Features - Overview of the Sources of Italian Law

Raffaele Ladu holds a "laurea" (roughly equivalent to a Master's Degree) in General and Experimental Psychology from the University of Padua and is now studying Law at the University of Verona. He is currently a mainframe programmer at the Cariverona Banca Spa, one of the liveliest Italian banks, and he is also an UILCA trade unionist (affiliated to UIL - Unione Italiana del Lavoro). He is a self-taught Internaut, and his love for the English language has allowed him to get the coveted Cambridge Proficiency in English, but doesn't guarantee that he has written a flawless article!

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Introduction

Among the countless inconveniences of the Italian Legal System, the one I focus on is the overly complex categorization of legal sources mandated by our Constitution.

This problem is the topic of the book, Le Fonti del Diritto, by Prof. Maurizio Pedrazza Gorlero, PADUA CEDAM, 1995, ISBN: 88-13-19155-3.  And of this good website, which is in Italian. Those who cannot read Italian, and are not interested in theoretical details, can make use of this article.

The Interplay of International and National Legal Sources

Sources are arranged in hierarchical order:

  1. Customary international law;

  2. Constitution Kernel;

  3. Lateran Treaty;

  4. European Union legislation;

  5. Other Constitution Articles;

  6. Other international treaties;

  7. Italian Legislation.

To understand this schema, it is essential to read the Italian Constitution; the up-to-date online Italian version is here, but you could make do with an English version like this.

Article 10 of the Italian Constitution states that the Italian Legal System, although dualistic, abides by the general principles of International Law; even the Constitution is overruled by them.

The Constitution Kernel in the above schema is the set of the articles recognizing basic human rights, the Republican form, and protecting the Constitution from abusive amendments.

It is not easy to determine which articles belong to such a kernel [luckily our Constitution framers did not dare write an operating system]; legal doctrine says that Article 139, which says that Italy cannot stop being a [democratic] republic, is the bootstrap, and all articles that complete the definition of "democratic republic" (Articles 1 to 54), plus the one that regulates the passing of amendments (Article 138) comprise the kernel.

Among the kernel articles, Article 7 is of paramount importance, since it dictates that the relationships between the legal systems of Italy and the Roman Catholic Church should be regulated by Lateran Treaty, which can therefore override any piece of Italian legislation, except the kernel.

European Union legislation can take two forms: regulations and directives; as a general rule, European regulations are self-enforcing, while directives only push national Parliaments to enact appropriate legislation.

Since the Italian Parliament is a real laggard in turning EU directives into laws, and EU legislation is extremely pervasive, it is de rigueur to check whether a relevant directive has been enacted in Italy yet – if not, you may consider suing Italy in the European Court of Justice under the Francovich doctrine.

No problem should arise in identifying non-kernel Constitution articles, so I only say how the unconstitutionality of a statute is verified in Italy.

Unlike the USA, in which every court is allowed to ignore unconstitutional statutes (and to impose its opinion to lower courts through the stare decisis principle), every Italian Court dubious about the constitutionality of a relevant statute has to refer the case to a specialized tribunal, the Italian Constitutional Court.

After the Constitutional Court rules about the constitutionality of the statute, the "judex a quo – referring court" can decide the original case; if the Constitutional Court ruling is against the statute (i.e., the statute is deemed unconstitutional per se or can only be saved by proper construction), it is also binding for all other courts.

This procedure does not apply to violations of European Union directives: as the European Court of Justice repeatedly deprecated it, every Italian Court is now entitled to nullify conflicting national laws.

About other international treaties and their rank among legal sources, the Italian Constitution is all but clear (see Articles 10 and 11), and three doctrinal opinions have therefore sprung:

  • The traditional doctrine (followed by the Italian Constitutional Court in a 1964 decision) does not recognize any pre-eminence of laws enacting international treaties over subsequent laws, which could therefore infringe treaties without remedy;

  • Another doctrine is inspired by the customary international law principle "Pacta sunt servanda – Deals are to be observed" and therefore infers that international treaties always overrule subsequent conflicting laws;

  • A third opinion considers laws enacting international treaties as peculiarly resistant to repealing, and therefore subsequent conflicting laws have to buckle under their force; the argument rests on Article 11, which allows Italy to concede part of its sovereignty for the sake of world peace – and subduing its legal system to the binding force of a treaty is a concession of sovereignty.

