CrisiImpresa

Summary: 1. Introduction: Direct and Indirect COVID-19 Response Measures. -  2. Art. 3 para. 6-bis D.-L. 6/2020: Excuse for Nonperformance. - 3. Art. 88-bis D.-L. 18/2020: Travel, Accommodation and Package Travel Contracts. - 4. Art. 78 para. 2-bis D.-L. 18/2020: “Coronavirus-Free” Certificates. - 5. Summary.

1. In the course of my speech[2] I will provide an overview of the COVID-19 Response Measures adopted by the Italian legislator which might qualify as overriding mandatory provisions within the meaning of Art. 9 para. 1 Rome I Regulation (hereafter, “Art. 9 Rome I”).[3] Preliminarily, I suggest distinguishing between two categories of COVID-19 response measures: Direct and Indirect Response Measures. In my understanding, Direct Response Measures are public law measures directly aimed at tackling the COVID-19 pandemic, namely at strengthening the national health system or, more generally, at safeguarding public health. A notable example of Direct Response Measures is, of course, that of containment measures. On the other hand, Indirect Response Measures are here understood as measures aimed at mitigating the socio-economic effects of the COVID-19 pandemic and of the related containment measures. Examples of Italian Indirect Response Measures are: the extraordinary recruitment of social workers;[4] redundancy benefits;[5] and various forms of State grants.[6] Among theIndirect Response Measures are also measures that impinge on relations between private parties (“Indirect Response-Private Law Measures”, as I will refer to).

Considering their public law nature and objective of safeguarding public health, Direct Response Measures may generally be qualified as Art. 9 Rome I-overriding mandatory provisions. Apart from containment measures,[7] other examples of Direct Response Measures adopted by the Italian legislator are export restrictions of so-called personal protective equipment[8] and legally-imposed maximum prices of face masks.[9] On the other hand, I argue that not all Indirect Response-Private Law Measures may be qualified as Art. 9 Rome I-overriding mandatory provisions.

2. Among the Italian Indirect Response-Private Law Measures is Art. 3 para. 6-bis D.-L. 6/2020.[10] Art. 3 para. 6-bis D.-L. 6/2020 introduces a special ground of excuse for nonperformance of obligations due to the respect of Italian containment measure. An Italian scholar, Frigessi di Rattalma, states that there is no doubt that Art. 3 para. 6-bis D.-L. 6/2020 qualifies as an Art. 9 Rome I-overriding mandatory provision.[11] In effect, similar measures have been qualified as Art. 9 Rome I-overriding mandatory provisions also in other EU Member States.

In France, a measure roughly comparable to Art. 3 para. 6-bis D.-L. 6/2020 is that found in Art. 4 Ordonnance No. 306-2020, as modified by Art. 4 Ordonnance No. 427-2020.[12] The French Ministry of Justice Explanatory Report to Ordonnance No. 427-2020 suggests that Art. 4 Ordonnance No. 306-2020 qualifies as an Art. 9 Rome I-overriding mandatory provision in the light of the objective pursued by the same Art. 4 Ordonnance No. 306-2020: that of mitigating the negative economic effects of containment measures and thus, ultimately, that of safeguarding the (national) economic order.[13] However, the French President of the Republic Explanatory Report to Ordonnance No. 306-2020 clearly states that parties can derogate from Art. 4 Ordonnance No. 427-2020, which raises doubts as to the possibility of qualifying the same Art. as an Art. 9 Rome I-overriding mandatory provision.[14]

A similar measure has been adopted also in Germany, in Art. 240 EGBGB.[15]Lorenz and Prütting hold that Art. 240 EGBGB might be qualified as an Art. 9 Rome I-overriding mandatory provision.[16] On the contrary, Maultzsch holds that, even though Art. 240 EGBGB pursues a public interest, the Art. is primarily “structured” in order to balance private interests and thus should not be qualified as an Art. 9 Rome I-overriding mandatory provision.[17]

