Fascicolo I/2025
The first issue of Diritto e Politica dei Trasporti for 2025 brings together contributions on topical issues of unquestionable relevance for both scholars and practitioners in the field. The issue opens with three articles focusing on Spain (the first) and Latin America (the other two). In the opening essay, entitled “La Negociación Colectiva Informal de Empresa como Espacio de Libertad: Reflexiones en torno al caso RYANAIR (España)”, Fernando Elorza Guerrero addresses the topic of informal or extra-legal collective bargaining in the Spanish legal system, where this form of bargaining has often been regarded as an accidental phenomenon, resulting from the inability to reach agreement on a legally binding collective agreement of a normative nature and with general personal effectiveness. The Ryanair case provides the occasion for reflection on this important issue, specifically with regard to the informal or extra-legal collective agreement for cabin crew concluded with the Spanish trade union CC.OO. The following two essays—by Manuel Guillermo Sarmiento García and Emilio Romualdi—are entitled, respectively, “Los Derechos Aerocomerciales frente a los servicios de carga aérea en América Latina” and “Transporte aéreo y derecho de los usuarios o consumidores. El Decreto 809/24 del PEN”. The former addresses an issue that has long been at the centre of scientific and political-institutional debate, examining its evolution and the specific features of air cargo transport, with particular reference to Latin America. The latter focuses on the relationship between air transport services and consumer protection legislation in Argentina, especially in light of Decree No. 809/24. Christina Zournatzi’s contribution deals with digitalisation in the transport sector and in port logistics. In particular, the Author analyses recent European legislation on the digitalisation and upgrading of ports and ships, which establishes uniform rules on the obligation to provide on-shore power supply (OPS) or zero-emission technologies in the ports of Member States. In the second part of the article, the Author focuses on the use of blockchain technology in port logistics and its potential as a tool to replace the traditional paper bill of lading. Of notable interest and topical relevance is the essay by Lucrezia Magli, which examines the powers of the Transport Regulation Authority with regard to motorway tolls. The article critically retraces the regulatory framework governing tariff regulation, analyses several recent decisions of the Council of State, and then turns to the innovations introduced by Law No. 193 of 16 December 2024, as well as to the procedure for updating the toll tariff system applicable to motorway concessions. Nicola Pierpaolo Barbuzzi and Gino Fontana address the issue of cybersecurity (and privacy) in smart mobility. The Authors examine the digitalisation of the automotive industry, focusing in particular on the nature of data and its intrinsic value. From this perspective, they argue that blockchain technology can serve as an “epistemic tool”, capable of “infusing transparency, immutability and trust into digital systems, acting as a bridge between technological evolution and the preservation of individual autonomy, which is the foundation of all rights”. This is therefore a contribution of clear interest and topical relevance. The theme of mobility is also addressed in the contribution by Martina Baltuzzi, who analyses the ethical and legal challenges posed by autonomous vehicles in Europe, with particular attention to initiatives undertaken by the German legislature. Vincenzo Palo’s article, by contrast, focuses on the new Article 187 of the Highway Code, as rewritten by Law No. 177/2024, which removed any reference to the “state of psycho-physical impairment”. The provision is examined in light of constitutional and Supreme Court case law, with the aim of identifying and describing plausible interpretative approaches following the legislative amendment. The section devoted to case notes also includes contributions offering focused reflections and insightful commentary on recent judicial decisions, including rulings by non-Italian courts. This is the case with the note by Paolo Felix Iurich and Marco Di Giugno, which examines the decision of 5 March 2024 by the United States Court of Appeals for the First Circuit, confirming the first-instance judgment that characterised the Northeast Alliance (NEA)—a close cooperation agreement between American Airlines and JetBlue—as anti-competitive. Marco Di Giugno is also the author of a case note on the judgment of the Regional Administrative Court of Palermo No. 2272 of 19 March 2024, concerning a co-marketing agreement promoted by several public bodies (including the Municipality of Pantelleria). Paolo Sabra Piazza’s contribution, entitled “ZTL onnivora e Smart City”, analyses the judgment of the Council of State, Fifth Section, No. 282 of 9 January 2024 concerning so-called Limited Traffic Zones (ZTLs), particularly in relation to the principles of reasonableness and proportionality. Francesca Di Monaco’s contribution likewise addresses an issue of considerable importance, including from a jurisdictional standpoint. Her article analyses a recent decision of the Joint Sections of the Court of Cassation (Judgment No. 23377 of 30 August 2024) concerning airport services, reaffirming the contractual nature of so-called non-aviation activities and the jurisdiction of the ordinary courts over disputes relating to sub-concession agreements for spaces located within airport public property used for such commercial activities. The “Cases and Issues” section hosts the contribution by Emma Maresca, who reviews the legislation governing the training of railway drivers and the related compensation schemes (Legislative Decree No. 247 of 30 December 2010 and the Ministry of Infrastructure and Transport Decree of 30 November 2012). All the contributions included in Issue 1/2025 offer insights of significant interest and topical relevance for the Journal’s readers.