I am sorry for reporting an excerpt of the Italian doctrinal debate, but it was unavoidable since no clear winner appears among these opinions; although the Italian Constitutional Court followed the first opinion in 1964, it might change its mind in the future.

An extremely incomplete list of treaties Italy has access to is here; the Italian Ministry of Foreign Affairs is displaying some interesting documents here, but hardly any are international treaties – so you’d better resort to other online resources.

How to Find Italian National Legislation (Offline and Online)

Only some splinters of Italian Legislation are online, free, and up-to-date at the same time, so I’d better focus on what is available offline now.

The most renowned collection of Italian Statutes, used by nearly everybody that could afford it, is Le Leggi d’Italia, a 60 volume looseleaf collection published by De Agostini Giuridica.

Statutes are grouped by topic, which are in turn alphabetically arranged; the binding is robust, and its retail price in Italy is about 7 Million Lire (3,615.20 Euro), VAT included.

Updates are issued monthly, but their price is unpredictable as it varies with the size of each issue.

Those who are uncomfortable with paper can resort to CD-ROM publications like:

The first is a 2-CD work that claims to contain a huge selection of Italian Legislation, annotated with the most recent decisions of the Italian Supreme Courts, updated via 22 CDs throughout the year, and even every week through the Web.  I am sorry that I cannot tell you the price of this marvel.

The second work is a single CD allegedly listing all Italian Statutes passed since 1945 (plus the previous legislation still in force); it is updated both online (every week) and via quarterly CDs. Subscription rates are quite complex, so I advise you to read them at the bottom of this page; if you need to study Italian Case Law as well, other works by the same publisher will probably suit your need.

The third work contains all Italian Statutes passed since 1861 in their original form (not their current text), is updated through a quarterly CD and online; if you also need to study Italian Case Law, you can look for other works by the same publisher here.

A Library specializing in Italian Law should also subscribe to the Gazzetta Ufficiale, our official journal, published by the Istituto Poligrafico e Zecca dello Stato – but as even Italian subscribers experience egregious postal delays, don’t hold your breath.

Online resources available upon subscription are:

  • Giuritel, the online version of the Gazzetta Ufficiale;

  • Italgiure, kept by the Italian Supreme Court of Cassation.

Giuritel comprises all issues of the Gazzetta Ufficiale, including those not yet printed, from New Year Day 1987, plus the consolidated text of the most important statutes still in force (like the Civil and Criminal Codes, several "Testi Unici – Restatements", and so on) and of the most important international treaties Italy has access to.

Italgiure premiered in 1969 and purports to be the ultimate Italian Legal Database, since it contains the whole Italian Legislation, updated, and all the sentences of the Italian Supreme Courts straight from the horse’s mouth. It is not just for lawyers, but the electronic tool used by Italian Supreme Court Justices themselves!

Both databases can be queried using an IBM 3270 Terminal Emulator or a Web interface; but the most outdated feature of these online services is their stiff subscription fees, which are detailed here (for Giuritel) and there (for Italgiure): you can choose between a high flat fee and low minute/byte rates and vice versa, and Giuritel even offers bulk discounts (i.e., you can get multiple user IDs at a discount rate), but they are too expensive anyway for a non-professional.

Other online versions of the Gazzetta Ufficiale are hosted by:

Free Online Italian Legal ReSources

The Italian Parliament has begun putting Italian legislation online; this page allows you to search or browse bills and acts discussed or passed since May 1996.

Useful portals are:

Some Italian Universities and research institutes are putting online the most relevant legal material, and here is a brief list of their efforts:

There are also some free sites featuring the latest issues of the Gazzetta Ufficiale, like:

  • The Comune di Jesi, which hosts an incomplete, but useful version of the last two years of the Gazzetta Ufficiale here;

  • The ISP Didattica.it has set up an Internet Explorer Channel that should let people get the summary of the Gazzetta Ufficiale each morning via their computer (and the full-text of the most important documents) – but when I tried it, it was not yet functional;

  • L’ANSA/Gazzetta Ufficiale, an online summary of very little value, even though ANSA is the greatest news agency in Italy.

