News Supreme Court rulings December 2021

1. Parental damage settlement: no to the “Milan tables”

In ruling no. 33005/2021, the Supreme Court has provided important clarifications on the subject of liquidated damages due to the loss of parental relationship, consisting of the suffering suffered due to the loss of a loved one, which occurred due to a wrongful act.

The Ermellini clarified that, for the liquidation of such damage, it is not possible to apply the “Milanese tables,” because “in order to ensure not only an adequate assessment of the circumstances of the concrete case, but also the uniformity of judgment in the face of similar cases.” the “usual mechanism that operates a correspondence between percentage point and monetary value” is not sufficient, but a table is required that also provides for the possibility of making adjustments in relation to the relevant factual circumstances (age of the victim and survivor, degree of kinship, cohabitation) on the final amount.

Moreover, the Court specified that it is possible to have recourse, where the exceptional nature of the case so requires, to an equitable assessment of damages pursuant to Article 1226 of the Civil Code, which disregards the application of any scale; in this case, the judge’s decision must be adequately motivated.

2. Service of tax documents by mail: the date of mailing assignment is considered

The Supreme Court, in United Sections ruling no. 40543 of Dec. 17, 2021, intervened on the subject of the service of taxation documents and the effects of this on compliance with the time limits set by individual tax laws.

In particular, the Justices held that the principle of subjective splitting of the effects of service also applies with reference to tax documents, “which is not precluded either by the peculiar recettivistic nature of such documents or by the quality of the person appointed to serve them.”

Therefore, for the purposes of compliance with the time limit, the moment that becomes relevant is the moment when the entity has put in place the necessary steps for the purpose of notifying the act and not the later moment when the taxpayer had actual knowledge of the act being served.

3. United Sections on the partial nullity of ABI surety bonds

The United Civil Sections of the Supreme Court handed down a long-awaited ruling (No. 41994/2021) on Dec. 30, 2021, on the subject of omnibus surety bonds drawn up in accordance with the 2003 ABI model, which reproduce clauses that are the result of upstream anti-competitive agreements.

Specifically, the issue concerned the fate of bank guarantees containing the slavish reproduction of Articles 2,6 and 8 of the 2003 ABI scheme, which were declared null and void by Bank of Italy Order No. 55/2005, because, given the large number of member banks of the ABI, their uniform application was likely to “substantially prevent, restrict or distort the play of competition within the national market.”

The Supreme Court has sanctioned the partial nullity of surety contracts “downstream of agreements declared partially null and void by the Guarantor Authority because they are in conflict with Articles 2(2)(a) and 101 of the Treaty on the Functioning of the European Union,” limited only to the clauses that reproduce the unilateral fencing constituting the prohibited agreement, “unless a different will of the parties can be inferred from the contract, or is otherwise proven.”