Major air law treaties
To which major air law treaties related to carrier liability for passenger injury or death is your state a party?
As Italy is a member of the European Union, it is subject to the legislation produced in the context of the EU. Indeed, pursuant to the Italian Constitution (articles 10 and 11), the international treaties and European Regulations are binding and have a direct effect in Italy, and there is no need for any implementation. Some European directives may be considered as self-executive and therefore must be considered as binding too, and do not require any enforcement in order to be applicable in Italy.
Italy is a party of the following air law treaties:
- Warsaw Convention - Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929);
- Rome Convention - Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (1952);
- Hague Protocol to the Warsaw Convention - Protocol to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1955);
- Guadalajara Convention - Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier (1961);
- Tokyo Convention - Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963);
- Montreal Additional - Protocol No. 1, Additional Protocol No. 2, Additional Protocol No. 3 and Additional Protocol No. 4 to Amend Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended by the Protocol Done at the Hague on 28 September 1955 (1975);
- Montreal Convention - Convention for the Unification of Certain Rules Relating to International Carriage by Air (1999); and
- Montreal Convention - Convention on Compensation for Damage Caused by Aircraft to Third Parties (2009).
Furthermore, according to EC Regulation No. 889/2002 of the European Parliament, the Montreal Convention 1999 has been transposed in the European legal system and, therefore, such Convention is directly effective in Italy and is also applicable to domestic carriage by air.
International carriage – liability for passenger injury or death
Montreal Convention and Warsaw Convention
Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?
Italian courts interpret the similar provisions of the Warsaw Convention and the Montreal Convention in the same way.
Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?
The liability of air carriers for passenger injury and death under European provisions - which, as stated above, are directly effective in Italy - is governed by EC Regulation 889/2002, which recalls the provisions of the Montreal Convention. Furthermore, such EC Regulation requires the ‘Community air carrier’ (eg, the air carrier with a valid operating licence granted by a member state in accordance with EC Regulation No. 1008/2008) to provide an advance payment within 15 days in cases of injury or death of a passenger sufficient to cover immediate economic needs on a basis proportionate to the damage suffered. In the case of death, the advance payment will not be less than 16,000 special drawing rights (SDR).
Definition of ‘carrier’
In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?
According to the Italian courts, the carrier is the person or the entity that is granted with a valid operating licence by the competent authority. According to the Italian courts, both the contractual carrier (which is the one with whom the passenger has entered into the air transport agreement) and the operating carrier (which is the one that is actually in charge of performing the carriage) are considered as carriers in accordance with the Montreal Convention and the Warsaw Convention.
Carrier liability condition
How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?
According to Italian courts and legislation:
- ‘accident’ is any unusual event (meaning any event that will be considered as uncommon with regard to the ordinary carriage performance), external to the passenger, occurring to the latter during the execution of the air carriage (Cass Civ No. 14666/2015). Such event will take place between the time any person ‘boards’ the aircraft until all passengers have disembarked;
- ‘bodily injury’, as per the interpretation given by Italian law and by the courts, should be any illness in the body. Nevertheless, according to the decision of the EU Court of Justice of 6 May 2010, there has been an extensive interpretation of the damage mentioned in article 17 of the Montreal Convention in order to include even the non-material damages. Such interpretation is therefore shared by some Italian courts (Court of Biella on 16 June 2016) (see question 36); and
- ‘in the course of any of the operation of embarking or disembarking’ has caused a conflict of case law in Italian courts. On one hand, it has been interpreted strictly by stating that the carrier will not be deemed liable for the damages suffered by the passenger in the course of the transportation between the terminal and the aircraft, because such transportation is executed by an autonomous subject that could not be considered as an accountable part of the carrier itself (Cass Civ, Sez III, No. 12015/2001). On the other hand, more recent decisions widened the liability of the air carrier to damages that occurred during those preliminary or ancillary activities in connection with the carriage (such as the above-mentioned transportation of passengers between the terminal and the aircraft). In such cases, the air carrier has the burden of proof that the damage is a consequence that is unforeseeable and unavoidable with ordinary and reasonable diligence (Court of Messina No. 1147/2015, Cass Civ No. 9811/2018).