Fascicolo I/2024
The first issue of Diritto e Politica dei Trasporti for 2024 introduces an important innovation: it is the first issue to be published by the new publisher, Luiss University Press. With the launch of the “Antonio Catricalà” Air Transport Observatory of Luiss G. Carli, promoted by the Italian Civil Aviation Authority (ENAC) and the Luiss School of Law, the Journal has thus acquired a new editorial framework, renewing the challenge it has pursued since its first issue in 2018. In particular, the aim is to “represent a new public arena in which scientific, political-institutional and industry debate can mutually nourish one another in a constant dialogue inspired by pluralism and by the comparison of different opinions and methodological, cultural and political approaches, in the belief that such free and broad debate can lead to better decisions in the public interest” (Editorial No. 1/2018). The intention is therefore to continue along the same path within the newly established Air Transport Observatory of the Luiss School of Law, which is intended to become a national (and international) point of reference in the field of air transport. The Journal will accordingly continue to address not only an academic readership, but also transport industry operators and public decision-makers. The first issue of 2024 brings together contributions of great topical relevance and unquestionable scholarly interest. The issue opens with an essay by Alessandro Giorgetta on the European Union Emissions Trading System (EU ETS). The contribution focuses specifically on the potential implications of EU ETS regulation in the context of Italian climate litigation against companies. Of particular interest is the essay by Vincenzo Palo on the use of algorithms in setting passenger air transport fares and their impact on market dynamics. In particular, the article examines—also from a critical perspective—the new investigative and decision-making powers of the Italian Competition Authority in response to algorithm-driven collusive phenomena. The analysis covers Article 1, paragraphs 5 and 6, of Decree-Law No. 104/2023 and Opinion No. 61/2024 of the Council of State, without overlooking the relevant constitutional case law. Marzia Rossi’s contribution addresses the topic of the sharing economy from a private law perspective. In particular, part of the article is devoted to the study of the categories of shared mobility services currently in use within the Italian socio-economic landscape, while another part focuses on the legal transactions governing shared mobility relationships. The case notes are also of considerable interest and all address issues of unquestionable relevance for scholars in the field. The note by Valentina Siciliano and Marco Di Giugno concerns the enforcement of Road Traffic Code violations within airport areas. After reconstructing the legal framework governing road traffic within airports and the relationship between the general provisions of the Road Traffic Code and those specifically applicable to airports (both within the Code itself and under Law No. 33 of 22 March 2012, which assigns powers and competences to ENAC), the Authors focus on a recent case concerning Milan Linate Airport reviewed by the Supreme Court of Cassation. Francesca Di Monaco, by contrast, comments on a decision of the Council of State concerning the use of remedial measures (soccorso istruttorio) under the new Public Contracts Code. Vincenzo Palo’s note addresses the liability of the public administration in relation to a concession award procedure pursuant to Article 704 of the Navigation Code, in a case concerning Lampedusa Airport. The first issue of 2024 addresses topics of unquestionable interest and relevance from both a scholarly and an operational perspective.
Fascicolo II/2024
Like the first, the second issue of Diritto e Politica dei Trasporti for 2024 features contributions of significance not only from a theoretical perspective, but also from an applied one. In the opening essay, Andrea De Lia addresses the topic of road traffic liability from a comparative Italy–United States perspective. The Author reviews a wide range of issues, with extensive references to the case law developed in both countries. Particular attention is devoted to negligent and intentional liability, with a specific focus on the distinction between dolo eventuale and conscious negligence (or negligence with foresight). In this context, the analysis of the concept of recklessness, understood as a form of negligence with foresight, is especially interesting, also in light of its implications in terms of sanctions. In the second part of the essay, the Author examines certain issues relating to the circulation of assisted-driving and autonomous vehicles, as well as the broader problem of road traffic safety. Francesco Tomasicchio’s contribution—on the use of in-house providing in local public transport—is particularly important, also because of its practical implications. The Author focuses on the issue of different management models, highlighting how the local public transport sector has traditionally represented an exception, under European legislation, to the obligation to outsource services. In the Author’s view, this exception has been narrowed following the adoption of Legislative Decree No. 201/2022, even though both the legislature and the case law appear to have equated in-house award models with those involving recourse to the market. Gabriele Pisanti’s article addresses the protection of air passengers, which under the Italian legal system falls within the competence of both ENAC and the Transport Regulation Authority (ART). The Author focuses in particular on the content of ART Resolution No. 92/2024, highlighting certain potential critical issues, especially the possible conflict of competences between ART and ENAC. The specific focus is on the provision for automatic compensation for air passengers in the event of a failure to respond, or a late response, to their complaint via the Conciliaweb platform by air carriers or airport operators. The Author questions whether such a measure may amount to a substantive (or potential) ne bis in idem, or whether it should in any case be regarded as unlawful in light of the principles of EU and national law. Maria Pia D’Antuono’s article deals with a highly topical and important issue, namely data protection. The Author focuses specifically on security in the use of Passenger Name Record (PNR) data, starting from the relevant regulatory framework: Regulation (EU) 2016/679 and Directives (EU) 2016/680, on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties, and 2016/681, on the use of PNR data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. In the second part of the article, the Author examines a particularly significant issue—data retention and biometric identification—drawing inspiration from the Ryanair case. The case notes published in the relevant section of the issue also address highly interesting and topical matters. Maria Lavalle’s note concerns a recent decision of the Regional Administrative