RECIPROCITY IN THE TREATMENT OF ALIENS IN ITALY: GOOD REASONS FOR ITS ABOLITION

in The Italian Yearbook of International Law Online
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References

1 Law No. 218 of 31 May 1995, GU Suppl. to No. 128 of 3 June 1995, in force as of 1 September 1995 ("Reform of the Italian System of Private International Law"). The English translation of this law has been published with an introductory note by GIAPDINA in ILM, 1996, f' 760 ff. Art. 73 of Law No. 218/1995 states: "(Repeal of incompatible provisions) Arts. 17 to 31 of the General Provisions [...J preceding the text of the Civil Code, as well as [...J Arts. 2, 3, 4 [...J of the Code of Civil Procedure, shall be repealed".

3 Some scholars warmly supported the repeal, or at least a substantial rephrasing, of Art. 16 of the General Provisions of the Civil Code. I confine myself to quote, among others, three contributions given at the 1996 Meeting of the Italian Society of International Law (Societa Italiana di Diritto Internazionale) on the Reform of the Italian System of Private International Law, and published in RDIPP, 1997, p. 75 ff.: Lnutttrr�, "II principio di reciprocita e la riforma del diritto internazionale privato"; LEANZA, "Considerazioni critiche sulla portata e 1'efficacia dell'Art. 16 delle disposizioni preliminari al codice civile"; and NASCIMBENE, "Brevi spunti in tema di trattamento dello straniero e principio di reciprocita". It must be recalled that a number of scholars had given support to the thesis of the repeal of Art. 16 as a direct consequence of the entry into force of the 1947 Constitution: see LA PERGOLA, Costituzione e adattamento dell'ordinamento italiano al diritto internazionale, Milano, 1961, p. 325; CASSESE, "Artt. 10- 12", in BRANCA (ed.), Commentario alia Costituzione - Principi fondamentali, Bologna/Roma, 1975, especially pp. 512-513; BARILE, Diritti dell'uomo e liberta fondamentali, Bologna, 1984, p. 33. However the Corte Costituzionale has spoken in favour of the constitutional legitimacy of Art. 16 of the General Provisions of the Civil Code: Corte Costituzionale, Decision of 23 March 1968, No. 11, reproduced in RDIPP, 1968, p. 639 ff. 4 Implicitly, then, the 1995 legislator was assuming that the rights provided for by (Italian or foreign) law, indicated as applicable by the Italian conflict rules, shall be secured to aliens independently of reciprocity: see C,4tvtr�oL�o, "Qualche riflessione in tema di reciprocita con riferimento alia surroga dell'ente straniero di assicurazione sociale", RDIPP, 1992, p. 870 ff. This position has been similarly upheld, in recent times, by C,v.b, Il principio di reciprocita, Milano, 1994, p. 65 ff.; LEANZA, cit. supra note 3, pp. 88-89; and TORIELLO, La condizione dello straniero, Padova, 1997, p. 178 ff. Among the judicial decisions, see Corte di Cassazione, Decision of 8 March 1999, No. 1951, reproduced in RDIPP, 2000, p. 130 ff. Here, although through a number of contradictory arguments, the Court judges Art. 16 of Civil Code's General Provisions inapplicable to rights pertaining to family relationships, which were previously governed by Art. 17 of Civil Code's General Provisions (now repealed). For a contrary view, see MENGOZZI, "La eondizionc di reciprocita e il diritto internazionale privato", RDIPP, 1994, p. 490 ff. This Author locates Art. 16 of the Civil Code's General Provisions in the context of private international law, but proposes a reading of Art. 16 "as human as possible", with further support from decisions by the Constitutional Court concerning some of the conflict rules. A new perspective on the relationship between the reciprocity condition and the private international law system was recently suggested by COSCIA, "Condizione di reciprocita e diritto internazionale privato", RDIPP, 2001, p. 557 ff. 5 Law No. 40/1998 and the related legislation were published, respectively, in GU Suppl. to No. 59 of 12 March 1998; GU Suppl. to No. 191 of 18 August 1998; GU Suppl. to No. 258 of 3 November 1999. For the English translation of the most relevant provisions of Law No.