No negligence defence
How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?
According to the Italian courts, pursuant to the Conventions and the Italian Navigation Code, there is a presumption of liability on the carrier. In order to overcome such presumption, the carrier will prove its ‘no negligence’ by having adopted ‘all reasonable measures’ to avoid the damage. The generic proof of the use of ordinary diligence has not been deemed as sufficient, but Italian courts demand the carrier provide the evidence of each concrete and practical measure adopted, and evidence of the specific cause of the damage. As a consequence, the carrier bears the liability for any damage caused to the passengers owing to unknown causes (Cass Civ 20787/2004).
With regard to ‘wilful misconduct’, Italian courts stated that the liability of the carrier should be objectively appraised, on the basis of normal forecasting criteria. According to such decisions, the carrier’s liability lies in the ‘colpa con previsione’ (wilful misconduct - Court of Milan on 25 September 1995; Cass Civ No. 8328/2001): in such cases, the carrier has been considered as liable on the basis of the fact that the latter acted recklessly and accepted the damage as a possible outcome of its conduct, being aware of the fact that it could have avoided it.
Advance payment for injury or death
Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?
As mentioned above, EC Regulation No. 889/2002 requires the carrier to anticipate a payment, in the case of injury or death of a passenger, in order to cover immediate economic needs in proportion with the suffered damage, within 15 days since the day of the damage itself. In the case of death, the advance payment will not be less than 16,000 SDR.
Obviously, EC Regulation is applicable only to those carriers that can be considered as community carriers (carriers that have their operating licence issued by the competent authority of a member state of the EU, pursuant to CEE Regulation No. 2407/92).
How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?
Italian courts interpret the jurisdictions set forth by the Montreal and Warsaw Conventions as follows:
- domicile of the carrier: it could be both the head office or the local office of the air carrier, should the latter have appointed an authorised representative in such local office (Cass Civ No. 22035/2014);
- principal place of business: it is the head office of the air carrier;
- place of business through which the contract has been made: it is the local office of the air carrier where the ticket has been bought there by the passenger; it can also be a travel agency if it is proven that it sold the tickets on the basis of an agreement with the local office of the air carrier (Cass Civ No. 13689/2006);
- place of destination: the place of final destination of the flight as agreed between the air carrier and the passenger; and
- place of residence of the passenger: it is the state where the passenger has its normal place of residence. Combined with the Italian Consumer Code, passengers, in their capacity as consumers, are entitled to bring their cases against the air carriers before the court of the place of their residency.
Furthermore, there has been a conflict of case law in the Italian courts on the interpretation of the subject articles, settled by several decisions of the Cassazione Civile (Italian Supreme Court), and, according to the latter, the above-mentioned criteria are to be considered as international jurisdictions criteria, while the internal jurisdiction (on the basis of which it is determined before which office of the court or before which court within the national territory the case should be brought) will be ruled by internal national law (Cass Civ No. 22035/2014).
Period of limitation
How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?
Italian Courts interpret article 35 of the Montreal Convention and article 29 of the Warsaw Convention, combined with article 949-ter of the Italian Navigation Code, and apply the two-year limitation as a forfeiture period. Therefore, according to article 949-ter, the Italian courts state that passengers who intend to bring a claim against the carrier should file it within two years after the arrival to the destination of the carriage; such period can not be suspended (United Division of Cass Civ No 21850/2017).
At present, with regard to the passengers’ rights arising by EC Regulation No. 261/04, there is no settled case law on this issue.
Liability of carriage
How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?