Court of Lazio (Judgment No. 3030/2024) regarding an order by ENAC prohibiting the allocation of time slots after 10:00 p.m. at Ciampino Airport. Antonio Cecere comments on a recent judgment of the Naples Tribunal, which declared inadmissible, for lack of jurisdiction, an application for interim relief pursuant to Article 700 of the Italian Code of Civil Procedure concerning airport noise emissions. According to the Naples Tribunal, the matter falls within the exclusive jurisdiction of the administrative courts. Federica D’Andrea’s contribution addresses the issue of maritime state property concessions and analyses a recent judgment of the Constitutional Court (No. 109/2024), which ruled on Regional Law of Sicily No. 2 of 22 February 2023 (the Regional Stability Law 2023–2025). The “Cases and Issues” section includes two contributions. The first, by Emma Maresca, starting from Judgment No. 17/2017 by which the Tribunal of Civitavecchia declared Alitalia insolvent and set deadlines for the filing of claims and the examination of the schedule of liabilities, examines the impact of Article 31 of Decree-Law No. 48/2023 (concerning the “Completion of Alitalia’s liquidation process”) on the possibility for creditors other than the State to recover claims admitted to the insolvency proceedings with priority status. The second contribution, by Roberta Brignoccolo, analyses a recent judgment of the Regional Administrative Court of Piedmont (Third Section, Judgment of 28 October 2024, No. 1093), which addresses the exact scope to be attributed to the attempt at conciliation in matters concerning passenger rights guaranteed by EU law (Regulation (EC) No. 261/2004). Thus, the second issue of 2024 also addresses a wide range of topics that are relevant both from a scholarly and an operational perspective.
Fascicolo I/2023
The first issue of Diritto e Politica dei Trasporti for 2023 brings together contributions of the utmost topical relevance and unquestionable scholarly interest. This is the case with the essay by Pierre de Gioia Carabellese and Camilla Della Giustina, which addresses the topic of automated vehicles, with a specific focus on regulation in Great Britain. The contribution highlights the progress achieved in the United Kingdom compared to the European Union, which is significantly lagging behind in regulating the sector. Of particular interest is a recent Joint Report by the Law Commissions (of Scotland and of England and Wales), which reviews the main critical issues related to autonomous vehicles. In addition to analysing the report, the Authors also discuss the future regulatory framework that could be based precisely on its findings. The contribution by Marcello Condemi is also highly interesting and focuses on the so-called “French amortisation method”. Although highly specific, this topic is destined to have a significant impact on the infrastructure and transport sectors as well. As clearly emerges from the article, it is a multidisciplinary and interdisciplinary issue, as demonstrated by the very recent intervention of the Supreme Court of Cassation in the context of the so-called “preliminary reference” under Article 363-bis of the Italian Code of Civil Procedure, introduced by Legislative Decree No. 149 of 10 October 2022 (the so-called Cartabia civil reform). In particular, the Author focuses on a question raised by the Tribunal of Salerno on 19 July 2023 in the context of a preliminary reference pursuant to Article 363-bis of the Code of Civil Procedure, which was accepted by the First President of the Supreme Court of Cassation who, by order of 6–7 September 2023, deemed it appropriate to refer the matter, instead of to a simple panel, to the Civil Joint Sections. The case notes are also of great interest and all deal with issues of unquestionable relevance for scholars in the field. Caterina Villanacci comments on a recent judgment of the Council of State by which the Court decided proceedings under Article 114 of the Code of Administrative Procedure brought by Ryanair DAC, seeking enforcement of a previous judgment of the Council of State (No. 8683/2022), challenging a note issued by Assoclearance, and also requesting a declaration of nullity of a note by ENAC deemed to infringe the claimant’s subjective legal positions. Federico Vaccaro’s contribution is likewise of great interest and concerns access to documents relating to personnel recruitment procedures. In particular, the Author focuses on the recent ITA S.p.A. case reviewed by the Council of State. The case concerns an appeal brought by the National Association of Air Transport Personnel (NAVID) seeking annulment of ITA S.p.A.’s refusal to grant access to all documents relating to personnel recruitment procedures, and in particular to notices, corporate regulations, resolutions of executive bodies and managerial determinations indicating the specific criteria followed and the hiring methods adopted. Marina Spoletini’s contribution, entitled “Public Agreements and Administrative Cooperation in the Conflict between the Protection of Competition and the Maximisation of the Public Interest”, concerns the case provided for under Article 15 of Law No. 241/1990. The issue—on which the Council of State ruled—originates from an appeal brought by Elitaliana S.r.l., concessionaire of the areas of Rome Urbe Airport and of the air rescue service from 1 July 2009 to 30 June 2018, seeking annulment of the concession granted by ENAC to the Lazio Region and to Ares 118 for areas at the airports of Latina and Viterbo, as well as the subsequent decision to entrust them with the management of those areas and the HEMS service without first conducting a public tender procedure. The Author reconstructs the case starting from the judgment of the court of first instance. Marco Di Giugno’s case note concerns a judgment of the Ordinary Court of Cagliari (No. 789/2021), which allows the Author to reflect on the topic of negligent air disaster as regulated by the Italian Criminal Code (in particular, Articles 428 and 449 taken together). In this case as well, the contribution is highly interesting, also for the systematic insights offered by the Author. Antonio Cecere’s note addresses a topic of great relevance and topicality: territorial continuity. The Author analyses it in light of recent administrative case law, focusing in particular on the criteria for the imposition of public service obligations in air transport. The issue concludes with the contribution by Mara Costantino, included in the “Cases and Issues” section. The Author reviews several aspects discussed by the Innovative Payments Observatory and the Digital Innovation in Tourism Observatory of the School of Management of the Polytechnic University of Milan, in the context of the webinar “Mobility in Italy: Market Values and Payment Instruments in 2022”, during which the second research study on Mobility in Italy was presented. The first issue of 2023 therefore offers the Journal’s readers a valuable opportunity for education and updating on topics of the utmost interest and topical relevance in the field concerned.
