In a recently reported judgment, the Italian Supreme Court refused to grant sovereign immunity to a French public body, but otherwise confirmed its case law on the issue, which is in line with generally accepted international practice. The Court also offered an interpretation of the Recast Brussels I Regulation.
In 2015, a French public entity based in Rome, the Académie de France à Rome, entered into a tenancy and catering contract with an Italian company. The contract included a forum selection clause designating French courts.
Following a disagreement between the parties, the company brought the dispute before Italian courts, claiming that the forum selection clause was invalid under articles 25 paragraph 4, and 24 paragraph 1 of EU Regulation No. 1215/2012 (also known as the Recast Brussels I Regulation). The company argued that Italian courts have exclusive jurisdiction over tenancies of immovable properties located in Italy.
The Académie de France à Rome replied that Italian courts lacked jurisdiction based on: (i) sovereign immunity; (ii) the fact that the Académie occupies an estate it considers to be part of the French public domain; and (iii) the forum selection clause in the tenancy agreement.
In judgment No. 3052718 of 17 April 2018, the Italian Supreme Court found that:
- Italian courts do not have jurisdiction over foreign states or other subjects of international law, including cultural institutions, but only as to their sovereign or public acts. This was not the case here, as the Académie de France had entered into a private, commercial contract not involving public powers.
- The alleged location of the restaurant on French ‘public domain’ (albeit on Italian territory) did not change the contract’s legal nature. As a result, the Court left the issue untouched and did not delve into the likely intricacies of the claim. The Académie de France à Rome was created in 1666 and its current premises were acquired through a treaty between France and the Kingdom of Etruria in 1803.
- The provisions of the EU Regulation relied on by the company were inapplicable, as the contract’s main purpose was not for tenancy but for catering services. Consequently, the Court found the forum selection clause valid and dismissed the case.
In relation to sovereign immunity, this case is in line with the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (which has now been ratified by 22 states out of 30 required for its entry into force). The Italian court applied the traditional distinction between acta jure imperii and acta jure gestionis, that is also found in numerous other jurisdictions.
See for instance the judgments of 20 June 2003 (No. 00-45629 00-45630) by the French Supreme Court, Permanent mission of India to the United Nations e.a. v. City of New-York of 14 June 2007 (No. 551 U.S. 193) by the United States Supreme Court; and the United States’ Foreign Sovereign Immunities Act of 1976 and the United Kingdom’s State Immunity Act 1978.
If you wish to receive further clarifications, please do not hesitate to contact Emmanuel Kaspereit and Caterina Giudiceandrea.