Where the contractual carrier does not perform the carriage, because the latter is performed by a third operating carrier, Italian courts, by applying the provisions set forth in the Montreal Convention, consider the operating carrier as jointly liable together with the contractual carrier before the passengers’ claims. It is understood that the operating carrier’s liability is limited to those damages that occurred during the leg of the carriage they executed.
Domestic carriage – liability for passenger injury or death
What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?
According to article 941 of the Italian Navigation Code, to article 11 of the Italian Constitution and to EC Regulation No. 889/2002, the Warsaw Convention and the Montreal Convention directly apply even to domestic carriage, therefore both the nature and the limits of air carrier’s liability, together with the main defences available for the air carrier, are similar to those applicable for international carriage. The same is applicable for time limits within which it is possible to bring an action against an air carrier for damages, including those deriving from injury or death of the passenger.
Nature of carrier liability
What is the nature of, and conditions, for an air carrier’s liability?
On the grounds of the information given above - the direct application in the domestic carriage of the Warsaw Convention and the Montreal Convention - the liability of domestic air carrier is ruled by the same laws that rule the international carriage. Therefore, the air carrier liability in domestic carriage for injuries or death of the passengers is strict as ruled by articles 17 of both the Montreal Convention and the Warsaw Convention.
Is there any limit of a carrier’s liability for personal injury or death?
For domestic carriage, the liability limits are set forth in the Montreal Convention. Therefore, the air carrier would be strictly liable up to the amount of 100,000 SDR. The passengers would still be entitled to a higher level of compensation, pursuant to article 21 of the Montreal Convention, where:
- the damage is because of the air carrier’s own negligence; or
- the damage has not only been caused by the negligence of the passenger or of a third party.
What are the main defences available to the air carrier?
In domestic air carriage, as per the international carriage, the air carrier main defence is set out in articles 19 and 20 of the Montreal Convention.
Is the air carrier’s liability for damages joint and several?
Also in the domestic carriage, as stated in question 11, the Montreal Convention with its regime of liability is applicable. Furthermore, according to article 943 of the Italian Navigation Code, the passenger is entitled to be informed by the contractual carrier of the circumstance where the actual operating carrier would be a different one. Should the contractual carrier fail to inform the passenger about such circumstance, the latter would be entitled to obtain a termination of the carriage agreement, a refund of the price paid for the ticket and compensation for the damages.
Rule for apportioning fault
What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?
According to article 20 of the Montreal Convention, as well as article 1227 of the Italian Civil Code, if the passenger’s ‘negligence has contributed to cause the damage, the compensation is reduced according to the seriousness of the negligence and the extent of the consequences arising from it. Compensation is not due for damages that the creditor (ie, the passenger) could have avoided by using ordinary diligence’.Pursuant to the above, Italian courts do not consider the air carrier liable in cases where the damage is the result of an event caused by the passenger’s lack of diligence and prudence and sense of responsibility for the sake of its immunity (Court of Milan No. 3398/2009).
Statute of limitations
What is the time within which an action against an air carrier for injury or death must be filed?
Also in domestic carriage, the two-year time limit established in article 35 of the Montreal Convention is applicable.
What are the applicable procedures to seek recovery from another party for contribution or indemnity?
In cases where the damage to the passenger was caused by a third party, the air carrier has two options:
- sue the third party in the same proceeding originally pending between the passenger and the air carrier itself in order to be held harmless by the third party; or
- sue the third party in a subsequent proceeding brought by the air carrier who lost the claim against the passenger.
What time limits apply?
The time limit depends on the contractual relationship between the air carrier and the third party.
The general limitation period for a recovery action is 10 years.
If the third party is subject to the Montreal Convention, the two-year time limit has to be considered.
If the third party is an insurer, the time limit is fixed at two years but the air carrier has to fulfil the obligations in the insurance agreement (eg, disclosure requirements).
In cases where there is no contractual relationship between the air carrier and the third party, any extra-contractual liability expires five years from the date on which the illicit fact or act caused by the third party occurred. However, this rule must receive a different consideration if the fact or act falls under the application of criminal law.
