Italian Supreme Court Research Articles

Res judicata and consumer protection in the EU: the dialogue between the Courts (and the legislator)

The case law of the European Court of Justice (CJEU), despite confirming in theory the importance of res judicata, has regularly affirmed the need to overcome stability of national judges’ opinions formally qualified as final if that is needed to ensure effective consumers protection. Against this scenario, the Italian Supreme Court (Cass., sez. un. 6 April 2023, n. 9479), seems to have initiated a dialogue with the CJEU, mainly aimed at giving actuation of the principles enacted by the European Court but nevertheless with some apparent revindications of autonomy. The variety of solutions adopted by national judges and the creative effort of the Italian Supreme Court seem to confirm that an intervention by European or national legislators could be required at this point on the matter.

Another Italian Supreme Court Decision on the “Beneficial Ownership” Concept for the Purposes of the EU Parent-Subsidiary Directive (2011/96)

In this note, the authors discuss a recent decision of the Italian Supreme Court, which introduced a new “beneficial ownership” condition, allegedly derived from case law of the Court of Justice of the European Union, as a condition for the application of the EU Parent-Subsidiary Directive (2011/96).

Persuasive Power of Implicit Communication: Presuppositions in Italian Lawyers Pleadings

Recent research on the persuasive and manipulative power of linguistic implicit communication highlights how implicitly conveyed content is less likely to be challenged or even questioned by addressees (cf. e.g. Lombardi Vallauri/Cominetti/Masia 2022 and references therein). The present contribution focuses on the use of linguistic implicit strategies, such as presuppositions triggered by definite descriptions or by additive focus adverbs, within the traditionally understudied area of Italian counsel proceedings, i.e. court proceedings written by the defence (cf. e.g. Gualdo-Clemenzi 2021; Visconti 2023). By employing the recently created AttiChiari corpus (www.attichiari.it), which collects counsel documents relating to proceedings both by the Italian Supreme Court (Corte di Cassazione) and by geographically diversified Italian courts, a set of examples is discussed, in which implicit linguistic devices are used to insert elements in the case that are thus potentially subtracted from rebuttal.

Beyond the distance between juridic and scientific decision-making process: An evidence-based prediction algorithm for professional liability assessment in healthcare-associated infections

BackgroundHAIs (Healthcare-Acquired-Infections) have been recently the subject of judgment n. 6386 pronounced on 3rd March 2023 by the Italian Supreme Court. This sentence provided three criteria to determine whether a health facility is responsible for the patient contracting a nosocomial infection, i.e. time criterion, topographical criterion and clinical criterion. Accordingly, the healthcare facility is obliged to prove the fulfillment of a series of preventive hygiene measures specifically detailed by the legislator. Herein, the positive predictive value of these criteria (“juridic criteria”) in the identification of professional liability for nosocomial infections was evaluated in comparison with clinical criteria reviewed by Infectious Disease specialists (“Infectious-Disease criteria”, i.e. presence of a Multidrug Resistant Organism (MDRO); development of surgical site infection; inadequate antibiotic therapy; inadequate disinfection). MethodsTwo retrospective cohorts were compared from the Portal of Telematic Services of the Ministry of Justice; 51 patients were extrapolated from Italian judgments concerning claims for Gram-negative nosocomial infections in the three-year period 2020–2022. On the other side, from the electronic database of University Hospital of Bari we extracted 349 patients affected by Gram-negative infections in the same timespan. Both “juridic” criteria and “Infectious-Disease” criteria were then applied to the full cohort after stratification for cohort of origin and after stratification for nosocomial or non-nosocomial infections. Predictive value of criteria was evaluated through receiver operating characteristic (ROC) curves and area under the curve (AUC). ResultsOverall, the incidence of definite nosocomial infections (according to final judgement or clinical records discharge letter) was 84 % in juridic cohort and 46 % in “real-world” series.Data suggested that the presence of all three juridic criteria [ROC AUC = 0.944 (95%CI = 0.924–0.963)] or the four clinical criteria [ROC AUC = 0.948 (95%CI = 0.928–0.969)] predicted well a case of nosocomial infection with professional liability.Moreover, by summarizing both criteria in a single classification system, the generated ROC curve (was the one with the highest AUC [0.9488 (95%CI = 0.928–0.969)].Accordingly, further tests were performed, evaluating the predictive value of one juridic criterium plus at one of more Infectious-Disease criteria. Interestingly, the ROCs curves demonstrated that the presence of at least 1 juridic criteria plus at least 2 Infectious Disease criteria reached a predictive value comparable to 2 or 3 juridic criteria. ConclusionsThe results highlight the efficiency of new criteria laid down in the judgment of the Italian Supreme Court to attribute liability for nosocomial infection despite the disputed distance between juridic and scientific decision-making process. In addition, the use of a combined score combining “juridic” and “Infectious-Disease” criteria provides a high-quality tool to be used by technical consultants to make up for lack of clinical documentation by passing judgments concerning litigation about professional liability in case of nosocomial infections. This sheds light on the possibility to face worldwide judicial inquiries with scientific rigor.