Fascicolo II/2023
The second issue of the Journal for 2023 also features contributions of considerable importance, not only because of the relevance and topicality of the subjects addressed, but also due to the high level of analysis offered by the Authors. The essay by Carlos Alberto Neves Almeida examines the issue of passenger rights in multi-level case law, with particular reference to Portuguese and EU jurisprudence. This is a wide-ranging study that critically reconstructs the not always consistent approach adopted by Portuguese courts over the years and focuses on certain key principles—such as the principle of exclusivity—regulated by various international instruments, including the Warsaw Convention of 1929 and the Montreal Convention of 1999. The study also offers a comparative examination of case law from other legal systems, notably those of the United Kingdom and the United States, with specific reference to the so-called doctrine of complete preemption. In addition, the relationship between the Montreal Convention of 1999 and Regulation (EC) No 261/2004 is analysed, highlighting potential overlaps between the two instruments, particularly with regard to flight delays and the related right of passengers to financial compensation. The contribution by Danilo Ceccarelli Morolli also addresses a topic of great interest, including for potential future interdisciplinary research. The Author examines the concept of the “dromos”, namely the imperial postal service of the Eastern Roman Empire, starting from the importance of transport routes for the Romans, who created an articulated, complex and efficient system known as the cursus publicus. As the Author clearly explains, this consisted of a genuine network of roads, supply stations and services for the transport of people, goods and messengers in the interest of the “State”. Located at the heart of the Urbs, this network extended throughout the Empire for approximately two hundred thousand kilometres. Subsequently, the cursus publicus came to be referred to in Greek as δρόμος (dromos). Today, the topic of the dromos has once again become central to international scholarly debate, and the Journal contributes to this discussion through the present article.
The essay by Marta Gaggero addresses a matter of utmost topical interest, focusing on the use of artificial intelligence in space activities. The Author questions the adequacy of the current international legal framework governing outer space to cover the use of technologies such as remote sensing satellites, astronaut assistants, collision avoidance systems, planetary exploration, and space debris removal. The analysis highlights how the use of such systems may give rise to risks stemming from insufficient legal coverage in terms of liability for damage caused by space objects, including State responsibility for monitoring and control. This leads to the conclusion that international regulatory intervention is necessary, either through the adoption of a new treaty or through amendments to existing instruments. The contribution by Niccolò Ferracuti addresses a topic that appears more geographically limited: the measure adopted by the European Commission on 1 December 2022, by which France temporarily prohibited, for a period of three years, the exercise of traffic rights on certain routes of the national scheduled public air transport service. The study focuses critically on the reasonableness and proportionality of the measure, taking as its main point of reference Article 20 of Regulation (EC) No 1008/2008, which allows Member States, in the event of “serious environmental problems”, to limit or prohibit the exercise of traffic rights.
The section devoted to Case Notes includes three interesting contributions, all concerning recent judicial decisions of significant scientific relevance. Federica Ciufoli and Alessandro Scifo analyse recent administrative case law relating to ground handling services, focusing in particular on the prerequisites and characteristics of the measure limiting access by ground handling service providers, which, under the current regulatory framework, may be adopted by ENAC despite the introduction of the principle of liberalisation in this sector.
Manuela Galizia examines the merger by incorporation between two airport management companies, GEASAR S.p.A. and SO.GE.A.AL S.p.A., a case reviewed by the Court of Cagliari, which annulled the resolution adopted by SO.GE.A.AL S.p.A. by means of an interim order.
The contribution by Marco Di Giugno reconstructs the procedure for the granting of airport concessions in light of the applicable legislation and administrative case law, focusing on a ruling of the TAR Tuscany, which affirmed the need for public administrations involved in the procedure for granting a total airport management concession to act promptly by means of an express decision. The Cases and Issues section hosts two contributions. The first, by Antonio Domenico Brasca, Pierluigi Gervasi and Attilio Marchese, addresses the delicate issue of work addiction syndrome in the railway sector during the COVID period. The second, by Marco Di Giugno, explores a highly interesting topic that may also constitute the basis for new lines of research: the overcoming of the public service obligation regime through a new model of co-marketing agreements.
The issue concludes with a book review by Giuseppina Agata Di Guardo of a recent work by Yolanda Bustos Moreno on drones and civil liability. The second issue of 2023 therefore represents, for the Journal’s readers, a valuable opportunity for training and scholarly updating on a wide range of topics of scientific relevance, including at the international level.