Liability for ground damage
What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?
The liability of any damages caused to persons or goods on the ground in an aircraft accident are, in principle, governed by the Rome Convention. Indeed, pursuant to article 965 of the Italian Navigation Code, the liability for injury or damage caused to persons on the ground by an aircraft is governed by the international laws that are in force in Italy.
In this regard, according to both the Italian Navigation Code and the Rome Convention, such rules are applicable only to the aircraft operator. Therefore, those rules would be applicable to the air carrier as well only in cases where the air carrier coincides with the aircraft operator, as defined under article 2, second paragraph of the Rome Convention.
In cases where the air carrier does not coincide with the aircraft operator, it would not be able to take advantage of the limitation of liability (see question 22). In such a case, the air carrier liability would be ruled by the Italian Civil Code.
Italy did not ratify the Montreal Protocol dated 23 September 1978, which amended the Rome Convention.
Nature and conditions of liability
What is the nature of, and conditions for, an air carrier’s liability for ground damage?
Should the air carrier coincide with the aircraft operator, its liability must be qualified as a strict one.
Is there any limit of carriers’ liability for ground damage?
In cases where the air carrier and the aircraft operator coincide, as per article 971 of the Italian Navigation Code, its liability would be limited to the insurance coverage limits set forth by article 7 of EC Regulation No. 785/2004. Should the air carrier not be the aircraft operator, under the Italian Civil Code, any limitation of its liability would not be applicable.
What are the main defences available to the air carrier in a claim for damage caused on the ground?
For ground damage, the operator’s liability may be totally or partially excluded by proof of:
- the sole victim’s fault;
- the circumstance that the damage is a simple consequence of the passage of the aircraft through the airspace in compliance with current traffic regulations;
- the circumstance that the damage is a direct result of an armed conflict; and
- the circumstance that the damage occurred when the aircraft operator was deprived of the use of the aircraft by an act of public authority.
Liability for unruly passengers and terrorist events
What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?
The regulations applicable for unruly passenger and terrorist events in Italy include the following:
- Tokyo Convention;
- Montreal Convention; and
- Warsaw Convention.
Nature and conditions of liability
What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?
The nature and condition of air carrier’s liability for injury or death of a passenger caused by an unruly passenger or a terrorist are those set out in the Montreal Convention.
Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?
For injury or death of a passenger, the limit of liability set in the Montreal Convention (equal to 100,000 SDR) applies.
What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?
The main defences available to the air carrier in claims for death or injury of passengers caused by an unruly passenger or a terrorist are those provided by articles 20 and 21 of the Montreal Convention.
Consumer protection and passenger rights
Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.
As a member of the European Union, Italy is subjected to the EU Regulations governing these areas, summarily:
- EC Regulation No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights;
- EC Regulation No. 1107/2006 - rights of disabled persons and persons with reduced mobility when travelling by air; and
- EC Council Regulation No. 2027/97 on air carrier liability in the event of accidents as amended by EC Regulation No. 889/2002 of the European Parliament and of the Council of 13 May 2002.
Liability of government entities providing services to carriers
What laws apply to the liability of the government entities that provide services to the air carrier?
The international applicable law providing liability of the government entities that provide services to the air carrier is the EU Regulation No. 923/2012. On the basis of such Regulation, any government body providing services to a carrier, when causing a damage to such carrier or to any third party, would be subject to Italian Civil Code compensation rule (ie, article 2043)
Nature and conditions of liability
What is the nature of, and conditions for, the government’s liability?
The responsibility of government bodies can only be of an extra-contractual nature.
Indeed, under Italian law, the public entity may be liable only in the case of an extra-contractual responsibility, owing to:
- illicit conduct; or
- illegal issued provision.
Furthermore, it will be necessary for the plaintiff to prove the existence of the psychological element, which should at least be negligence, on the public entity.
