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Last update: 16-01-2007
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Applicable law - Italy

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TABLE OF CONTENTS

I. SOURCES OF THE RULES IN FORCE I.
I.1. National rules I.1.
I.2. Multilateral international conventions in force

Complete list of multilateral international conventions in force I.2.

I.3. Principal bilateral conventions in force

Non-exhaustive list of the bilateral conventions most frequently applied by the courts I.3.

II. IMPLEMENTATION OF CONFLICT OF LAWS RULES II.
II.1. Obligation of the judge to apply conflict of laws rules on his/her own initiative? II.1.
II.2. Renvoi II.2.
II.3. Change of connecting factor II.3.
II.4. Exceptions to the normal application of the conflict rules II.4.
II.5. Proof of foreign law II.5.
III. CONFLICT OF LAWS RULES III.
III.1. Contractual obligations and legal acts III.1.
III.2. Non-contractual obligations (torts and delicts, unjust enrichment, negotiorum gestio, etc.) III.2.
III.3. The personal status, its aspects relating to the civil status (name, domicile, capacity) III.3.
III.4. Establishment of parent-child relationship, including adoption III.4.
III.5. Marriage, unmarried couples, partnerships, divorce, judicial separation, maintenance obligations III.5.
III.6. Matrimonial property regimes III.6.
III.7. Wills and successions III.7.
III.8. Real property

Immovables, movables (it does not appear useful in this context to insist on detailed rules on intangibles). III.8.

III.9. Insolvency III.9.

 

I. SOURCES OF THE RULES IN FORCE

I.1. National rules

In Italy, issues of private international law are governed by Act 218 of 31 May 1995, which replaced sections 16 to 31 of the general legal provisions of the Civil Code.

I.2. Multilateral international conventions in force

Complete list of multilateral international conventions in force

See the attached list PDF File (PDF File 12 KB) for the multilateral international conventions in force in Italy.

I.3. Principal bilateral conventions in force

Non-exhaustive list of the bilateral conventions most frequently applied by the courts

The bilateral conventions applied in the past to private international law issues between Italy and individual Member States of the European Union have been superseded by the Community instruments adopted in the same field.  The EC Regulations that are applied most frequently are Council Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters; Council Regulation (EC) No 2201/2003 on parental responsibility; Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

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For issues between Italy and non-member countries, the most frequently applied bilateral conventions are those on legal aid and on the recognition and enforcement of judgments that are in force with Argentina (Rome, 9.12.1987), Brazil (Rome, 17.10.1989), the Russian Federation and the other States of the former USSR (Rome, 25.1.1979), the Republics of former Yugoslavia (Belgrade, 7.5.1962), some of the United Kingdom's former dominions, including Australia and Canada, (London 17.12.1930), with Switzerland on the recognition and enforcement of civil and commercial judgments, (Rome, 3.1.1933) on damages for road accidents (Rome, 16.8.1978) and with Bulgaria (Rome 18.5.1990), Romania (Bucharest, 11.11.1972) and Turkey (Rome, 10.8.1926).

II. IMPLEMENTATION OF CONFLICT OF LAWS RULES

II.1. Obligation of the judge to apply conflict of laws rules on his/her own initiative?

To what extent and in which circumstances do the judges have to apply choice of law rules even when this was not pleaded by the parties?

Under Italian law, applying conflict of laws rules in this particular context is part of the judge's normal functions. He/she must decide what law is applicable, irrespective of whether or not this is pleaded by the parties (iura novit curia).

II.2. Renvoi

When the conflict rule of the court seised designates a foreign law, it may happen that the latter itself designates, by way of the application of its own conflict rules, another applicable law.

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For example: the French conflict rule designates English law to govern the capacity of an English national residing in France. The English conflict rule, however, refers to the law of the country of residence, i.e. French law.

Please indicate if your conflict of laws’ rules know renvoi and to what extent they accept that the foreign law refers back to your law or designates the laws of a third country as applicable law.

Renvoi to the law of another country that refers back to Italian law occurs in Italy when the foreign law of referral accepts or itself provides for renvoi to the Italian law. This renvoi does not occur when the applicable law was chosen by the parties or involves provisions concerning the form of acts or non-contractual obligations.

II.3. Change of connecting factor

What happens if the connecting factor changes, e.g. in the case of the transfer of movables?

The above rules apply.

II.4. Exceptions to the normal application of the conflict rules

  • May the courts refuse to apply the applicable law in case of inconsistency with international public policy? And are there statutes or other rules that apply on the territory of your state without having regard to the conflict rules (mandatory rule, in the sense of “lois de police”)?
  • Under Italian law (Section 16 of Act 218/1995) the judge cannot apply the foreign law of referral if its effects are “contrary to public policy”. This is usually understood to mean "international public policy".
  • Under Italian law (Section 17 of that Act), in cases of conflict of laws, the provisions of Italian law prevail and no derogation is allowed, notwithstanding the reference to the foreign law, insofar as it deviates from the purpose and scope of the national law provisions.