Telemedicine in Italy: Healthcare authorization profiles in the modern medico-legal reading.

The ruling n. 38485, 20 June 2019, of the Italian Supreme Court, III criminal section, addressed by the perspective of the law the very sensitive and new issue of telemedicine. This commentary deals with the issue of authorization of telemedicine activities by the health authority, starting from the Italian Court of Criminal Cassation, III section, decision n. 38485/2019. The case law explored the authorization of a health point, which carries out telemedicine services. Starting from the perspective discussed by Italian health regulations, the paper examines how the health act could be defined, with the possibilities offered by telecommunications, and how it now relates legally to the physical place where it takes place. Even if telemedicine opens the way to virtual spaces of health practice, the Ministry of Health Italian Guidelines pose functional and logistical issues to guarantee users' safety and health care system accountability. Then, functional requirements for health legitimate practice, and their continuous monitoring, together with the responsibilities of the service centers, health professionals and health facilities, are discussed. The questioning of States' health law, in a broad health system such as that of the Europe, characterized by autonomous health regulations, is extremely important for cross-border health policy with telemedicine, as overall regulatory compliance in health care is the ground criterion for risk prevention and patient safety, to be properly verified.

A research on the Italian fiscal shell companies turnover

Purpose The purpose of this paper is to study the turnover of Italian shell companies (SCs)/missing traders used for tax crimes, a predicate offence of money laundering. This research could be useful for Italian obliged entities to the Anti-Money Laundering Law to detect and report SCs, as soon as possible, to the Financial Intelligence Unit for Italy. Design/methodology/approach The author uses a sample of 32 SCs that are present in the Third Penal Section of the Italian Supreme Court in the period 2018–2020, involved in tax crimes and that have presented their balance sheets for two or more years. For SCs, the author computes the averages for: the turnover growth rate from first and the maximum turnover; the years between these two values; and the years in which SCs are active. Moreover, the author verifies if SCs are similar in terms of turnover by studying the relationship between the turnover growth rate and the first turnover and the reduction of turnover standard deviations. Findings SCs growth is very high and they reach, on average, their peak in less than three years; SCs are active, on average, for about four years; eventually, SCs exhibit a convergence process in turnover levels. Originality/value To the best of the author’s knowledge, there are no studies that analyse the SC turnover.

Supreme Court Rules on Participation Exemption for Cross-Border Capital Gains

In this note, the authors comment on Italian Supreme Court decision No. 21261, issued on 19 July 2023, which ruled in favour of a French company, stating that it can benefit from the favourable Italian participation exemption regime in respect of Italian-source capital gains based on the EU fundamental freedoms. In this regard, the Italian 2024 Budget law provides for a substantial reform of the Italian domestic law provision on the taxation of Italian-sourced capital gains realized by EU shareholders effective 1 January 2024.

Are recent judgments of the Italian Supreme Court of Cassation on healthcare-associated infections a real step toward a better quality of care?

Are recent judgments of the Italian Supreme Court of Cassation on healthcare-associated infections a real step toward a better quality of care?

Court of Cassation, Sec. II, 17 February 2023, No. 5073: foreign discretionary trusts and protection of forced heirs in Italy

Abstract The judgment under comment contains some valuable statements that may now be considered as milestones in the matter of trusts in the Italian legal system. First, the Italian Supreme Court held that a discretionary family trust which allegedly impairs the portion reserved for the forced heirs is valid and recognisable under the Hague Convention on trusts and that the only remedy available to the forced heirs is an action for reduction (“azione di riduzione”, clawback action). Although the subject matter of the dispute was not the reduction of transfers in trust, the Court also provides guidance as to who is the plaintiff and who is the defendant in an action for reduction and as to other conditions for the action. However, there are still some open questions concerning the jurisdiction and enforcement of judgments in legal systems that provide for the so-called firewall provisions.

Recognition of a Danish Monetary Penalty in Employment Matters and Public Policy

Abstract The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.