In the latter case, there is a reversal of the burden of proof, so it will be the public entity that will have to demonstrate that the latter acted with simple negligence (United Division of Cass Civ No. 500/1999).
Are there any limitations to seeking recovery from the government entity?
Responsibility for accidents
Can an air carrier be criminally responsible for an aviation accident?
Under Italian law, a legal entity such as an air carrier cannot be held responsible for a criminal act. Indeed, according to the Italian Criminal Code, only individuals may be held criminally liable for their actions.
According to Legislative Decree No. 231/2001, it may be possible for the Italian courts to apply criminal sanctions to legal entities, in the form of monetary fines, in the presence of the following legal requisites:
- the employee of the legal entity committed or attempted to commit certain criminal offences in the interest or for the advantage of the legal entity itself; and
- the criminal offence attempted or committed falls under the application of Legislative Decree No. 231/2001.
Whether Italian law considers as crimes the causing of the fall of an airplane and, more generally, any failure in the observance of the laws or regulation aimed at the safety of the navigation, such crimes do not fall under the application of Legislative Decree No. 231/2001.
Nevertheless, involuntary homicide falls under the application of this Decree, and therefore makes it possible for the court to hold the legal entity criminally responsible, when it is caused by the non-compliance of the laws on health and safety at work (Court of Genova No. 2212/2017).
Effect of proceedings
What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?
Under Italian law, a final conviction issued by the criminal court may state that, in the civil action brought by the passenger or his or her representative against the air carrier, the responsibility of the convicted subject cannot be questioned. On those grounds, the only subjects on which the civil court may exercise its discretion are the following:
- the degree of the negligence of the convicted subject;
- the potential contributory negligence of the damaged party in causing the damage; and
- the amount of compensation.
Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?
Under the Italian Criminal Procedure Code, any party that intends to claim for compensation against a subject who is accused in a criminal proceedings has the right to join the proceedings as a civil party. As such, the passenger may claim compensation for the damages directly in the criminal proceedings.
Effect of carrier's conditions of carriage and tariffs
What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?
The air carrier may regulate its contractual relationship with the passenger in the drafting of the general terms and condition of carriage. These conditions constitute the carriage agreement between the parties and, consequently, have a binding effect on both parties’ rights. Nevertheless, the air carrier, in drafting the general terms and conditions of carriage, may not arrange a regulation of its liability that is different to the ones set forth by the Montreal Convention and EC Regulation No. 261/2004, such rules being strictly mandatory.
What damages are recoverable for the personal injury of a passenger?
Under Italian law, the person who has suffered damages is entitled to be fully compensated for the damages suffered, both biological and existential. Biological damage consists of any damage to physical integrity, and existential damage is any damage to psychological integrity. Passengers who intend to claim compensation for damage resulting from an injury that occurred during air carriage have the burden of proof for the damage suffered.
With reference to the settlement of the biological claims, Italian courts apply a chart issued by the Court of Milan, which determines the entity of the compensation on the basis of:
- the age of the damaged person; and
- the percentage of temporary or permanent invalidity of the damaged person.
With reference to the settlement of the existential claims, even though, as stated in question 5, the EU Court of Justice defined as reimbursable the compensation of the non-material damages, in order to actually compensate such damages, Italian courts do not settle such damage, even though recognised by the interpretation of Montreal Convention, if the claimant fails to meet the following conditions:
- they must provide proof of the damage suffered, which should not be a mere inconvenience (United Division of Cass Civ Nn 26972-26973-26974-26975/2008; Cass Civ 14667/2015);
- they must provide proof of a faulty act or omission by the - alleged - liable party; and
- they must prove the existence of a causal link between the act or omission and the damage.
Furthermore, injured passengers have the right to claim even for the economic loss deriving from the occurred damage (eg, losses because of the inability to work).
What damages are recoverable for the death of a passenger?