Hints to Understanding Italian Case Law

Italy is a Civil Law country, and therefore no court should impose its precedents upon lower courts; but the precedents of the highest courts of each jurisdicion cannot be ignored lightly:

Such courts are:

  • The Corte Costituzionale (Constitutional Court);

  • The Suprema Corte di Cassazione (Supreme Court of Cassation);

  • The Consiglio di Stato (Council of State);

  • The Corte dei Conti (State Auditors’ Department).

The Constitutional Court can declare a law unconstitutional, or deem which interpretation may save it from unconstitutionality; I am very sorry to say that in spite of its being the cornerstone of the Italian Justiciary, it lacks an official website – and you should make do with this, kept by a Professor in the University of Genoa.

The Supreme Court of Cassation vacates and remands illogical, inconsistent or illegal sentences, and thus enforces uniformity in construing Italian law; many of its sentences are published by legal periodicals and even online sites (none of them free), but the only way to get all of them is to subscribe to resources like:

  • The aforenamed Italgiure database, which lists all sentences in full;

  • CD Juris Data – Giurisprudenza, published by Giuffré, which only lists maxims, i.e., the "rationes decidendi - basic principles" of the sentences; other CDs by the same publisher report the full text of sentences on specific matters.

The Council of State gives advice to the national government, and is the court of last resort for administrative suits; it lacks a website, but a site reporting most of its sentences is Giust.it (accessible with a subscription), and lots of them can be found using a search engine, as such sentences affect the lives and trades of many people.

The State Auditors’ Department has to endorse some government acts, oversees the proper allocation and spending of public funds, and tries public officials charged with squandering or embezzling them; here is its website, accessible for free.

Other interesting courts are:

  • The Tribunale Supremo Militare (Supreme Military Court); it still lacks its own website, but its sentences' maxims can be accessed through Italgiure, and two lower military courts (in La Spezia and Naples) are setting up their sites;

  • The Tribunale Superiore delle Acque Pubbliche (Upper Court on Public Waters), whose sentences can be read in Italgiure only, as such tribunal and the lower courts of the same kind lack websites;

  • The Commissione Tributaria Centrale (Central Tax Committee), which is the court of last resort on tax matters, and lacks a website;

but their sentences can be vacated by the Supreme Court of Cassation.

A CD-ROM containing the sentences of the Council of State and the Central Tax Committee since 1986 is ITALEDI CD-ROM, published by Italedi and distributed by Giuffré.

Differences between "Legge", "Decreto Legge", "Decreto Legislativo"

All such acts are pieces of national legislation, and of equal value, as they can override or repeal each other; but an important difference is to be kept in mind if you undertake serious legal research:

  • A "Legge" (shortened as "L.") is discussed and passed by the Parliament, and is usually effective from the 15th day after approval until repealed (see also Articles 70 to 74 of the Constitution);

  • A "Decreto Legge" (shortened as "D. L.") is passed by the Government to address a serious contingency; it is effective from the day after its issue, but should last just three months unless the Parliament converts it into a "Legge" (see also Article 77 of the Constitution);

  • A "Decreto Legislativo" (often shortened as "D. Lgs.") is an usually complex statute passed by the Government after a "Legge" has instructed it to do so (see Article 76 of the Constitution).

The only problem with the "Leggi" is that the Italian Parliament is becoming increasingly lazy, and therefore, when passing a new bill, it often leaves it to the reader to determine which statutes have been implicitly superseded by the new one.

Greater problems are posed by the "Decreti Legge": the Government resorts to them very, very often, and in the last two decades it often reissued the "Decreti Legge" the Parliament had not been able to convert in time.

So, if you are so unlucky as to undertake research about a "Decreto Legge", you should:

  • Get the "Decreto Legge" you need;

  • Check whether it was the renewal of an expired one; although such renewals were often nicknamed "reprints", "xerocopies" and so on, they often feature slight variations in order to avert a reproach by the Italian Constitutional Court;

  • Check whether it was finally turned into a "Legge", or renewed by another "Decreto Legge", or remitted because the Government realized that the Parliament could not be pressured further;

  • Don't forget to get the "Legge" it was converted into: as the Parliament is allowed to amend the "Decreto Legge" as it sees fit (you can think to a "Decreto Legge" as a bill provisionally effective), the "Legge" and the "Decreto Legge" are often quite different - to the befuddlement of Italian Lawyers too.

"Decreti Legislativi" should be a simpler case: when the Parliament recognizes that a badly needed statute is too complex to be issued by itself, it invites the Government to make it by passing a "Delega Legislativa" which states how the new statute should be written, and its deadline.

