law; international abduction of children; insolvency; jurisdiction; nationality; recognition and enforcement of foreign judgments and administrative acts; treaties and general international rules. Please note that the English Index contains the annotated summary of each published decision.
Similarly, EU case law features annotated summary of judgments addressing both private international and procedural matters, as well as judgments on other topics, in which, nevertheless, the Court’s reasoning has an impact of those matters, including all the paragraphs that may be relevant in that respect.
Articles’ summary:
Prof. Cristina Campiglio (Full Professor, University of Pavia), Giurisdizione e legge applicabile in materia di responsabilità medica (ovvero a proposito di conflitti di qualificazioni) (Jurisdiction and Applicable Law in Matters of Medical Liability (Namely, on the Issue of Conflicts of Characterisation)) [in Italian].
An attempt has been made to give an account of the conflicts of qualification that characterise the healthcare sector, starting with the contractual or non-contractual nature of civil liability for malpractice. We then looked at the nature of the healthcare contract to assess whether patients can fall into the category of consumers and consequently enjoy the protection reserved to them. Finally, reference was made to the qualification of the patient’s self-determination as an expression of the right to privacy rather than the right to physical integrity. Research on the nature of civil liability in a field – the health sector, as said – where many activities are potentially harmful to the physical integrity of the patient so that the healthcare operator might be held accountable of culpable personal injury or even of manslaughter, provided an opportunity to analyse the practice of the Court of Justice relating to the qualification of “contractual matters” and indirectly of the non-contractual matter of culpable “tort”; and to note how the Court, in recent years, on the one hand has openly espoused an extensive interpretation of “contractual matters”, and on the other hand has missed the chance to speak out on hypotheses of non-contractual liability in contractual contexts, or of concurrence of contractual and non-contractual liability. It is to be hoped that the European Union will become aware of the need to provide ad hoc rules on the liability of healthcare personnel who engage in activities that are intrinsically hazardous to patients’ health: if not substantive rules or guidelines, at least rules on jurisdictional competence and applicable law.
Prof. Olivia Lopes Pegna (Associate professor, University of Florence), Continuità interpretativa e novità funzionali alla tutela dell’interesse del minore nel regolamento Bruxelles II-ter (Continuity in Interpretation and Novelties Functional to the Protection of the Interest of the Child in the Brussels IIb Regulation) [in Italian].
This article aims at illustrating the main innovations introduced in the Brussels regime on parental responsibility and protection of children with the Recast: i.e., Regulation (EU) No 2019/1111 (“Brussels II-ter”). While, on the one side, interpretation and application of the Recast Regulation mandate continuity with the jurisprudence of the Court of Justice of the European Union, on the other side the novelties introduced with the Recast show an increased penchant towards flexibility in order to achieve the protection of the actual and concrete best interests of the child.
Dr. Edoardo Benvenuti (Postdoctoral Fellow, University of Milan), Climate change litigation e diritto internazionale privato dell’Unione europea: quale spazio per la tutela collettiva? (Climate Change Litigation and EU Private International Law: Is There Room for Collective Redress?) [in Italian].
With the worsening of the climate crisis, the EU is adopting a number of measures – both in the public and private sector – in order to counter such phenomenon. The layering of substantive norms and standards goes hand in hand with the growing interest towards procedural tools suitable to make the application of such rules effective through private enforcement. Against this background, and given the collective and the ubiquitous dimension of the consequences of climate change, the present article explores the phenomenon of collective redress in the field of climate change litigation. After introducing the definitions and the characteristic features of climate change litigation and collective redress, the article examines the role of Regulations (EU) No 1215/2012 and (CE) No 864/2007, in order to evaluate their ability to address the private international law issues arising from collective and climate change litigation. In doing so, the article focuses on the relevant case-law (both national and of the CJEU), as well as on Directive (EU) 2020/1828 on consumers’ representative actions, which provides a number of propositions that can be applied also in the context of climate change litigation. Once the main critical aspects have been identified, the article discusses some possible reform suggestions to strengthen EU private international law mechanisms in the context of environmental mass torts.
Comment’s summary:
Dr. Ginevra Greco (Researcher, University of Milan), Il c.d. uso alternativo del rinvio pregiudiziale di interpretazione (The So-Called Alternative Use of the Referral for a Preliminary Ruling on Interpretation) [in Italian]:
This article aims to show that, contrary to popular opinion, the interpretative judgments of the Court of Justice of the European Union, which use the terms “precludes” or “does not preclude”, are genuine judgments on the conformity of a national act or measure with EU law. This article also aims to illustrate the compatibility of those judgments with the model of Article 267 TFEU. This conclusion is supported not by the fact that such judgments are devoid of application profiles, but because they remain within the scope of the interpretative function of the Court of Justice, understood not as abstract interpretation, but as an interpretation which contributes to the resolution of the concrete case pending before the referring court.
Note’s summary:
Dr. Anna Facchinetti (Postdoctoral Fellow, University of Pavia), Immunità degli Stati ed exequatur di sentenze straniere in materia di terrorismo: una recente pronuncia della Corte di Cassazione francese(State Immunity and the Exequatur of Foreign Terrorism-Related Judgments: A Recent Ruling by the French Supreme Court) [in Italian].
The paper critically analyses the judgment of the French Court of Cassation, 28 June 2023 n. 21-19.766, which denied the exequatur of a U.S. ruling holding Iran civilly liable for acts of terrorism. The contribution discusses the two main approaches to the immunity of foreign States in exequatur proceedings, namely immunity as a preliminary issue, or to be considered when applying private international law rules relating to the recognition of foreign judgments (in Italy, art. 64 Law No 218/1995). From the perspective of human rights, the contribution tackles the question of the scope of the right of access to justice enshrined in art. 6 ECHR, and puts the French judgment into the context of the case law on State immunity in case of gross violations of human rights in breach of jus cogens.
Finally, this issue features the following book review by Prof. Fausto Pocar (Professor Emeritus, University of Milan): A.V. Dicey, J.H.C. Morris, L. Collins, Dicey, Morris & Collins on The Conflict of Laws16; Sweet & Maxwell, London, 2022, 2 voll., pp. cdxli-2476-LXXI; Companion vol., EU Withdrawal Transition Issues, pp. li-162.
The issue’s Index, both in Italian and in English, is available here.
The annual Index, both in Italian and in English, is available here.