Italian law gives relatives of a dead passenger the right to claim for the following damages suffered:
- non patrimonial damages - iure proprio - the sufferance caused to the relatives of the dead passenger because of the loss (Cass Civ No. 4043/2013);
- non patrimonial damages - iure hereditatis - the sufferance caused to the passenger in both:
- the case that he or she has been aware of the imminent death; and
- the case that he or she suffered death throes (United Division of Cass Civ No. 15350/2015); and
- patrimonial damages - iure proprio - such as funeral expenses, loss of earnings or loss of income (Cass Civ 10853/2012).
Accident investigation and family assistance
Who is responsible in your state for investigating aviation accidents?
Legislative Decree No. 66/1999 has been embodied in the National Agency for the Safety of Air Traffic (ANSV), which is the specific public body in charge of carrying out:
- technical inquiries on serious incidents or accidents on aircrafts; and
- study and inquiry activity in order to ensure the improvement of air traffic safety.
This public body, in accordance with EU Regulation No. 996/2010, and with the aim of impartiality and neutrality, has independence and disjunction with the civil aviation system because it submits to the Council of Ministers and not the Ministry of Transport .
Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.
On its website, the ANSV publishes its investigative relations and reports and, even though the identity of the involved individuals is kept confidential, such documentation may be used in litigations.
Relevant post-accident assistance laws
Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?
Under article 21 of EU Regulation No. 996/2010, each member state of the European Union should establish an emergency plan for aviation accidents. Each member state provides that every air carrier registered in the national territory will establish a civil aviation accident emergency plan at national level. This plan aims to provide assistance, in particular in terms of psychological support, to survivors of such events, and also to families and relatives of deceased passengers.
Are there mandatory insurance requirements for air carriers?
Under article No. 942 of the Italian Navigation Code, there is an obligation on the air carriers to enter into insurance agreements on their activity. According to the above-mentioned article, all European and international laws on insurance requirements are directly applicable in Italy. Such international laws are the following:
- EU Regulation 889/2002;
- Montreal Convention; and
- EU Regulation No. 785/2004.
The latter sets out minimum insurance requirements for air carriers and aircraft operators in respect of passengers, baggage, cargo and third parties.
This Regulation applies to air carriers and aircraft operators flying within, into, out of or over the territory of an EU member state and stipulates the following minimum insurance cover:
- 250,000 SDR per passenger;
- 1,131 SDR for baggage per passenger; and
- 19 SDR per kilogram of cargo.
Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.
There is no a specific court dedicated to civil aviation matters. Therefore, the standard rule of competence of Italian courts must be considered. Italian court structure is based on, among other things, territorial rules and on the value of the claim.
Claims of up to €5,000 are decided by a justice of the peace (JP)who is not a formal gowned judge. Claims above €5,000.01 are decided by the tribunal that has the territorial jurisdiction.
Both the judgment issued by a JP and judgment issued by tribunal can be appealed before the tribunal and before the court of appeal (which is formed by three magistrates) respectively. The competent court to decide over the appeal against the decision issued by the court of appeal is the Italian Supreme Court.
Should the JP decide a claim on an equitable basis, the competent court for the appeal would directly be the Supreme Court.
In ordinary proceedings, the plaintiff must sue the defendant at a fixed date.
Generally speaking, the defendant must file his or her statement of defence 20 days before the fixed date if the claim is under the tribunal or the court of appeal. In cases where the claim is under a JP jurisdiction, the defendant can file the statement of defence up to the first actual hearing before that magistrate.
In any case, the appeal must be brought within six months starting from the filing of the decision that the party wants to appeal, otherwise the decision becomes final, unless the winner party serves the judgment to the counterparty. In the latter case, the appeal should be brought within 30 days, otherwise the decision becomes final.
Generally speaking, in the second instance, there are two hearings (the first appearance hearing and the hearing where the party asks for the decision) before the court.
What is the nature and extent of allowable discovery/disclosure?