The Government can ignore the request, but if it accepts it, it has to write the statute and pass it within deadline, like a good attorney drafting a will or a contract or a trust.

But it has already happened that the Government acted "ultra vires - beyond the scope of the Delega Legislativa", and the ensuing "Decreto Legislativo" was therefore deemed unconstitutional.

So, when looking for a "Decreto Legislativo", don't forget to look for the corresponding "Delega Legislativa" (or "Deleghe Legislative", as there may be more than one); moreover, don't forget that the "Delega Legislativa" often allows the Government to directly amend the "Decreto Legislativo" in the first six months after its passing, in order to solve "teething problems" and the like.

You may wonder whether such "Decreti Legislativi" are worth their while, and I admit that I am afraid not. In 1989 the current Criminal Procedure Code was passed as a "Decreto Legislativo" and hailed as the showcase of contemporary Italian doctrine and legislative craft … but just a few months later the Constitutional Court struck down a dozen of its articles as unequitable and unreasonable - in a word, conflicting with Article 3 of the Constitution.

Government Regulations

Laws can rule directly, or trust the Government to issue a "Regolamento" in order to indicate how they should be enforced, or how citizens should ask for what they are entitled to.

"Regolamenti" have the advantage that the Government can be swifter than the Parliament in updating them according to advances in technology, but they cannot always be used: some legal matters are reserved to Laws, and most "Regolamenti" had to be authorized by a specific Law.

"Regolamenti" are published in the Gazzetta Ufficiale; so any online or offline resource based upon it should contain them; moreover, since the Corte dei Conti has to imprint every instance of Government regulation, it might eventually decide to list them on its website.

A "Regolamento" may belong to one of these categories, hierarchically arranged:

  1. "Decreto del Presidente della Repubblica - D. P. R."

  2. "Decreto del Presidente del Consiglio dei Ministri - D. P. C. S."

  3. "Decreto Interministeriale - D. I."

  4. "Decreto Ministeriale - D. M."

  5. "Circolare"

The first kind, the "Decreto del Presidente della Repubblica", is the most common kind, and unlike the others it prevails on, does not usually require prior authorization by a Law.

"Circolari" are not regulations proper: they are simply directions issued by the competent Ministry to its employees, and they affect the public at large to the extent civil servants comply with them.

For the sake of their importance, some websites like the one of the Ministero della Funzione Pubblica (quick and dirty translation: Ministry of Bureaucracy) have a selection of them, and Pratica delle Leggi d'Italia, a CD-ROM issued by De Agostini Giuridica, claims to have all the "Circolari" that have been issued since 1996 - but there is no online update, only a quarterly CD.

Regional Legislation

Italian Constitution reserves the following matters to Regions (Article 117):

  • Organization of the offices and the administrative bodies dependent on the Region;
  • Town boundaries;
  • Urban and rural police;
  • Fairs and markets;
  • Public charities and health and hospital assistance;
  • Vocational training of artisans and scholastic assistance;
  • Museums and libraries of local bodies;
  • Town planning;
  • Tourist trade and hotel industry;
  • Tram and motor coach services of regional interest;
  • Roads, aqueducts, and public works of regional interest;
  • Lake navigation and ports;
  • Mineral and spa waters;
  • Quarries and peat bogs;
  • Hunting;
  • Fishing in lake and river waters;
  • Agriculture and forestry;
  • Artisanship;
  • Other matters indicated by constitutional laws.

Moreover,

  • the laws of Republic may delegate power to the Region to issue norms for their enforcement.

Thus implying that you may have to supplement your knowledge of national legislation with the one of regional legislation.

If you like CD-ROMs, this may be good for you:

If you prefer to access the Regions' websites (most are free), here you are:

Regional legislation comprises:

  • The "Statuto";

  • "Leggi";

  • "Regolamenti".

The "Statuto" is more similar to the charter of a colony incorporated by Royal Decree than to the Constitution of an U.S. state, but it constrains regional legislation.

Regional "Leggi" are a tricky part of Italian Law, as they are usually intertwined with National legislation; in most cases, a national statute frames the legal principles regional laws are supposed to enact – and often provides a default regulation in case regions fail to meet the deadline for updating their legislation.