40/1998 and a commentary thereof, cf. IYIL, 1999, pp. 315-335. Cf. also CAL6, La nuova disciplina della condizione dello straniero, Milano, 2000. 6 Furthermore, any alien enjoys a full equality of treatment with the citizen with respect to the judicial protection of rights and legal interests: Art 2, para. 5. For a criticism of the wording employed in these norms sinee the draft legislation was brought before the Chamber of Deputies of the Italian Parliament in 1997, see NASCIMBENE, La condizione giuridica dello straniero. Diritto vigente e prospettive di riforma, Padova, 1997, pp. 25-26. 7Full equality of treatment and rights with respect to Italian workers are furthermore secured to all foreign workers and their families (provided they are regularly residing) in accordance with Law No. 158 of 10 April 1981 implementing the ILO Convention No. 143 of 24 June 1975 (Art. 2, para. 3, of the Consolidated Text), concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers: on this point see Corte Costituzionale, Decision of 30 December 1998, No. 454, RDIPP, 1999, p. 54 ff. According to ADINOLFI, (I lavoratori extracomunitari. Norme interne e internazionali, Bologna, 1992, pp. 260-261, 282-283 and 368-370) a first cancellation of reciprocity as provided for by Art. 16 of the Civil Code's General Provisions was anticipated in nuce by Law No. 943 of 30 December 1986, containing rules in relation to employment and the treatment of non-European Community migrant workers, and combating clandestine immigration. 8 So-called carta di soggiorno: cf. Art. 9 of the Consolidated Text.

9 See respectively Arts. 22, para. 1 I ("Subordinate - regular or provisional - employment"), 39, para. 3, lett. c) ("Access to university courses") and Art. 35, para. 2 ("Public medical treatment concerning aliens who are not registered with the National Health Service"). 10 As to the treaties relating to the legal status of aliens cf. Art. 10, para. 2, of the Italian Constitution and supra in this Yearbook, CONFORTt, "Reflections on the Recent Amendments to the Italian Constitution Concerning Respect for International and European Community Law".

1 ' The Ministry justifies its position with the need to protect the rights and, more generally, the interests of the Italian citizens abroad (for a criticism of this attitude, see LAURINI, cit. supra note 3): the reciprocity in other words would exert a positive function (for a definition of this function see CAMP1GLI0, Il principio di reciprocitb nel diritto dei trattati, Padova, 1995, pp. 50- SI, 314-315). 12 See www.esteri.it/polestera/italstra/recipronew.htm. 13 Art. 40, para. 6, of the 1998 Consolidated Text, warrants a citation of its own. According to it, "aliens with a residence card, and regularly residing aliens - either included in an employment list or involved on a regular basis in a working or self employed activity - are entitled to access, on conditions of equality with Italian eitizens, to the lodging in public residential buildings, to the intermediary services offered by social agencies that may be arranged by single regions or local bodies in order to facilitate access to home renting, as well as to credit coneessions relating to building, restructuring, purchasing and renting the first lodging". This rule draws on the original provision of Art. 35, para. 1, of draft law No. 2295, communicated to the Presidency of the Senate on 2 April 1997. This provision envisaged that

"[t]he purchasing by aliens who regularly reside in Italy of the first residential lodging for Private use shall be exempted from the reciprocity condition". 4 See www.esteri.it/polestera/italstra/listarecipr.htm. 15 The same list is periodically forwarded to the pertinent administrations and bodies - namely, the Ministries of Home Affairs, of Justice, of Finance and of Industry, the National Notary Council, and to the Union of the Chambers of Commerce - for the necessary activities coming within their competence. As of 1 January 2002, the list includes 122 States. 16 This view is in accordance with case-law. While analysing the 1997 draft law, NASCIMBENE (cit. supra note 6, pp. 55-56) sketched an abrogative interpretation. This interpretation, which was originally confined to the conditions of access to self-employed activities, was later extended by the same Author to a wider set of cases (cf. "Lavoro autonomo, rcciprocita e diritti civiii: i problemi non risolti dalla nuova legge sull'immigrazione", Gazzetta giuridica, 1998, p. 1 ff.). More recently, see CARBONE and IvnLm, Lezioni di diritto internazionale privato, Padova, 2000, p. 39. 17 See CRISAFULLI, Lezioni di diritto costituzionale, Vol. III, 5th ed., Padova, 1984, p. 8; GUASTINI, `"Teoria c dogmatica delle fonti", in Cicu and MESSn·lEO, Trattato di diritto civile e commerciale, Vol. I, I, Milano, 1998, p. 191. See also Corte Costituzionale, Decision of 10 June 1982, No. 110, reproduced in Foro It., 1982, I, p. 1785 ff. 18 Rather, it is the Consolidated Text that seems to have been conceived as exhaustive (Art. I, para. 3), and that might then be regarded as a special norm governing the treatment of regularly residing aliens, to which Art. 16 would yield in any event. This view, intermediate between mine and that of the Ministry of Foreign Affairs, entails the applicability of Art. 16 with respeet to irregularly residing aliens and clandestine immigrants, with some additional difficultics: a few provisions of the Consolidated Text regulate the status of aliens with no reference to the

