A few weeks ago (23 December 2024), the Italian Supreme Court (Corte di Cassazione) delivered its judgment No 34017/2023, which, overturning the decision of the Court of Appeal of Trieste, resolved a dispute on the applicable law for damages resulting from a traffic accident that occurred in Slovenia in 2008.
The Court of Appeal applied Italian law to that accident, as the law of the country where the damage occurred, on the ground that “the impairment of physical integrity into which such harm materializes constitutes – ex Art 4 par 1 Regulation (EC) No 864/2007 – a direct consequence of the unlawful act relevant for determining the applicable national law, both in reference to the temporary component of the impairment and the permanent one. Moreover, based on this clarification, given that it is undisputed that less than an hour after the accident, the injured party had already returned to national territory, there can therefore be no doubt that Italy is the country in which the harm must be considered to have been suffered” (point 16).
Contrary to the assertions of the Court of Appeal, the Supreme Court – applying Art 4 par 1 of Regulation Rome II in the light of the relevant case-law of the Court of Justice (e.g., CJEU, 10 December 2015, case No C-350/14, Florin Lazar v. Allianz SpA) – stated that “what is considered as the ʻdirect damageʼ (the connecting factor) is the injury itself and not the impairments which, as is evident, are bound to manifest (in terms of temporary, total, or partial disability) and stabilize (in terms of permanent disability) over a timeframe that is not instantaneous but more or less prolonged and, consequently, potentially in different locations” (point 8). Therefore, “no matter how brief the interval was between the injury to physical integrity caused by the accident and the return of the injured party to Italy”, it is only the initial unequivocal moment that the Regulation assigns the role of the connecting factor for determining the applicable law (point 16).
Furthermore, “the fact that the application of Slovenian law by the Italian judge might lead to the enforcement of shorter prescription periods or the awarding of non-pecuniary damages for the violation of the right to health in an amount lower than what would be awarded under Italian law falls within the framework of how protection is provided under foreign law”, as made applicable by the Regulation; “this cannot be regarded… as a conflict with overarching principles of constitutional rank or international public policy” (point 15.2).
The text of the judgment is available here.
On these topics, the readers of RDIPP may refer to:
Alberto Malatesta, 2006, No 1, 47 ff.;
Lidia Sandrini, 2013, No 3, 677 ff.;
Federica Sartori, 2023, No 2, 314 ff.