Opinion of the Advocate General — ECLI:EU:C:2020:3
Date: 2020-01-14
Language of the case: Italian
Subject matter: Transport;Area of freedom, security and justice;Judicial cooperation in civil matters;Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Anonymised version 
Translation C-641/18 — 1 
Case C-641/18 
Request for a preliminary ruling 
Date lodged: 
12 October 2018 
Referring court: 
Tribunale di Genova (District Court, Genoa, Italy) 
Date of the decision to refer: 
28 September 2018 
Applicants: 
LG and Others 
Defendants: 
Rina S.p.A. 
Ente Registro Italiano Navale 
  
RG No 9852/2013 
THE TRIBUNALE DI GENOVA (DISTRICT COURT, GENOA) 
[…] 
in the civil proceedings brought by 
LG and Others […], with an address for service in Genoa, […] 
Applicants 
v 
RINA S.p.A. and ENTE REGISTRO ITALIANO NAVALE, […] with an 
address for service in Genoa, […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28 SEPTEMBER 2018 — CASE C-641/18 
 
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Defendants 
[Or.2] 
******************* 
1. MAIN PROCEEDINGS 
1.1. Succinct presentation of the proceedings 
By means of the document instituting the proceedings […], the applicants — 
relatives of the victims and survivors of the sinking of the Al Salam Boccaccio ’98 
ferry in the Red Sea on 2 and 3 February 2006, in which more than 1 000 people 
lost their lives — filed a lawsuit against the defendants seeking a judgment on 
their collective and/or joint and several civil liability for all pecuniary and non-
pecuniary losses suffered as a result of the disaster in jure proprio or jure 
successionis and, as a result, the award of compensation in respect of those losses. 
The applicants submit that the defendants acted negligently when carrying out 
their classification and certification activities and when adopting decisions and 
guidelines, thereby rendering the vessel unstable and unsafe and causing it to sink. 
The defendants entered an appearance […], challenging the applicants’ claims on 
various grounds, including in particular — with regard to the present 
proceedings — the defendants’ immunity from Italian jurisdiction. Briefly, that 
plea is based on the fact that RINA S.p.A. and RINA ENTE were summonsed in 
relation to activities carried out as delegates of a foreign sovereign State, the 
Republic of Panama. Those activities were an expression of the sovereign 
prerogatives of that delegating foreign State, in whose name and in whose interest 
the defendants acted. 
On that issue — the only one relevant to the present request for a preliminary 
ruling — the applicants reply that, since both defendants are domiciled in Italy 
(and specifically in Genoa) and given the ‘civil’ nature of the dispute, the Italian 
courts and the Tribunale (District Court) seised have jurisdiction under 
Article 2(1) of Regulation (EC) No 44/2001 (Brussels I). In particular, according 
to the applicants: 
- under Article 1(1) of the Brussels I Regulation, that regulation does not 
apply where the dispute concerns ‘revenue, customs or administrative 
matters’; 
[Or.3] 
- nevertheless, in those limited cases — and as regards administrative matters 
in particular —, the plea of jurisdictional immunity entered by the two 
RINA defendants is invalid, since the concept of acts jure imperii must be 
confined to acts carried out by States and public authorities in the political 
RINA 
 
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exercise of State sovereignty, whereas planning, classification and 
certification activities governed by non-discretionary technical rules which 
are unrelated to the political choices and prerogatives of a sovereign State do 
not fall within its scope; 
- this also applies, with regard to EU legislation, in the light of Article 47 of 
the Charter of Fundamental Rights of the European Union, Article 6(1) of 
the European Convention on Human Rights and recital 16 of Directive 
2009/15/EC of the European Parliament and of the Council of 23 April 2009 
‘on common rules and standards for ship inspection and survey 
organisations and for the relevant activities of maritime administrations 
(recast)’. 
1.2. Succinct presentation of the facts 
[…] [Or.4] […] [Procedural matters of internal relevance only] 
2. NATIONAL LAW 
2.1. Provisions of national law relied on 
First paragraph of Article 10 of the Italian Constitution 
International law and legal status of foreigners 
‘The Italian legal system conforms to the generally recognised rules of 
international law.’ 
First paragraph of Article 24 of the Italian Constitution 
Protection of subjective rights and legitimate interests 
‘All persons are entitled to take judicial action to protect their individual rights 
and legitimate interests.’ 
2.2. Relevant national case-law 
Corte Costituzionale (Constitutional Court, Italy), judgment No 238 of 
22 October 2014 (Maxim) 
‘According to the Constitution, it must be established whether the international 
rule on the immunity of States, as interpreted in international law, may be 
enshrined in Italian law, in so far as it is not contrary to fundamental principles 
and inviolable rights; indeed, in the latter case this would disable the automatic 
adaptation mechanism laid down in the first paragraph of Article 10 of the 
Constitution, with the inevitable consequence that the international rule, in so far 
as it conflicts with those principles and rights, cannot be enshrined in law and 
REQUEST FOR A PRELIMINARY RULING OF 28 SEPTEMBER 2018 — CASE C-641/18 
 
