Road accident victims in Italy for Foreigners

The judgement under case “Cass. Civ., 1493/2012” recognises that the condition of reciprocity set out in Article 16 of “Disposizioni sulla legge in generale” can be grounds for legal action on behalf of a foreigner. In the case of contention, in fact, an Italian Defendant may only argue the merit of a claim and may not actually dispute the validity of jurisdiction (Cass. civ., S.U. n. 24814 in 2007).

Subsequently, in the present case, it was stated that not only was the non-Union citizen entitled to pecuniary and non-pecuniary losses in respect of his injuries and any consequent damages to his health (both physical and psychological), but he, as well as his relatives, were also entitled to bring a claim against the relevant insurer and the ‘Victims of the road Guarantee Fund’. This demonstrates, irrespective of the condition of reciprocity set out in the aforementioned article, there is no disparity between a non-EU citizen and an Italian citizen in regards of a claim in Personal Injury. However, the main issue in this case was whether the condition of reciprocity was applicable in regards to the compensation of damages to a road user.

Past case law on the matter has been somewhat contradictory. An example can be found in the form of the Italian Supreme Court case n. 1681 of 10/02/1993, where proceedings were initiated by an Egyptian citizen against the ‘Victims of the road Guarantee Fund’. It was held that in the event of a road accident, the non-EU citizen had only to prove that his home State granted access to legal recourse to an Italian citizen and allowed him to bring a claim against a compensatory body comparable to the ‘Victims of the road Guarantee Fund’ in Italy (whether existing or not), in order to have a successful claim.

In contrast, under the two Italian Supreme Court cases n. 10504 of 07/05/2009and n. 4484 of 24.2.2010, it was held that the condition of reciprocity principle was applicable only in respect of non-fundamental rights, as rights granted by the Constitution, by definition, cannot be limited by any condition irrespective of nationality, European or not.

In conclusion, the instant case followed the judgement set out in “Cass. civ., 450/2011”, which held that by taking a constitutional viewpoint of Art. 16, the principle of the condition of reciprocity is not to be applied in respect of relatives of a foreigner, irrespective of EU membership or residence, when requesting compensation for damages due to a loss which infringes any inviolable human rights, such as the right to life and health.

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Dec 2015