requirement that they be regularly residing (see, for instance, Art. 2, paras. 1 and 5; Art. 38, parma. 1; and the connected Art. 45, para. 1, of the Implementation Regulation). 9 As to the rights of natural (and legal) persons coming from the non-European Union States which are party to the European Free Trade Association (EFTA), i.e. Switzerland, Iceland, Liechtenstein and Norway, Art. 16 of the EFTA Treaty dictates the non applicability of national restrictions. 20 The Italian text of this judgment of the Corte di Cassazione has been published in RDIPP, 2001, p. 403 ff.

21 With reference to the new rules on private international law, see CARBON, "Commento all'art. 14", in PocAtt, TREVES, CARBONE, GIAPDFNA, LUZZATFO, MoscoNi and CLERICI (eds.), Commentario del nuovo diritto internazionale privato, Padova, 1996, pp. 70-71. 22 See supra note 2. 23 The Italian text of this judgment has been published in RDIPP, 2001, p. 130 ff.

24 It is necessary to point out that the Court of Vicenza in applying Italian law failed to discuss a general question of private international law, i.e. identifying the law applicable to tortious liability (as laid down in Art. 62 of Law No. 218/1995). It is also worth noting that ILO Convention No. 19 of 5 June 1925, concerning Equality of Treatment for National and Foreign Workers as regards Workmen's Compensation for Accidents (in force in Italy since 1928 and in Bosnia and Herzegovina since 1993), obliges each Contracting State to grant victims of work-related accidents occurring in its territory, "or... their dependants", the same treatment secured to its citizens with respect to compensation for damage (Art. 1). For a comment on the judgment of the Court of Vicenza, see CAMPIGLIO, "Abrogazione dell'Art. 16 delle preleggi per nuova disciplina?", RDIPP, 2001, p. 45 ff. 25 Corte Costituzionale, Decisions of 26 July 1979, No. 88, Foro It., 1979, I, p. 2542 ff.; 6 May 1985, No. 132, ibid., 1985, I, p. 1585 ff.; 18 December 1987, No. 561, ibid., 1989, I, p. 2113 ff.; 18 July 1991, No. 356, ibid., 1991, I, p. 2967 ff. See also D'ORAZio, Lo straniero nella Costituzione Italiana, Padova, 1992, pp. 241-242. 26 The Tribunale of Rome has in several cases upheld compensation claims brought by foreign citizens, regardless of any ascertainment of reciprocity conditions. See Tribunale di Roma, Decisions of 29 January 1993, Rivista giuridica della circolazione e dei trasporti, 1993, p. 558; 8 November 1993, Nuovo diritto, 1994, p. 1155, note by MOLFESE; 23 March 1996, Rivista giuridica della circolazione e dei trasporti, 1996, p. 785; 11 May 1996, ibid., 1997, p. 332. By contrast, the Corte di Cassazione makes a distinction (cf. Decision of 10 February 1993, No. 1681, RDIPP, 1994, p. 560 ff.): according to the Court, Art. 2 of the Constitution, when proclaiming the fundamental right to solidarity, exempts from reciprocity indemnity claims, but not claims for damages (e.g. with respect to access to the Guarantee Fund for Road Victims invoked by a widow of a foreign citizen). The Court maintains, in particular, that access to the Fund "only with improbable interpretative flights might be included [among the rights acknowledged by the European Convention on Human Rights]... (with reference, for example, to the right to life, Art. 1 of the European Convention, and to the right to the respect of private property, Art. I of Protocol No. 1 to the European Convention)". The Court then rejected the appeal filed against a decision pronounced by the Corte d ;4ppello di Roma (Decision of 22

February 1989, partially reproduced in RD1PP, 1990, p. 718 ff.), because the appellees's claim was to be upheld in any case, as reciprocity was proven. However, while awarding damages, the original decision by the Court of Appeals had attempted, in the light of the provisions of the Constitution, to limit Art. 16 of the Civil Code's General Provisions' scope of application and to reduce the reciprocity condition to merely a non-discrimination clause. Finally, another distinction can be detected in recent decisions between compensation for "biological damage" (included among the fundamental individual rights) and compensation for moral or property damage (subject to reciprocity): Tribunale di Monza, Decision of 8 May 1998, Responsabilita civile c previdenza, 1998, p. 1101, note by GAzzi, decision partially reformed by the Court of Appeals of Milan, with the Decision of 22 June 1999, explained infra in the main text. For an analysis of judicial decisions on claims for damages brought by aliens, see TORIELLO, cit. supra note 4, p. 198 ff. 27 Reproduced in RD1PP, 2000, p. 1093 ff. 28 On the issue of the "new" constitutional rights to be included among the inviolable rights recognised by Art. 2 of the Constitution, see MELICA, Lo straniero extracomunitario. Valori costituzionali e identita culturale, Torino, 1996, p. 129 ff.