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thus cannot apply. The fundamental principles of constitutional law include the 
right to bring proceedings before and be defended in a court of law (the right to a 
court) recognised by Article 24 [Or.5] of the Constitution, primarily to protect the 
fundamental rights of the individual. Article 24 of the Constitution is closely 
linked to Article 2 thereof, which, of all the fundamental constitutional principles, 
is the substantive provision that safeguards the inviolability of the fundamental 
rights of the individual, including […] dignity. Article 24 also safeguards human 
dignity, protecting the right of the individual to go to court in order to enforce his 
inviolable rights. In relations with foreign States, the fundamental right to judicial 
protection may be limited, provided that there is a public interest recognisable as 
potentially overriding the principle enshrined in Article 24 of the Constitution. 
However, the customary international rule on the immunity from jurisdiction of 
foreign States, in so far as it excludes the jurisdiction of the courts in cases of 
compensation for damage suffered by the victims of crimes against humanity and 
serious violations of fundamental human rights, requires the right to judicial 
protection of those victims’ rights to be entirely sacrificed, in the absence of an 
identifiable overriding public interest. The immunity of a foreign State from the 
jurisdiction of the Italian courts recognised under Articles 2 and 24 of the 
Constitution, while making primarily logical rather than legal sense, justifying the 
sacrifice of the principle of judicial protection of inviolable rights, must be 
related — in substance and not only in form — to the sovereign function of the 
foreign State concerned and the traditional exercise of its governmental power. 
Crimes against humanity, such as deportation, forced labour and massacres, 
cannot justify entirely sacrificing the protection of the inviolable rights of the 
victims of those crimes. In an institutional context where human rights are 
paramount, emphasised by constitutional law being open to external sources, the 
fact that a review by the courts is precluded for the protection of the fundamental 
rights of the victims of the crimes in question renders the sacrifice of two supreme 
principles enshrined in the Constitution completely disproportionate to the aim of 
preserving State sovereignty, when that sovereignty is expressed through actions 
that are clearly criminal and unrelated to the legitimate exercise of governmental 
power. 
Moreover, the right to a court enshrined in the Constitution requires effective 
protection of the rights of individuals: the very absence of the possibility of 
effective protection of fundamental rights before a court reveals the conflict 
between the international rule, as defined by the International Court of Justice, 
and Articles 2 and 24 of the Constitution. That conflict renders inoperative [Or.6] 
the reference in the first paragraph of Article 10 of the Constitution with respect 
only to the extension of the immunity of States from the civil jurisdiction of other 
States to actions for damages caused by acts deemed jure imperii in violation of 
international law and the fundamental rights of the individual. Therefore, in so far 
as it conflicts with these fundamental principles, that international rule is not 
enshrined in Italian law and has no effect.’ 
Corte di Cassazione (Court of Cassation, Italy) in Joint Session, judgment 
No 15812 of 29 July 2016 (Maxim) 
RINA 
 
