Individual Rights in Private and Public Law: Italian Perspective

This chapter aims to analyze how the Italian dichotomy between subjective rights and “legitimate interests” still survives in light of the European Union legal system, which is characterized by a jurisdictional trend toward ensuring full and effective protection in all legal situations originating from its rules. The effective protection of individual rights in the EU legal system is the main goal of that system, and this protection derives from the possibility of asserting them in actions before national courts. In the legal systems of the Member States, the judiciary must ensure the supremacy of EU law and, at the same time, its effectiveness. The Italian legal system is characterized by a dichotomy between subjective rights and “legitimate interests” (so-called interessi legittimi) because the Italian administrative jurisdiction is historically grounded on the position of the claimer called “legitimate interests,” not on the subjective rights of the person involved in the litigation. Anyway, the national label of legal situations as involving interests or subjective rights in the internal legal order is irrelevant to the EU legal system. For this reason, the latter does not recognize a distinction between rights and interests, because the EU legal order tends to ensure full and effective protection in all [its] legal situations. This analysis seems to be endorsed by the reconstruction of the European Court of Human Rights in the Mennitto v Italy case, 5 October 2000 no. 33804/96.