The Italian Supreme Court and the European ne bis in idem Principle: A Correct Decision Worthy of Some Criticism

Abstract The judgment gives the opportunity to focus on the ne bis in idem principle as established at the European Union level. Accordingly, after an analysis of the facts of the case and of the judgment of the Italian Supreme Court, some inquiries on the nature of the principle will pave the way for a critical assessment of the decision’s legal reasoning, notwithstanding the correctness of the final outcome.

Taming the Italian ‘Trojan horse’: the a non domino sales of cultural objects

Abstract For a long time, scholars have argued that Article 1153 of the Italian Civil Code, regulating the good faith purchase of goods, creates a ‘congenial place’ for buying stolen cultural objects. What is an Italian domestic concern becomes international in international cases where Italian law is found to be applicable. Consequently, both scholarship and case law have looked into the problem and questioned the applicability of the article to cultural objects. This Contribution explores the contours of the norm, explains how it risks playing the role of the ‘Trojan horse’, and then shows why it was essential for the Italian Supreme Court to intervene. In deciding on a case concerning the ownership rights of Peruvian and Chilean cultural property sold a non domino and located in Italy, the Italian Supreme Court upheld the ruling of the lower Court and applied the principles of international public order derived from cultural conventions. Where the application of Italian law, specifically of Article 1153 of the Italian Civil Code was necessary, the Supreme Court strengthened the article's constitutive element of good faith by making hermeneutical use of Article 4 of the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects. The resulting good faith requires a higher level of care on the art-buyer side, a standard that changes depending on the character of the party concerned. Ultimately the Contribution points to the importance of the choice that the Supreme Court made to identify a dynamic bonam fidem to cope with the problems posed by Article 1153 of the Italian Civil Code.

Cannabis regulatory system in European Union countries, forensic concept of "doping dose" and medico-legal implications.

Cannabis is the most widely used illicit psychoactive substance in the world. In recent years, in many European Union countries, there has been a decriminalisation of the use and personal possession of cannabis for recreational purposes. There has been a spread of medical cannabis, as well as marketing of cannabis products at low concentrations of delta-9-tetrahydrocannabinol (Delta-9-THC), the major chemical to which cannabis owes its psychotropic effect. The percentage limit of this substance, only recently set by the European Court of Justice, must be distinguished from the "doping dose" of Delta-9-THC, namely, the dose which causes psychotropic effect in the consumer. Our study analyses and summarises the regulations in the countries of the European Union on the penalisation of recreational cannabis, the legalisation of medical cannabis and limits on percentage of THC imposed locally. Based on the analysis of a recent judgment of the Italian Supreme Court of Cassation, we discuss the importance of the role of the forensic toxicologist in the scientific definition of "doping dose". The distinction between the doping dose of THC and the percentage of THC contained in the marketed cannabis product is vital when establishing fair punishment in the event of a crime.

Just a Brick in the Wall: Why Italy Is Violating Council Directive 2008/7/EC in the Pending Ente Cambiano Case

In this article, the author discusses the request by the Italian Supreme Court for a preliminary ruling from the ECJ regarding the compatibility of the 2016 Italian legislation reforming the governance and regulation of cooperative banks with the EU Capital Duty Directive (2008/7). In particular, that legislation imposes a levy on cooperative banks that avoid a requirement to join a cooperative banking group by contributing their business to a joint-stock company that carries out the banking activity. The author argues that the legislation violates the prohibition against Member States levying indirect taxes on capital contributions contained in article 5 of the Capital Duty Directive (2008/7).

Italian Supreme Court provides guidance on parody exception under copyright and trade mark law

Abstract In a decision related to the non-authorized use of the character of Zorro, the Italian Supreme Court analysed the protectability of fictional characters and the parody exception under copyright and trade mark law.

Is Healthcare Responsibility in Patients' Suicide Provable Beyond all Reasonable Doubt? An Analysis of Preventing Strategies and Medical Liability Through a Case Series.

As a result of the duty of care, the healthcare professional has an obligation of surveillance towards the patients that are under their treatment. According to that principle, the Italian Criminal Supreme Court declared a guilty sentence in many cases of psychiatric patients' suicide, recognizing the criminal liability of the healthcare personnel. This is true not only for suicides occurred inside the hospital, but also for the suicide of psychiatric outpatients. Only in a few cases, the Italian Supreme Court acquitted the healthcare personnel. This happened when it was recognized that the suicide event was unavoidable. Despite the fact that suicide risk is often unpredictable, this does not exclude medical liability. In this work we examine the judicial aspects of five cases of suicide of psychiatric patients, considering whether different preventive strategies could have been effective in preventing the suicide event. This work aims to understand whether the suicide of psychiatric patient is effectively preventable and - referring to healthcare responsibility under penal judgment - if that could be proven beyond all reasonable doubt.