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‘The immunity from civil jurisdiction of foreign States for acts jure imperii 
constitutes a prerogative (and not a right) recognised by customary international 
rules whose operativeness is precluded in Italian law, following judgment 
No 238/2014 of the Constitutional Court, for delicta imperii — that is, for those 
crimes committed in violation of international jus cogens rules, since they are 
contrary to universal values that transcend the interests of individual States.’ 
Corte d’Appello di Genova (Court of Appeal, Genoa), judgment No 534 of 
26 April 2017 […] 
‘… the appellants cited recital 16 of Directive 2009/15/EC, which states: “When a 
recognised organisation, its inspectors, or its technical staff issue the relevant 
certificates on behalf of the administration, Member States should consider 
enabling them, as regards these delegated activities, to be subject to 
proportionate legal safeguards and judicial protection, including the exercise of 
appropriate rights of defence, apart from immunity, which is a prerogative that 
can only be invoked by Member States as an inseparable right of sovereignty and 
therefore that cannot be delegated.” 
Quite rightly, the lower court noted that recitals are not a preceptive part of 
directives, but merely make a recommendation to the Member States. In the 
present case, Italy did not follow those recommendations when transposing the 
Directive into national law by means of Legislative Decree No 104/2011, deciding 
not to waive immunity, at least not for recognised organisations. 
…  
[Or.7] 
Rather, it is the amount of effort and the lengthy elaboration process described by 
the appellants, who have produced the different versions of what has ultimately 
become recital 16, that persuade us that the benefit exists in favour of recognised 
organisations. If not, there would be no justification for the wish for it to be 
excluded at EU level, which is essential, moreover, to the Union’s very 
objectives.’ 
3. EUROPEAN UNION LAW 
Regulation (EC) No 44/2001 
Article 1(1) 
‘This Regulation shall apply in civil and commercial matters whatever the nature 
of the court or tribunal. It shall not extend, in particular, to revenue, customs or 
administrative matters.’ 
Article 2(1) 
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‘Subject to this Regulation, persons domiciled in a Member State shall, whatever 
their nationality, be sued in the courts of that Member State.’ 
Charter of Fundamental Rights of the European Union 
Article 47 
Right to an effective remedy and to a fair trial 
‘Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article. Everyone is entitled to a fair and public 
hearing within a reasonable time by an independent and impartial tribunal 
previously established by law. Everyone shall have the possibility of being 
advised, defended and represented. Legal aid shall be made available to those 
who lack sufficient resources in so far as such aid is necessary to ensure effective 
access to justice.’ 
European Convention on Human Rights 
[Or.8] 
Article 6(1) 
Right to a fair trial 
‘In the determination of his civil rights and obligations or of any criminal charge 
against him, everyone is entitled to a fair and public hearing within a reasonable 
time by an independent and impartial tribunal established by law. Judgment shall 
be pronounced publicly but the press and public may be excluded from all or part 
of the trial in the interests of morals, public order or national security in a 
democratic society, where the interests of juveniles or the protection of the private 
life of the parties so require, or to the extent strictly necessary in the opinion of 
the court in special circumstances where publicity would prejudice the interests of 
justice.’ 
Directive 2009/15/EC 
Recital 16 
‘When a recognised organisation, its inspectors, or its technical staff issue the 
relevant certificates on behalf of the administration, Member States should 
consider enabling them, as regards these delegated activities, to be subject to 
proportionate legal safeguards and judicial protection, including the exercise of 
appropriate rights of defence, apart from immunity, which is a prerogative that 
can only be invoked by Member States as an inseparable right of sovereignty and 
therefore that cannot be delegated.’ 
RINA 
 
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Directive 2014/111/EU (subsequent both to the events of the case and the date 
on which the proceedings were brought) 
Recital 17 
‘First, paragraph 16.1 of part 2 of the III Code provides for a minimum list of 
resources and processes which flag States have to establish, including the 
provision of administrative instructions pertaining inter alia to ship class 
certificates required by the flag State to demonstrate compliance with structural, 
mechanical, electrical, and/or other requirements of an international convention 
[Or.9] to which the flag State is a party or compliance with a requirement of the 
flag State’s national regulation. As detailed in recital (21) below however, Union 
law draws a distinction between statutory certificates and class certificates. The 
latter are documents of a private nature and are neither acts of a flag State nor 
issued on any flag State’s behalf. This provision of the III Code in fact refers to 
SOLAS Chapter II-1, Part A-1, Regulation 3-1, which provides that ships shall be 
designed, constructed and maintained in compliance with the structural, 
mechanical and electrical requirements of a classification society which is 
recognized by the Administration in accordance with the provisions of regulation 
XI-1/1.1. The SOLAS convention clearly identifies the ship or its legal 
representation vis-à-vis the flag State as the object of this requirement. 
Furthermore, when acting in its capacity as class society, a recognised 
organisation issues ship class certificates in accordance with its own rules, 
procedures, conditions and private contractual arrangements, to which the flag 
State is not a party. Therefore, this provision of the III Code contradicts the 
delineation of class and statutory activities as set out in the existing EU 
legislation.’ 
4. SUCCINCT PRESENTATION OF THE GROUNDS FOR THE 
REFERENCE FOR A PRELIMINARY RULING 
The question that has given rise to the present reference for a preliminary ruling 
pertains to the jurisdiction of the Italian courts in the present case, given that the 
defendants are established in Italy, but acted as the delegates of a non-EU foreign 
State (Panama) and therefore — as argued by the defendants — in jure imperii. 
It is therefore a case of establishing whether Articles 1(1) and 2(1) of Regulation 
(EC) No 44/2001 should be interpreted in such a way that the activities in 
question, carried out by the defendants on behalf of a non-EU State, may be 
regarded as ‘administrative matters’. This would determine whether or not the 
State in whose territory the defendants are domiciled (Italy) has jurisdiction. 
The uncertainty of the referring court as to the correct interpretation of those 
provisions stems from the fact that: 
[Or.10] 
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- on the one hand, the case-law cited above — and that of the International 
Court of Justice by means of its judgment of 3 February 2012 in the Ferrini 
case — seems to exclude jurisdiction; 
- on the other hand, the principles enshrined in the sources cited by the 
applicants would seem to give precedence to the right to judicial protection 
in the State in which the proceedings are brought; 
- the Court of Justice of the European Union does not appear to have set any 
precedent in the matter. 
5. ESSENTIAL ARGUMENTS OF THE PARTIES TO THE MAIN 
PROCEEDINGS 
The parties’ positions on the subject of the present reference for a preliminary 
ruling have already been substantially and succinctly set out above. 
6. POINT OF VIEW OF THE REFERRING COURT 
The Tribunale di Genova (District Court, Genoa), in the person of this judge, has 
already ruled on a similar question raised in another case very similar to the 
present one, by means of judgment No 2097 of 8 March to 1 June 2012. That 
judgment, at least in part, upheld the plea of immunity from the jurisdiction of the 
Italian courts entered by the defendant. 
Specifically, pages 31 et seq. of that judgment read as follows: 
‘5. Recital 16 of Directive 2009/15/EC 
The applicant refers to French doctrine which, in criticising the ruling of the 
[Cour d’appel de Paris (Court of Appeal, Paris)] regarding its reasoning on 
“jurisdictional immunity” (“Le raisonnement paraît fragile”), also found that 
reasoning to be contrary to recital 16 of Directive 2009/15/EC of the European 
Parliament and of the Council of 23 April 2009 “on common rules and standards 
for ship inspection and survey organisations and for the relevant activities of 
maritime administrations (recast)”. 
[Or.11] 
[…] [reproduction of recital 16, cited above] 
However, as RINA effectively replies on this point, the Italian State did not 
translate the recommendations of recital 16 into a provision of Italian law. 
Legislative Decree No 104/2011, which transposes the Directive and lays down 
the rules governing the relationship between the State and recognised 
organisations, is silent on the subject. Furthermore, a recital is not part of the 
regulatory content of a directive. Recital 16 of the Directive in question cannot 
RINA 
 