Fascicolo I/2022
Diritto e Politica dei Trasporti, in its first issue of 2022, hosts three essays addressing highly topical themes. Of particular interest are the considerations developed by Umberto La Torre in the opening essay, in which the Author focuses on the well-known case of the Costa Concordia, which ran aground on 13 January 2012 near the Island of Giglio—an event that, from its occurrence through to the management of the rescue operations, remains anomalous in the history of seafaring. It was a disaster, in the Author’s words, “so striking as to constitute a unicum that goes beyond any textbook case.” The analysis conducted is both thorough and detailed, as the Author highlights how, throughout the various stages of judicial proceedings relating to the incident, the courts focused almost exclusively on the highest-ranking officer, while the charges against those who, within the ship’s hierarchy, should have replaced him and assumed command (arguing from Article 293 of the Italian Navigation Code) were dismissed. The Author further observes that, in the case at hand, “absolutely consolidated theoretical principles on which the traditional figure of the ship’s master is founded” were called into question—namely, “that of sole and monocratic power”—while at the same time the core prerogative of the institution, namely the indispensable nature of command, was reaffirmed. The central profiles of the contribution concern the vacatio of command, aspects that have been little discussed and are therefore examined in depth in this context. The contribution by Pierre de Gioia Carabellese and Camilla Della Giustina, entitled “Employment and Platforms, viz. Self-employed versus Workers, that is the Question (or the Irresolvable Dilemma). Reflections about ‘Uber v. Aslam’ of the UK Supreme Court”, instead analyses work performed through the platform economy, with particular reference to English case law based on the UK Employment Rights Act 1996, in its most recent version as amended in 2020. The essay specifically addresses the legal classification of the new figure of the “gig worker” or “gig employee”. The essay by Valerio Di Stefano and Francesco Gaspari on port planning also addresses a particularly important topic, placing specific emphasis on environmental sustainability and the National Recovery and Resilience Plan (PNRR). The issue also includes two contributions by Mara Costantino, published in the “Cases and Issues” section. The first concerns local and regional public transport and examines two Protocols against aggression signed by the Minister of Infrastructure and Sustainable Mobility (MIMS), Enrico Giovannini, together with the Minister of the Interior, Luciana Lamorgese, the Conference of Regions and Autonomous Provinces, ANCI, and the associations and trade unions that are signatories to the relevant collective agreements, including Asstra, Anav, Agens, Filt-Cgil, Fit-Cisl, Uil Trasporti, Faisa-Cisal, Ugl-Fna, Ugl-Ferrovieri, Fast-Confsal and Orsa Trasporti. The second contribution deals with public procurement and examines a circular issued by the MIMS and addressed to the main public contracting authorities (Rete Ferroviaria Italiana, ANAS, Port System Authorities, Public Works Provveditorates, etc.), calling on them to proceed as swiftly as possible with the payment to companies of compensation due under existing contracts as a result of increases in the prices of materials that occurred in 2021.
Fascicolo II/2022
The second issue of Diritto e Politica dei Trasporti for 2022 addresses a wide range of topics characterised by a strong degree of topical relevance. This relevance stems from institutional initiatives at both the national level (such as the new National Airports Plan) and the international level (such as the ICAO General Assembly), as well as from judicial decisions analysed in specific case notes and from issues of unquestionable novelty (such as the metaverse and mobility), examined with reference to the areas covered by the Journal. Ruwantissa Abeyratne’s contribution addresses a classic topic, namely the interpretation of the Chicago Convention. The Author’s analysis follows a non-traditional approach in that it moves from classical theory and the law applicable to treaties, but interprets the provisions of the Convention in the light of what the Author defines as “modern aviation practice”. Raffaele Chiarelli’s contribution is also of interest, offering reflections prompted by a recent volume on urban mobility, while Danilo Ceccarelli Morolli’s article deals with a legal-historical topic: the relationship between distance and jurisdiction, themes that have always been closely connected. The article highlights, in particular, how this issue had already arisen in Roman legal experience, with specific reference to the praefectus urbi, who in Constantinople, as eparch (ἔπαρχος), assumed even greater importance as an institution of judicial administration, and not merely administrative governance. Francesco Gaspari’s contribution addresses an issue of the utmost topical relevance: the new National Airports Plan, drafted by ENAC and submitted for consultation to the Ministry of Infrastructure and Sustainable Mobility (MIMS) in October 2022, which opened the consultation process until 21 November 2022. The article highlights how the Plan—together with other current regulatory trends—reveals ENAC’s emerging role as a promoter of a new aviation policy at the regional (European Union) level. This new regulatory model is based on the concept of the so-called Facilitating State (Stato Facilitatore), which finds its constitutional foundation in Article 118(4) of the Italian Constitution. The contribution also examines the dual dimension of resilience (conservative and transformative) as applied to air transport. Walter Spinapolice’s contribution deals with a highly specific topic, namely social cooperatives and voluntary organisations. In particular, the Author analyses recent case law on the awarding, by way of agreements, of emergency and urgent medical transport services, also focusing on the issues of rebates (ristorni) and profit-making purpose. Valentino Vescio di Martirano’s article addresses the right to mobility, with specific regard to freedom of movement, starting from self-determination in the digital context and in the metaverse. The Author analyses pathologies of consent and the ways in which the digital environment may reduce or replace individuals’ self-determination.
