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.
Governmental Liability after Francovich
Governmental liability used to be on the retreat, especially but not only in the field of negligence liability. In Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food the majority of the Court of Appeal flatly stated that not every infringement of Community law was a tort. Moreover, in the recent decision in Murphy v. Brentwood District Council the House of Lords, departing from Anns v. Merton London Borough Council, dramatically curtailed any hope—or fear, it depends on the point of view—of development of governmental liability in the field of economic loss.
Giving Effect to European Community Directives
Since the foundation of the European Community, the influence of European Community (EC) law on the national legal system has expanded in two ways: first, in the growth in volume and scope of the substantive law emanating from the EC's legislative institutions; and second, in the readiness of the courts of the Member States to enforce and give practical effect to those laws. Differences over substantive lawmaking have largely been played out in the political field, whereas controversy over the application and enforcement of EC law has taken place, as a result of decisions of the European Court of Justice (ECJ), mainly in the national judicial sphere. The ECJ developed the doctrine of direct effect at an early stage in its jurisprudence, to ensure that the body of law provided for in the EC Treaties would have effect in the various Member States without the need for national implementing legislation.l Through a series of cases the Court developed this doctrine and applied it to articles of the EC Treaties,2 to EC Regulations3 and, in a more limited way, to EC Directives. Direct effect means that provisions of EC law may confer rights upon individuals and are required to be directly applied by national courts at the suit of individual litigants, without the need for domestic implementing legislation.4 Article 189 of the EEC Treaty provides that Directives shall be binding as to their aim, but that the choice of form and method of their implementation remains with the Member States. Despite this provision, the ECJ nevertheless decided that Directives could be relied upon directly by litigants before national courts in certain situations.5 The Court has declared that Directives will not have direct effect where their terms are insufficiently precise or where, although clear and precise, those terms are conditional or leave some discretion to the Member States.6 The major limitation on their direct effectiveness, however, is that Directives cannot be directly enforced in a 'horizontal' situation, ie in proceedings against a private party rather than against the State.7 The case for their direct enforcement against the State appears to be based on a concept of estoppel whereby the State may not rely, as against an individual, upon its own failure to implement a Directive properly and on time.8