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therefore be considered a suitable basis for derogating from the application of the 
principle of immunity applicable by reference to Article 10 of the Constitution. 
In addition, RINA acted in this case as the delegate of a non-EU State, in 
accordance with the SOLAS convention. 
Lastly, the existence of recital 16 seems rather to show that EU law also 
intrinsically recognises the principle of international law on State immunity. At 
the same time, it is irrelevant whether, de jure condendo, this will be waived for 
recognised organisations, which act on the authority of the States themselves. 
Therefore — apart from the decisive fact that the “recitals” have not been 
inserted in the Italian law that transposed the Directive — the argument can also 
be interpreted in the sense that, although it is to be hoped that the current trend 
will be corrected, recognised organisations are currently still granted immunity.’ 
The reasoning set out in that judgment appears to be confirmed in the light of the 
abovementioned judgment No 238 of the Constitutional Court of 22 October 2014 
and judgment No 15812 of the Court of Cassation in Joint Session of 29 July 
2016. Indeed, they appear to limit the inoperativeness of the principle of 
‘restricted immunity’: 
- to acts of a foreign State consisting of war crimes and crimes against 
humanity which violate inviolable human rights, and 
[Or.12] 
- to those cases in which the application of the principle of restricted 
immunity would preclude — unlike in the present case (where Panama 
undoubtedly has jurisdiction) — the possibility of bringing an action before 
any judicial authority (as is also apparent from the abovementioned 
judgment of the International Court of Justice of 3 February 2012, 
paragraph 104). 
7. REFERRAL OF THE QUESTION TO THE COURT OF JUSTICE 
FOR A PRELIMINARY RULING 
On those grounds, the Tribunale di Genova (District Court, Genoa), having regard 
to Article 267 TFEU, refers the following question to the Court of Justice of the 
European Union for a preliminary ruling: 
Should Articles 1(1) and 2(1) of Regulation (EC) No 44/2001 of 
22 December 2000 be interpreted — particularly in the light of 
Article 47 of the Charter of Fundamental Rights of the European 
Union, Article 6(1) of the European Convention on Human Rights and 
recital 16 of Directive 2009/15/EC — as preventing a court of a Member 
State from waiving its jurisdiction by granting jurisdictional immunity 
to private entities and legal persons carrying out classification and/or 
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certification activities, established in that Member State, in respect of 
the performance of those classification and/or certification activities on 
behalf of a non-EU State, in a dispute concerning compensation for 
death and personal injury caused by the sinking of a passenger ferry 
and liability for negligent conduct? 
Genoa, 28 September 2018 
[…]