Jurisdiction (Under Italian Law)

Introduction: the debated notion of jurisdiction

The concept of jurisdiction is indeed difficult to define. The search for a definition of jurisdiction has often led scholars to overlook the fact that it can only be understood by locating it in social and legal life.

Jurisdiction is generally characterised as a function of the State, as opposed to the administrative and legislative functions that constitute the three functions of the State, exhaustive of all its tasks and powers. In this sense, it is commonly referred to as the enforcement of law, the settlement of disputes, the implementation of sanctions, or the substitution of public activity for the activity of others.

One of the most famous definitions of jurisdiction is that provided by Chiovenda, for whom jurisdiction is 'implementation of the law by substituting the activity of public bodies for the activity of others'.

The definition available on the website of the Italian Ministry of Justice is similarly expressed, where it says that jurisdiction is one of the fundamental functions of the State, exercised by the magistrates that make up the judicial order and directed to the application of legal norms to individual cases.

According to a different approach, which detaches the concept of jurisdiction from the functions of the State, jurisdiction represents the assertion of the legal system in the concrete case. Depending on the diversity of the concrete case, jurisdiction can then manifest itself concretely in different ways.

The Italian judicial system: ordinary jurisdiction and special jurisdictions

The judicial system is composed of all the organs of the State called upon to perform the function that is technically called ius dicere, i.e. to take a decision on a given dispute according to the rules of law.

These organs constitute, depending on their organizational structure and the type of matter on which they are called upon to judge, constitutional jurisdiction, ordinary jurisdiction or special jurisdictions.

The judicial system distinguishes between two jurisdictions in civil and criminal matters, which are exercised by ordinary judges (Art. 1 of the Judicial System Act and Art. 1 of the Code of Civil Procedure). Ordinary jurisdiction is exercised by ordinary magistrates and concerns matters that the law does not reserve for special courts. The organs of ordinary jurisdiction are, for example, the General Court, the Court of Appeal and the Court of Cassation. Other jurisdictions are called special jurisdictions. They include administrative jurisdiction. Special jurisdiction, therefore, concerns matters that the law reserves to a special judiciary. Organs of special jurisdiction are, for example, the Regional Administrative Courts and the Council of State. Depending on the areas and competences, jurisdiction is differentiated into constitutional, civil, criminal, administrative, accounting, tax and military. The main instrument of jurisdictional activity is the trial, which through the adversarial process of the parties aims at the pronouncement of a measure, e.g. a judgment, by which the law is interpreted and applied to the concrete case.

The limits of jurisdiction. In particular, jurisdiction in private international law

Our legal system contains a set of rules specifically designed to determine, by means of specific criteria, the disputes to be submitted to the jurisdiction of the Italian State.

The rules on jurisdiction perform their function by identifying the circumstances in disputes that are suitable for determining whether that dispute should be submitted to the State's jurisdiction. A distinction is made between special and general jurisdiction rules. The former are those intended to apply with respect to specific categories of disputes. E.g. disputes concerning obligations. Among the general jurisdiction criteria, on the other hand, the main core of rules were Articles 1-5 and 37 of the Code of Civil Procedure. Articles 2, 3 and 4 were repealed by Law 218/1995, which in Articles 3, 4 and 7 contains the current rules on the subject.

In private international law, the general criterion for identifying Italian jurisdiction is the defendant's domicile or residence in Italy (Art. 3 L.218/1995). Italian jurisdiction exists when the defendant is domiciled or resident in Italy or has a representative there authorized to stand trial pursuant to Article 77 of the Code of Civil Procedure and in the other cases where it is provided for by law.

Jurisdiction also exists on the basis of the criteria established by Sections 2, 3 and 4 of Title II of the 1968 Brussels Convention (made enforceable by Law No. 804 of 21 June 1971), replaced first by Regulation (EC) No. 44/2001 and subsequently by Regulation (EU) No. 1215/2012, also known as the "Brussels I bis" Regulation, in force since 10 January 2015. The "Brussels I bis" Regulation applies in civil and commercial matters, regardless of the nature of the court.

References

G. Chiovenda, Istituzioni di diritto processuale civile, II, Napoli, 1934, p. 7 ss., in part. p. 8, from whom the quotation above;

R. Iannotta, Art. 1, in Codice di procedura civile, a cura di N. Picardi – B. Sassani – A. Panzarola, I, VI ed., Giuffrè, Milano, 2015, p. 3 et seq.;

S. Satta, Giurisdizione (nozioni generali), in Enc. Dir., XIX, Giuffré, Milano, 1970, p. 218 et seq.;

V. Starace, Limiti della giurisdizione (diritto internazionale), in Enc. Dir., XIX, Giuffré, Milano, 1970, p. 428 et seq.

Websites

For the definition of jurisdiction available on the website of the Italian Ministry of Justice see: https://www.giustizia.it/giustizia/it/mg_14_3_1.page?contentId=GLO53027&previsiousPage=mg_14_3;

For a review of the structure of the Italian judicial system see: https://www.csm.it/web/csm-internet/magistratura/il-sistema-giudiziario

About jurisdiction in private international law see:

D. G. Daleffe, Diritto internazionale privato e giurisdizione italiana, 25 novembre 2016, available at: https://www.altalex.com/documents/news/2016/11/22/diritto-internazionale-privato-e-giurisdizione-italiana

Treccani Online, voce Competenza giurisdizionale. Diritto internazionale privato, available at: https://www.treccani.it/enciclopedia/competenza-giurisdizionale-diritto-internazionale-privato/