29 The 1942 Civil Code replaced the 1865 Civil Code. Interestingly, in the 19'h century Code, an unconditional parity of treatment of aliens and citizens was recognised. In accordance with the principle of solidarity among peoples, aliens were allowed "to enjoy the civil rights granted to citizens" (Art. 3). It was only later, when the political climate shifted to a heated nationalism, and in parallel with the growing awareness that a perfect parity was not recognized by the legislation of other countries, that the phrase "under conditions of reciprocity" was introduced into the 1942 Civil Code. 30 Whenever a given treatment is subject to reciprocity and the latter is verified, the situation is equivalent to that arising from a bilateral agreement characterised by an ad nutum revocability clause, whereby each State is willing to protect his citizens abroad.

3� See, in general, TIBuRcio, The Human Rights ofAliens under International and Comparative Law, The Hague/Boston/London, 2001. 32 Italy signed the Protocol that very day. 33 The Protocol shall enter into force after the expiration of a period of three months after the date on which ten Member States of the Council of Europe will have deposited their instruments of ratification. At the moment of writing this article (January 2002), 26 States had signed the Protocol, but only one (Georgia) had ratified it. 34 See, in particular, Case 1-72, Frilli v. Belgium, Decision of 22 June 1972, ECR, 1972, p. 457 ff.; Case 186-87, Cowan v. Trésor public, Decision of 2 February 1989, ECR, 1989, p. 195 ff.; Case C-20/92, Hubbard v. Hamburger, Decision of 1 July 1993, ECR, 1993, p. 3790 ff. 35 MENGOZZI, cit. supra note 4, p. 498.

36 The author is grateful to the anonymous reviewer of this article for pointing out the special problem of reciprocity in international treaties. As yet, reciprocity in international conventions has not been extensively treated in the judgments of international courts. However, a specific discussion by the International Court of Justice of the clause provided by Art. VII, para. 1, of the 1948 Treaty of Friendship, Commerce and Navigation between Italy and the United States (c£ Elettronica Sicula SpA (ELSI) case, Judgment of 20 July 1989, ICJ Reports, 1989, p. 15) warrants a citation. Art. VII, para. 1, states: "The nationals, corporations and associations of either High Contracting Party shall be permitted to acquire, own and dispose of immovable property or interests therein within the territories of the other High Contracting Party upon the following terms: a) in the case of nationals, corporations and associations of the Italian Republic, the right to acquire, own and dispose of such property and interests shall be dependent upon the laws and regulations which are or may hereafter be in force within the State, territory or possession of the United States of America wherein such property or interests are situated; b) in the case of nationals, corporations and associations of the United States of America, the right to acquire, own and dispose of such property and interests shall be upon terms no less favorable than those which are or may hereafter be accorded by the State, territory or possession of the United States of America in which such national is domiciled, or under the laws of which such corporation or association is created or organized, to nationals, corporations and associations of the Italian Republic; provided that the Italian Republic shall not be obligated to accord to nationals, corporations and associations of the United States of America rights in this connection more extensive than those which arc or may hereafter be accorded within the territories of such Republic to nationals, corporations and associations of such Republic". Reciprocity is thus implied, though not mentioned as such in the text. Regardless of the abrogationist view expressed in this article on the reciprocity mechanism, the Treaty has a convoluted wording and would require a revision. The qualification under letter a) makes a vague reference to US law, failing to clarify the essential point whether the Italian citizen is granted an equal access to the rights of the domestic citizen with respect to transfers of immovable property. In contrast, the qualification under letter b) is worded so as to leave open the absurd possibility that a US citizen be granted in Italy a more favourable treatment than the domestic citizen. Indeed, the International Court of Justice criticized this clause. To apply the Treaty qualification under letter b), the Court couched its criticism in the following terms: "Qualification "(b)"... is a convoluted qualification because it lays down alternative standards, which standards are themselves then both qualified by the same proviso... The Chamber has thus to make the somewhat elaborate juridical calculus which this provision in the FCN Treaty appears to demand for its application..." (ibid., p. 80).

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