Tort and Regulatory Law in Italy
In an effort to synthesise a complex issue, one may say that the impact of administrative law rules on Italian tort law is at least twofold.
Liability for Failure to Regulate Health and Safety Risks
As one can notice, the discussion on liability of the State for failure to regulate health and safety risks is at a very early stage. Judicially, many jurisdictions have not yet been confronted with the question. Others have generally ruled on the issue only rarely and recently. Theoretically, an important doctrinal effort seems necessary to conceptualise, understand and delimit precisely the scope and the conditions of this specific case for liability. This paper was a first attempt to draw some conclusions from the viewpoint of positive law and to sketch some of the possible future scenarios. Our impression is that there is in our legal systems more space for this type of State liability than one would initially expect. Empirical data are necessary to precisely assess whether the court second-guessing could in fact achieve the objectives of the legal system. Our feeling is that the control by courts of State’s action or inaction to regulate health and safety risks is beneficial, at least in some circumstances. The delimitation of the scope of the control and the precise conditions for compensation needs to be further elaborated upon.
Damages as a Remedy for Unlawful Administrative Action
The increase in the powers of public authorities is rightly accompanied by a concern that they should be neither abused nor exceeded. One form of control lies in the judicial remedies, of which the least employed is damages. This is not surprising since, regardless of the loss sustained, the unlawfulness of an administrative act does not automatically confer any right to compensation. Where an administrative act is unlawful because it involves a tort such as negligence, nuisance or trespass, then it is well-established that the public authority responsible will be liable to pay damages to those whom it affects. It is, however, unlikely that one of those torts will be committed where the unlawfulness stems from a breach of the rules of natural justice or a failure to consider all the relevant factors. Nor will they necessarily be involved where an authority misuses or exceeds its powers; for example, by the wrongful refusal or cancellation of a licence. Nevertheless, the extent of governmental regulation means that loss for individuals and businesses is not inconceivable where these types of illegality take place. If there is no right to compensation in such cases, then success in obtaining certiorari or mandamus might well be regarded as a pyrrhic victory.