According to Royal Decree N. 262 of 16 March 1942, “The alien is entitled to the civil rights attributed to citizens on a condition of reciprocity and save for the provisions contained in special laws. This provision also applies to foreign legal persons”.
The legislation of reference concerning the entitlement of foreign citizens to civil rights is now set forth in Legislative Decree N. 286 of 25 July 1998 (Consolidated Law of the provisions concerning the regulation of immigration and the provisions on the status of the alien) and the relative implementing regulation (Decree of the President of the Republic N.394 of 31 August 1999).
Cases in which it is not necessary to verify the existence of the condition of reciprocity:
Pursuant to Legislative Decree N. 286 of 25 July 1998, the subjects officially recognised to be on an equal standing as Italian citizens and therefore exempted from the obligation to verify the condition of reciprocity are the following:
- The citizens (natural or legal persons) of the EU Member States and the citizens of the EEA Member Countries (Iceland, Liechtenstein and Norway);
- The citizens of non-EU States staying on the Italian territory in possession of an immigration visa and a regular permit to stay issued under an employment contract or to exercise as a self-employed worker, sole trader or for family, humanitarian or educational reasons;
- Stateless persons residing in Italy for at least three years;
- Refugees residing in Italy for at least three years.
“Investment”, regardless of the legal form chosen and the legal order of reference, refers to any asset invested by the investors of a contracting party in the territory of the other party, in compliance with the laws and regulations of the latter.
Some of the most common forms of investment include: property rights in movable and immovable property and other rights in rem; monetary claims or other benefits payable under contracts; the acquisition of existing companies or of shares thereof; the establishment of new companies; royalties and industrial property rights; legal concessions such as the licence to explore, extract and exploit natural resources. According to established interpretation, it is believed that the obligation to verify the existence of the condition of reciprocity does not apply to the citizens of those Countries with which Italy has signed Bilateral Agreements in matters promoting and protecting investments (Bilateral Investment Treaties or BITs). Indeed, in this case, the Agreement’s ratification and enforcement provision acquires the nature of a “lex specialis” compared to the general provision made in Art. 16 of the “Preleggi”, thus holding the condition of reciprocity to exist relatively to the matters regulated. In any case, it is hereby specified that for the specific issue of assuming corporate offices, in case this is not considered in the Agreements, the condition of reciprocity should be ascertained on a case-by-case basis.
Pursuant to Article 10 of the Constitution, the Italian legal system conforms to the generally recognized principles of international law. Moreover, Article 117, paragraph 1, of the Constitution provides that Legislative power shall be vested in the State and the Regions in compliance with the Constitution, as well as the constraints deriving from EU legislation and international obligations. Therefore, the condition of reciprocity shall be applied in conformity with the obligations entered into by the Italian Republic under the bilateral or multilateral agreements that involve the State in respect of which the existence of the condition of reciprocity has to be verified pursuant to Article 16 of the “Preleggi”.