기후난민의 인권 보호 — 강제송환금지원칙을 중심으로 —

The global community is facing extreme weather events due to climate change and environmental degradation. There are alarming reports that the number of environmentally displaced persons will increase exponentially. However, there is no internationally agreed terminology or definition regarding people who have left their homes due to environmental reasons. There are differing opinions regarding whether these people are persecuted, and thus can be entitled to a refugee status under the 1951 Refugee Convention. Despite the controversy, international agencies including the UN have proposed ways to protect people displaced from their homes due to environmental reasons via international refugee law and international human rights law. In particular, in 2020, the UN Human Rights Committee in Ioane Teitiota v. New Zealand case adopted the view that people must not be sent back to countries where there is a real risk of irreparable harm to their right to life upon return to their home countries, including torture, ill-treatment and other serious human rights violations, which will trigger the the obligation of non-refoulement on States. This decision is hailed as a landmark decision that opens up the road to protect people whose life is threatened due to climate change. Although UNHRC’s decision is not binding in nature, it has indeed influenced courts in other countries including the Italian Supreme Court and Bordeaux Court of Appeals. Climate change and environmental crisis is no longer a localized issue, and is happening simultaneously all around the world. Korea is no exception. Despite the fact that Korea is also a signatory to the Paris Agreement, 1951 Refugee Convention and the International Covenant on Civil and Political Rights, there have been little discussion on this topic. The UN Human Rights Council has recently recognized that having a clean, healthy and sustainable environment is a human right. Against this backdrop, Korea, as a responsible member of the international community that upholds human rights must start drawing up policies to accommodate environmentally displaced persons.

The Lautsi Legacy: A New Judgment on the Crucifix in Classrooms and the Multiculturalist Turn on Freedom of/from Religion in Italy

The article offers a socio-legal analysis of the recent case on freedom of/from religion in Italy, the Coppoli judgment of the Italian Supreme Court, which grants public schools the autonomy to manage religious symbols. The new ruling is discussed in the shadow of the Lautsi case, examining the shift from the discourse of “passive religious symbol” to the framework of “respect of different sensibilities” in pluralistic classrooms. In doing that, first, we provide a sociological framework for the study of “passive religious symbols” from a multiculturalist and religious freedom perspective. Second, the Coppoli case is contextualized within political, normative and judicial Italian contexts following the Lautsi jurisprudence. Third, we revise the model of “secularism as a method of dialogue” considered by the judges as important in claiming individual freedoms of/from religion in the multicultural classroom. The final part of the article provides a discussion and critical considerations about the Coppoli case, problematizing the future challenges of managing religious diversity in Italian public schools. We argue that the dynamic of freedom of/from religion’s jurisprudence in the Coppoli case endorses an additive model of accommodating diverse cultural and religious identities in public schools.

Key Decision of the Italian Supreme Court on the Relationship between the Concepts of Beneficial Ownership and Abuse of Tax Treaties

In this article, the authors examine the implications of Decision No. 17746 of 22 June 2021 of the Italian Supreme Court of Cassation regarding “beneficial ownership” and its interaction with abuse of tax treaties in the context of royalty payments, as well as the allocation of the burden of proof upon the withholding agent.

The criminal liability of the medical team considering the recent orientation of the Italian Court of Cassation

This article aims to analyze the thematic of medical team liability considering the recent Italian Supreme Court case-law, highlighting the various problems linked to the identification of the responsibility of each member of the team. The participation of several subjects in the execution of medical treatment makes the question of criminal liability very complex, especially when it comes to inauspicious events, such as injuries or death, occurring during medical treatment. The question concerns the exact identification of the duty of care and vigilance of the medical team and whether this duty is in line with the principle of individual criminal responsibility guaranteed by Article 27 of the Italian Constitution. In this regard, the case-law has elaborated the so-called “principle of reasonable confidence”, according to which the division of labour that belongs to each member should involve a delimitation of his responsibility, limited only to what is within his competence, except in case of the person who organizes, directs, and controls the team. Precisely, based on this principle, the Italian Supreme Court in 2018 reasserted that in the medical team is necessary to identify the role played by each member, thus avoiding resorting to objective responsibility.