The issue also includes three case notes. Francesco Ferrara’s contribution concerns a decision by a Sicilian court of first instance, offering an opportunity to reflect on the extrinsic limits of liability arising from qualified social contact in determining compensation for pecuniary damages. Paolo Piazza’s note deals with a recent decision of the local administrative court concerning local public transport, while Vincenzo Finocchiaro’s note analyses a recent judgment of the Court of Cassation on the limits of collective autonomy in determining the basis for calculating holiday pay.
Also in this issue, which concludes the year 2022, the Journal therefore offers its readers contributions on topics of great interest and topical relevance.
Fascicolo I/2021
The first issue of Diritto e Politica dei Trasporti for 2021 could not but open with two important pieces of news directly concerning the Journal. The first relates to the recognition of the Journal’s scholarly status by ANVUR on 30 June 2021 and its inclusion among the scientific journals in Area 12. This is an excellent achievement, especially considering that it was attained just two years after the Journal’s launch (the application having been submitted in October 2020). On this occasion, I would once again like to thank all those who contributed to reaching this important milestone—from the Editorial Board to the Authors whose contributions have appeared in the Journal since its first issue in 2018, as well as the Scientific Committee and the Editorial Staff. Much has been accomplished so far, and many further projects are underway to continue fostering the Journal’s growth. The second piece of news concerns the appointment of Pierluigi Di Palma as President of the Italian Civil Aviation Authority (ENAC). In my capacity as Editor-in-Chief of Diritto e Politica dei Trasporti, I would like, on behalf of all the Journal’s governing bodies, to extend my warmest congratulations on this prestigious appointment.
Turning now to the contributions included in this first issue of 2021, all of them address topical issues characterised by various problematic aspects. Of the utmost relevance is the contribution by Pierre de Gioia Carabellese, which addresses the topic of unmanned vehicles and the related legal and insurance risks. The study specifically examines the experience of the United Kingdom in this field, with particular reference to the regulation of liability for driverless vehicles. The Author also considers the possible implications that the UK approach may have for the Italian legal system. The contribution on aerospace transport systems is also highly topical and revisits issues that have long been at the centre of scholarly debate (and beyond), such as the delimitation of the boundaries between airspace and outer space and, more generally, the relationship between air law and space law. These fields are currently subject to two distinct and separate legal regimes that are not fully coherent with one another. Hence the need to identify a new regulatory framework for aerospace transport systems and a body—potentially ICAO—to which this demanding, yet increasingly unavoidable, regulatory role might be entrusted. Veronica Sordi’s contribution is likewise of great interest, as it reviews recent national and EU case law on State aid. In particular, the article starts from the relevant principles governing State aid and then focuses on aid granted to airlines under Sardinian Regional Law No. 10/2010. The Author examines the litigation arising from that legislation, on which the European Commission had ruled. The Commission’s decision was subsequently challenged before the General Court of the European Union, which delivered its judgment in 2020. The Author also discusses aid granted to an economic operator active in the production and sale of concrete under Sardinian Regional Law No. 28/1984, as well as the ensuing judicial proceedings, particularly before the administrative courts. The two case notes published in the Journal are also of clear interest. Francesco Ferrara’s note analyses the determination of compensation for the loss of baggage on a flight and the allocation of the burden of proof, recently examined by EU case law (Court of Justice of the European Union, judgment of 9 July 2020, Case C-86/19, Vueling Airlines). Agata Di Guardo’s note, by contrast, focuses on a very recent judgment of the Supreme Court of Cassation concerning a case of individual dismissal of a first officer (co-pilot) assigned to Canadair CL-415 aircraft and employed in forest fire-fighting services. Among the various aspects examined in the contribution, particularly interesting are the issues relating to the relationship between State regulations and ENAC’s technical regulatory framework. The Author also pays special attention to the delicate boundaries between European and domestic legislation, especially with regard to the regulation of licensing by the JAR-FCL developed by the Joint Aviation Authorities at the European level and the implementing rules adopted by ENAC.
In the “Cases and Issues” section, mention should also be made of the contribution by Mara Costantino, which focuses on the role of sustainable infrastructure in revitalising the national system. The Author reviews the Deloitte–CASMEF findings presented at the fourth edition of the Annual Observatory on Infrastructure, Regulated Sectors and Infrastructure, whose aim is to contribute concretely to the debate on improving the functioning of sectors that are critical to the country’s development.
Fascicolo II/2021
The second issue of 2021 of Diritto e Politica dei Trasporti features contributions addressing highly topical and relevant issues. This is the case with the article by Pierre de Gioia Carabellese and Camilla Della Giustina on Smart Cities: Innovation, Infrastructure, and Smart Finance – A New Parameter for Constitution and Digital Regulation. The paper begins with the concept of the city and then focuses on environmental sustainability, also highlighting the challenges posed by digitalization. Particular attention is given to digital banking within the context of smart cities. Similarly, the article by Valerio Di Stefano and Edoardo Breda on the regulation of the railway sector addresses a very current topic, taking into account the National Recovery and Resilience Plan (PNRR). The authors pay special attention to sectoral innovations in light of the European Union’s Green New Deal and the Fourth Railway Package, while also providing a historical and evolutionary overview of the issues discussed. Antonella Balante’s contribution examines the balancing of public and private interests during the execution phase of public procurement contracts. The Author analyzes remedies available in the case of mutual non-performance, paying attention not only to substantive aspects but also to procedural ones. The note included in the corresponding section examines a recent ruling by the First Section of the Council of State (opinion of 15 March 2021, no. 403) concerning the right to education for students with disabilities and school transport services. This decision is particularly important not only theoretically but also practically, especially considering the ongoing pandemic, which has exacerbated the already difficult financial situation of public entities, including local authorities. At the core of the ruling is the correct legal qualification of school transport—specifically, whether it should be provided free of charge or with a contribution from the users.