Under article 2,697 of the Italian Civil Code entitled ‘Burden of Proof’, the party that asserts a right in judicial proceedings must prove the facts on which the right is based. The counterparty that asserts the invalidity of such facts or claims that the right has been modified or extinguished must prove the facts on which the defence is based.
Therefore, each party has to disclose appropriate and expedient evidence to prove his or her right. The proceedings are not aimed at revealing the truth but are directed at getting the correct judgment based on the evidence offered by the parties.
The only case under which a party is obliged to disclose evidence is when such a request comes from the judge because a party proves that the evidence is only in the hands of the counterparty. If the judge orders the document’s disclosure but the requested party fails to comply, the judge is entitled to draw any conclusion that he or she sees fit from such failure (article 116, second paragraph of the Civil Proceedings Code).
Does the law of your state provide for any rules regarding preservation and spoliation of evidence?
No laws are provided for a general obligation to preserve or to prevent the spoliation of evidence. In Italy, there are specific laws that oblige the preservation of the document with regard to fiscal documents and account books, and with regard to the investigation and prevention of accidents. With reference to fiscal documents and account books, the document has to be preserved for 10 years. With reference to the investigation and prevention of accidents, this is as per Regulation (EU) No. 996/2010 of the European Parliament and of the Council of 20 October 2010 (as enforced by Legislative Decree No. 18/2013).
Therefore, generally speaking, if a party does not have in his or her possession evidence that would be useful towards winning the case, he or she would probably lose the case unless he or she can prove that the spoliation does not depend on him- or herself, and he or she can get the same goal through presumptions.
Recoverability of fees and costs
Are attorneys’ fees and litigation costs recoverable?
In Italy, each party must bear his or her own attorneys’ fees. Furthermore, the plaintiff must pay litigation costs in advance.
As per article 91 of the Italian Code of Civil Proceedings, the losing party is condemned to bear both the litigation costs and the counterparty’s attorneys’ fees, calculated on the basis of Ministerial Decree No. 55/2014.
Judgments and settlement
Pre and post-judgment Interest
Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?
In Italy, the default legal interest is payable in the amount established, year by year, by the Ministry of Treasury.
In 2018, as per the Ministerial Decree issued on 13 December 2017, the updated legal interest rate is equal to 0.3 per cent above the due amount.
The start date of the interest accrual generally is identified as the date of the notification of the judicial claim to the counterparty.
It could happen that the judge, as per the sentence he or she issues, establishes as the starting date the date of the ruling.
Finally, in cases where the claimant, before the proceedings, brings a default action against the counterparty, by a formal letter, the interest accrues from the date of this formal letter.
In cases where the parties to the proceeding are professionals and the proceeding concerns a B2B relationship, the default interest is established by Legislative Decree No. 231/2002 and is fixed at the amount of eight percentage points above the base rate.
Is court approval required for settlements?
Court approval is not required for settlements, unless the settlement agreement is entered into before the judge.
Should the claim be before a court, the parties have two options:
- they can get an out-of-court settlement agreement, under which they can close the claim and give up the proceeding without appearing before the judge in the next hearings; or
- the parties, represented by their relative attorney, can sign a settlement agreement before the judge.
What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?
If a settlement is concluded, it is only binding upon the parties who sign the settlement itself and does not affect the right to contribution or indemnity from another person or entity unless such clause is expressly drafted in the settlement agreement itself.
Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?
Under Italian law, with the aim of preventing the use of the banking and financial system for money laundering and terrorist financing, any payment carried out over the limited amount of €3,000, as set forth by article 49 of Legislative Decree 231/2007, cannot be performed in cash. The air carrier or its insurer that should carry out a payment, as outcome of a judgment or of a settlement, of an amount higher than €3,000, will have to execute it by bank transfer, cheque or any other traceable means of payment. In addition to this, the anti money-laundering legislation should be applied in any case.