II.5. Proof of foreign law

  • Respective role of the judge and the parties?

    The judge proves the foreign law. He/She can also obtain help from the parties.

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  • Which modes of proof are accepted?

    The foreign law is proved as if it were a fact. Accordingly, the instruments specified in international conventions, information provided by the foreign authorities via the Ministry of Justice, and opinions of experts or specialist bodies can be used as modes of proof.

  • What happens if the foreign law cannot be proven ?

    The law of referral is applied by using other connecting factors provided for in the same case, where possible. Failing this, Italian law applies.

III. CONFLICT OF LAWS RULES

III.1. Contractual obligations and legal acts

A simple reference to the 1980 Rome Convention is not sufficient. Rules on questions that are not covered by the Rome Convention deserve close attention.

Italian law expressly provides for this. For contractual obligations it specifically refers to the Rome Convention of 19 June 1980. For cases not governed by this Convention it refers to the other relevant international conventions, as applicable.

Determination of the applicable law is, however, subject to contracts freely entered into by the parties.

Application of the designated law through an international convention or through the will of the parties can, however, be ruled out if it is deemed incompatible with public order (for example, if it is incompatible with police or security provisions).

III.2. Non-contractual obligations (torts and delicts, unjust enrichment, negotiorum gestio, etc.)

Act 218/1995, cited above, specifies the rules applicable in the following cases of non-contractual obligations: unilateral promise (law of the State in which the promise is made); credit instruments (1930 Geneva Conventions on bills of exchange, promissory notes and cheques, whereas for other credit instruments, for primary obligations, the law of the State in which the instrument is issued applies); voluntary representation (law of the State in which the representative has his business establishment or in which he primarily exercises his powers); obligations arising from the law (law of the place in which the event occurred that gave rise to the obligation); liability in tort/delict (law of the State in which the event occurred, without prejudice, where requested by the victim, to the application of the law in which the act occurred that caused the damage and without prejudice to reference to the national law if only citizens of one State are involved).

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III.3. The personal status, its aspects relating to the civil status (name, domicile, capacity)

Personal status and capacity and the existence and content of personal rights, including the right to a name, are governed by the national law of the interested party, except for the rights that derive from family relationships, to which the referral rules laid down by Act 218 /1995 apply on a case-by-case basis.

III.4. Establishment of parent-child relationship, including adoption

As regards parent-child relationships, legitimate child status and citizenship are acquired on the basis of the national law of the parents or one of the parents at the time of birth. Tor establish the parent-child relationship, reference is made to the national law of the child at the time of birth.

As regards adoption, in the case of adoption of a child for the purposes of giving him/her legitimate child status that is decided by the Italian courts, Italian law applies.

For other conflict of laws' rules, Article 38 of Law 218/1995 contains detailed provisions on the different scenarios considered.

III.5. Marriage, unmarried couples, partnerships, divorce, judicial separation, maintenance obligations

As far as matrimonial matters are concerned, personal relations between spouses are regulated by the law of the common nationality of the spouses; otherwise they are regulated by the law of the State where the couple have mostly lived.

The law applicable to personal relationships as a general rule also covers matrimonial property regimes, but in the latter case it can be derogated from where otherwise agreed by the spouses or in other cases specifically provided for by law.

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Italian law does not recognise forms of union other than marriage as an autonomous institution.

Judicial separation and divorce are regulated by the law of the common nationality of the spouses; failing that, by the law of the State where the couple have mainly lived.  In the latter case, if the foreign law does not provide for the above institutions, Italian law applies.

Family maintenance obligations are regulated by reference to the Hague Convention of 2 October 1973.

III.6. Matrimonial property regimes

In Italy the general principle of a matrimonial property contract between spouses applies.

They are allowed to opt for an alternative regime to that of the matrimonial property contract, such as separation of estate or another regime established by the spouses by agreement.

III.7. Wills and successions

Succession is regulated by the national law of the deceased at the time of death. While still alive, the deceased can, by means of a statement in the will, make his succession subject to the law of the country in which he resides; if he is an Italian national, this choice does not affect the rights of priority heirs resident in Italy.

As for the form of the will, it is considered valid if recognised by the law of the place in which the testator has disposed of his assets, or by the law of the State of which, at the time of the will or of death, the testator was a citizen, or by the law of the place where the testator was domiciled or resident at that time.

III.8. Real property

Immovables, movables (it does not appear useful in this context to insist on detailed rules on intangibles).

Property and other rights in rem are governed by the law of the State in which the property is situated.

III.9. Insolvency

Under Italian law there is no express provision for the law applicable in cases of conflict concerning insolvency.

Council Regulation (EC) No 1346/2000 is referred to for uniform rules on conflict of laws between the EU Member States.

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Last update: 16-01-2007

 
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