Fascicolo I/2020
The first issue of 2020 of Diritto e Politica dei Trasporti presents contributions analyzing several highly topical issues. Of particular interest is the article by Mario O. Folchi, President of the Asociación Latino Americana de Derecho Aeronáutico y Espacial (ALADA), which summarizes the main stages of the new Proyecto de Código Aeronáutico Latinoamericano. Initiated in 2016, this project aims to update the first Proyecto from 1985, which had served as a key reference for Latin American countries in reforming their national aviation laws. Technological developments are the main focus of three articles on unmanned vehicles. Two of these concern remotely piloted aircraft (RPAS or drones), examined from different perspectives, while the third addresses unmanned ships. Federico Franchina’s contribution examines the new drone regulations, focusing specifically on EU Regulation 2018/1139 and the most recent EU regulations: Delegated Regulation 2019/945, concerning unmanned aircraft systems and third-country operators of unmanned aircraft systems, and Implementing Regulation 2019/947, setting out rules and procedures for the operation of unmanned aircraft systems. Another article—authored by the present writer—reviews the various uses of RPAS, particularly the growing use of drones for public and institutional services in recent years. It then focuses on the special regulation issued by ENAC on 23 March 2020, which was repeatedly extended, aimed at addressing the Covid-19 emergency by introducing exemptions to certain provisions of ENAC’s 2019 RPAS regulation. The contribution also considers the potential legal qualification of RPAS used for these purposes as state aircraft, a classification explicitly excluded by ENAC, though this exclusion presents certain critical aspects highlighted in the paper. On the technological development front, Cecilia Severoni’s article addresses the need for an adequate regulatory framework for unmanned ships, highlighting the main current issues, particularly regarding the rescue of people and goods at sea. The Covid-19 pandemic is also the focus of Barbara Verzicco’s study, which analyzes public procurement ordinances and Decree-Law No. 76/2020. This decree aims, among other objectives, to encourage public investment in infrastructure and public services and to mitigate the negative economic impacts arising from containment measures and the global health emergency. The issue closes with two case notes. The first, by Giuseppina Agata Di Guardo, concerns a recent ruling by the Tribunal of Parma on bird strikes. The second, by Eleonora Papi Rea, examines the concept of an air accident as addressed by the Court of Justice of the European Union in its 19 December 2019 ruling concerning passenger injuries.
Fascicolo II/2020
The second issue of 2020 of Diritto e Politica dei Trasporti presents contributions addressing highly current and significant topics. Norberto E. Luongo focuses on recent developments in the dispute resolution mechanism within ICAO. This topic has been inevitably influenced by the recent “Al-Ula Declaration,” signed on 5 January 2021 by the Kingdom of Saudi Arabia, the United Arab Emirates (UAE), Bahrain, and other Gulf Cooperation Council (GCC) member states, together with Egypt. The Declaration ended the three-and-a-half-year dispute with the State of Qatar. Following this agreement, Saudi Arabia and the UAE took several initiatives to reopen land, sea, and air corridors for traffic to and from Qatar. This event was highly significant and was welcomed by ICAO. A critical review of the protection of the fundamental right to mobility is also offered. The article challenges the increasingly common view, reflected in many studies and multi-level policies or strategies, that mobility should be treated as a market service (“mobility as a service”), like any other good or service. The author explores the relationship between the right to mobility, understood as a presupposed right, and the territory, conceived as a social formation (pursuant to Article 2 of the Italian Constitution) and as a generator of legal situations (both active and passive) for the inhabitants (denizens) of the respective communities. Mobility is thus framed as a fundamental social right, to be protected and guaranteed in accordance with the indisposable principle of dignity, understood as a supra-constitutional value not subject to balancing with other values. Alessandro Torello contributes a study analyzing the freedom of movement of goods and the role of digitalization within both the European Union and Mercosur, taking into account the treaties and customs codes applicable in the two customs unions. Ilaria Pavan addresses privatizations of airport management companies and corporate developments in airport concessionaires, with a particular focus on two recent corporate transactions involving the airport management companies of Bolzano and Olbia. Finally, of notable relevance and timeliness is the case note by Giuseppina Agata Di Guardo, which examines a recent ruling of the Court of Justice of the European Union on the relationship between monetary compensation and additional damages under Regulation (EC) No. 261/2004.
