The Jurisdiction on the Social Rights: A Conflict Between the Courts and Public Power in the Italian Legal System

Abstract

The Chapter aims to understand how the Italian Ordinary Courts—due to the control of supranational Courts—have the jurisdiction over private law realized by public power, specifically in the field of social rights. The protection of such rights via private law (and also jurisdiction) is not excluded just because they are provided for by the public authority, acting either in the form of public or private law (financial aid by administrative order, or in forms of contracts). The reference will be the ECtHR judgment on the Mennitto vs. Italy (2000). According to ECtHR, social services fit perfectly into the arena of “private law human rights”, which is over administrative control in the Italian legal system. The control by the ordinary Courts realizes that going over any possible limitation of the social rights through discretionary activities puts the public power “private law human rights” up to the possibility of judicial review by the Strasbourg Courts on administration activities as to whether or not they are acting in the form of public or private law.