Drawing back to Art. 3 para. 6-bis D.-L. 6/2020, unlike the Italian scholar I earlier named, I have many doubts as to the overriding mandatory nature of that para. within the meaning of Art. 9 Rome I. In the first place, express reference in Art. 3 para. 6-bis D.-L. 6/2020 to Arts. 1218 and 1223 Italian Civil Code might suggest that the same para. is intended to apply only if Italian law applies to assess the debtor’s liability. Secondly – unlike other two Indirect Response-Private Law Measures adopted by the Italian legislator, which I will mention – Art. 3 para. 6-bis D.-L. 6/2020 was not expressly qualified by the same legislator as an overriding mandatory provision. Thirdly, it appears that many States have adopted measures aimed at protecting debtors amid the COVID-19 pandemic.[18] Following what is referred to as the “proportionality test”, where the law applicable is a foreign law establishing a comparable (or even higher) level of protection of the debtor, Art. 3 para. 6-bis D.-L. 6/2020 should not be regarded as being “crucial” within the meaning of Art. 9 Rome I.[19]

3. Art. 88-bis D.-L. 18/2020is the first provision contained in the Indirect Response Measures which the Italian legislator expressly qualified as overriding mandatory.[20] Art. 88-bis D.-L. 18/2020 concerns travel, accommodation and package travel contracts terminated due to the COVID-19 pandemic, or due to national and foreign containment measures. Art. 88-bis D.-L. 18/2020 allows carriers, hoteliers and organizers to issue vouchers in place of price reimbursements.

Incidentally, other EU Member States have “copied” Art. 88-bis D.-L. 18/2020.[21] The Greek legislator has even copied the legislative qualification. [22]

Art. 88-bis D.-L. 18/2020 appears to infringe EU law (namely, the Passenger Rights Regulations[23], the Package Travel Directive[24] and the Voucher Recommendation[25]). In fact, under Art. 88-bis para. 12 D.-L. 18/2020 in case of contracts terminated within the 31st of July 2020, the carrier and organiser can issue a voucher, regardless of whether the latter is accepted by the consumer.

Notwithstanding the legislative qualification, I still doubt as to correctness of qualifying Art. 88-bis D.-L. 18/2020 as an Art. 9 Rome I-overriding mandatory provision.[26] Among the reason to doubt, national legislators of the EU Member States cannot unilaterally determine which interests – including public interests – should be pursued in areas governed by Regulations (such as the Passenger Rights Regulations) or maximum harmonization Directives (such as the Package Travel Directive): Simply put, only the Union can determine whether the carrier / organizer or the passenger / traveller should be protected and how. Therefore, in areas governed by the Passenger Rights Regulations and the Package Travel Directive, Art. 88-bis D.-L. 18/2020 should not be qualified as an Art. 9 Rome I-overriding mandatory provisions.

4. There are other Indirect Response-Private Law Measures which might qualify as Art. 9 Rome I-overriding mandatory provisions. Just to make one final example, in Art. 78 para. 2-bis D.-L. 18/2020,the Italian legislator has determined as unfair the practice of making the purchase of food products conditional upon the issuing of so-called “Coronavirus-free” certificates.[27]

This provision was adopted following an article published on the 28th of February 2020 in “Il Sole 24 Ore”.[28] According to that article, Greek authorities had imposed the issuing of “Coronavirus-free” certificates for the import clearance of Italian Grana Padano cheese. The Greek Embassy in Rome immediately issued a note where the Grana Padano blockade was rejected as fake news.[29] The same Managing Director of the Grana Padano Consortium, Mr Berni, impliedly admitted that the news was fake.[30] Mislead by the fake news, early in March, Italian EU MPs brought two questions for written answer by the Commission complaining about the Coronavirus-free certificates.[31] Unsurprisingly the Commission replied: “What are you all talking about?”;[32] yet, of course, stigmatising the possible request of Coronavirus-free certificates.

This notwithstanding, on the 17th of March 2020, the Italian legislator adopted Art. 78 para. 2-bis D.-L. 18/2020. A month later, when converting the D.-L. into L. 27/2020, the legislator even felt the compelling need to expressly qualify that Art. 78 para. 2-bis of the D.-L. as an overriding mandatory provision.[33]

5. In summary, Direct Response Measures may generally be qualified as Art. 9 Rome I-overriding mandatory provisions. On the other hand, the simple fact that Indirect Response-Private Law Measures are connected to Direct Response Measures does not entail that also the former may generally be qualified as Art. 9 Rome I-overriding mandatory provisions.

In times of what could be referred to as “pandemic legeforismo” there is a need to contain the exceptions to the normal play of private international law.[34] Accordingly, rather than qualifying whichever provision passed by the pandemic legislator as an overriding mandatory provision, scholars, courts and the same legislator should – more than ever – identify methods in order to contain that exception.