Fascicolo I/2019
The transport sector today faces multiple new challenges, closely linked to the issue of sustainable development, which is emerging with increasing urgency. It was precisely from the need to study the new horizons shaping the development of transport law that the journal Diritto e Politica dei Trasporti was born. As Prof. Gaspari highlighted in the presentation of the first 2018 issue, the journal aims to create a public arena where scientific, political-institutional, and industry debates can mutually enrich each other. The journal also arose from the initiative of our friend, lawyer Pierluigi Di Palma, with whom the Centro Studi De.me.tra (Development European Mediterranean Transportation) was established. Today, the Center is a recognized cultural reference point in the world of air transport and the aerospace sector. The innovations in the sector are numerous, and the journal provides original insights into some of them. Regarding air transport, a particularly relevant topic is airport capacity, discussed during an important roundtable organized by the Center at ENAC last July. On that occasion, lawyer Di Palma emphasized the importance of reaching an “optimal” level of capacity at individual airports, where integration, standardization, and interoperability of processes form the basis for operational and technological changes that enable efficient use of existing capacity. In his paper, published in this issue of the journal, President Di Palma highlights that the frontier of new air traffic management capacity—adequate to meet future demand—requires the implementation of next-generation technologies, increasingly focused on environmental sustainability, which allow optimal use of infrastructures, making them more capable of responding effectively to market needs.
Sustainability in the transport sector, with particular reference to the port system, is also addressed in this issue by Dr. Letizia Colangelo. Her contribution examines the evolving regulatory framework and the role of case law in promoting sustainable development in national and European ports. She highlights how the principle of sustainable development has played a central role in balancing the need to protect the environment with the economic growth resulting from increased port traffic. According to the author, this has led to a paradigm shift in administrative action when public authority is exercised in this sector.
Other contributions in this issue are notable for the importance and timeliness of the topics discussed. Dr. Giovanni Fabio Licata’s comparative law study analyzes the regulation of railway transport in the United States, with specific attention to antitrust remedies, aiming to draw useful indications for improving the regulation of domestic and EU air transport. Equally timely is the case note by lawyer Emanuela Lanzi on antitrust sanctions for web check-in charges, analyzing a recent ruling of the Italian Council of State (n. 7299/2018) which referred a preliminary question to the Court of Justice of the European Union. Finally, Prof. Danilo Ceccarelli Morolli contributes a historical analysis of maritime law, showing how the “legal texts” of Ancient Mesopotamia, particularly Assyro-Babylonian legislation, represent the precursor of what would later become maritime navigation law.
Fascicolo II/2019
This issue examines transport regulation from multiple perspectives—national, EU, and international law—through interdisciplinary contributions. In keeping with the spirit of the journal, it features work by both Italian and international scholars, highlighting the journal’s ambition to serve as a reference point not only for domestic researchers and operators but also for the global transport community. In addition to contributions by leading experts, the journal also publishes carefully curated updates on the latest legal and regulatory developments. Cristiano Celone’s article focuses on the independent regulation of the railway sector. By adopting a broad perspective, he analyzes the functions and main acts of the Italian Transport Authority (ART), as well as the complex interaction of powers between ART and other regulatory authorities. On the regulatory front, with a focus on passenger protection—as both users and consumers—Luis Alberto Marco Arcalá and Mª Victoria Petit Lavall provide notable analyses. Marco Arcalá examines the regulation of travel contracts under EU and Spanish law, while Petit Lavall focuses on the protection of passengers against abusive clauses in air transport contracts, drawing on a detailed review of relevant case law. Fernando Elorza Guerrero analyzes the “Aviation Strategy for Europe” and its social implications, particularly addressing issues related to social dumping in the air transport sector. Directly linked to passenger protection is the topic of transport infrastructure improvement. Anna L. Melania Sia examines the main challenges facing the Italian air transport infrastructure network and proposes measures for reorganizing the national airport system. Finally, the issue highlights the strong connection between transport and technological innovation. Ruwantissa Abeyratne explores emerging technologies aimed at providing viable alternatives to the current air transport system, including an analysis of the use of drones and the regulatory challenges their deployment presents.
Fascicolo I/2018
Why a new journal? Why a new journal that aims to operate in two dimensions, law and transport policy?
The answers to these questions are partly interconnected. First and foremost, the objective of the Journal is to contribute to the dissemination of legal-regulatory knowledge and policies of the multi-level transport system (Italian, European Union, and international). In the information society, the forms and tools for disseminating ideas, as well as research and the circulation of information, now take place predominantly online. The speed with which information and knowledge are produced and circulated therefore requires being “online” and meeting the needs of the e-society. This is the first element that distinguishes the Journal from existing ones. A further distinguishing feature is the particular attention the Journal pays to transport policies, drawing on contributions not only from scholars and academics but also from professionals and institutional actors. The Journal is therefore aimed not only at an academic audience but also at transport sector operators and public decision-makers. Its goal is to represent a new public arena in which scientific, political-institutional, and sector-operator debates can mutually nourish each other in a constant dialogue inspired by pluralism and the exchange of different opinions and methodological, cultural, and political approaches. The conviction is that from such free and broad debate, better decisions can emerge in the interest of the community. The Journal is published by the Demetra Study Center (Development of European Mediterranean Transportation), based in Rome, and is registered with the Rome Court under no. 150/2018 of 19 September 2018. The undersigned is listed in the Special Register of Responsible Editors of scientific journals or periodicals, pursuant to Article 28 of Law no. 69 of 3 February 1963, annexed to the Journalists’ Register of Lazio.