Such a National law is called "Legge Cornice" or "Legge Quadro" ("Frameset Statute"), but I prefer comparing it to a tune a class of organists or jazz players is asked to improvise on: everybody can play their melody, to the extent that it can be music legally derived from the tune (and if the players go beyond the rules of musical variation, the master is allowed to scrap their tunes, reproach the players or even punish them).

This means that it is good practice, when retrieving a regional "Legge", to also fetch the "Frameset Statute" it refers to, if any.

Regional "Regolamenti" are the counterpart of government regulations, but they are rarely used now.

Sources of Labour Law

Italian Trade Unions, although crestfallen, are still much more powerful than their American counterparts, and the contracts they sign can be considered a bona fide legal source in Italy. Let’s see how.

As Article 36 of the Italian Constitution states the worker’s right to adequate pay; when Italian judges had to determine how much money makes a salary adequate, they almost invariably referred to the collective contracts signed by the unionized colleagues of the plaintiffs – thus making such collective bargains the measure of the minimum salary every worker is entitled to, whatever his trade union affiliation.

Collective bargains (which obviously deal with much more than pay) are no less layered than any other field of Italian legislation, and their hierarchy can be sketched as such:

  • National Legislation;

  • "Accordi interconfederali" (Cross-industry Agreements);

  • "Contratti collettivi di categoria" (Industry-wide Agreements);

  • "Contratti integrativi aziendali" (Additive Company-wide Deals);

  • "Contratti individuali di lavoro" (Individual Deals).

National Legislation does not just mean "Italian Statute Law", as not only has Labour Case Law become a respectable legal source in Italy, but also because some European Union Directives (like the 93/104/EC [Italian Text - English Text]) can be enacted either by the Parliaments of the Member States, or through agreements between employers' and workers' associations.

The agreements European Union Legislators must have thought to must have been the "Accordi Interconfederali ", which bind all workers’ unions and employees’ associations from before the 1957 Treaty of Rome – and have often been translated into law by the Parliament in order to remove all doubt about their effectiveness.

While the "Accordi Interconfederali" are supposed to restate the basic rules of the game and to address the concerns of all workers, whatever their trade, the "Contratti collettivi di categoria " are devoted to the needs of peculiar industries – among them salary, which cannot be effectively bargained for at the national level.

The "Contratti collettivi" are usually nationwide agreements; but since every industry has thriving and failing firms, and even healthy firms have their peculiarities, the different needs of each firm are addressed by the "Contratti integrativi aziendali ".

Most Italian workers are content with what collective bargaining gives them, but some deserve or strive for more, and their individual deals with their employers are called "Contratti individuali di lavoro".

This hierarchy is important because the lower layers cannot grant the worker LESS than it is granted by the higher layers, both in pay and other guarantees; as regards labour-legal research, it is obvious that the most reliable sources about individual deals are either the workers themselves or their employers – but searching for higher level agreements is a completely different matter.

There are several paper and CD-ROM works devoted to such contracts, like:

  • TUTTOLAVORO, by Indicitalia, which contains not only labour contracts, but also all statute law, case law and regulations relevant to the subject;

But you could often make do with browsing the website of the Consiglio Nazionale dell'Economia e del Lavoro (National Council on Economics and Labour), and especially this page, as it introduces the currently effective industry-wide agreements and the company-wide bargains valid for major Italian firms.

It is also advised to look at the websites of the greatest Trade Unions in Italy, namely:

Although they don't list labour contracts themselves, as they must link to the websites of their industry, local or even company branches, which may have put the contracts relevant to them online.

Thanks and Farewell

Even though I tried to avert doctrinal debates and to spare you the subtleties an Italian legal professional must be privy to, I was not entirely successful, and could not prevent this article from being longer than expected.

But writing it has taught me lots of useful things I would have otherwise overlooked – and I hope that your reading this article will be no less stimulating than my writing it.

Among the several people I wish to thank, two deserve a mention:

  • Lyonette Louis-Jacques, probably the most renowned Law Librarian on the Net, as I learned a lot of things by taking her challenges (i.e., answering her requests for legal material);

  • Mario Marigo, my Professor of Forensic Medicine, as he gave me a good grade (28/30 - 4.667/5.000) for carrying out a Net search on Italian Medical Ethics that amazed him.

Comments and critics can be directed here, and even corrections of language mistakes are welcome (Italians are extremely picky about their native language, and I see no reason to deal with foreign languages otherwise).