General aspects

The attention to issues related to fundamental rights of the individual does not end with the discussion of the most distinctly “personal” ones. In fact, it extends to the protection of economic interests and, more generally, to the protection of corporate assets of the individual as means for his realization. In this perspective, the professional activity of the firm also caters to the area of ​​civil liability, contractual and tort, field that is dealt with by both judiciary and extra judiciary advice and assistance. Within this area, is of particular importance the expertise of the firm in the field of Government Liability for crimes committed against individuals, especially in light of the case law which has acknowledged the refundability of legitimate interests (see Judgment n. 500 of July 22nd 1999 of the United Sessions of the Supreme Court of Cassation). In this context, the firm has always undertaken an active commitment – in some ways even innovative – in the protection of individuals before the public administration, in full accordance to the activity aimed at the promotion and protection of fundamental rights.

Mobbing

Within the field of damages, the firm pays particular attention to the phenomenon of mobbing and the various problems associated to it. The term mobbing (from the English verb to mob: attack) refers to any improper conduct that takes place, in particular, through behaviours, words, actions, gestures or writings able to cause offense to an individual’s personality and such as to endanger his or her working position or to degrade his or her working environment. The potential legal consequences to which the behaviours giving rise to mobbing qualify are both criminal and civil. Under the civil aspect it is possible to undertake legal action to obtain the cessation of the conduct deemed detrimental, as well as to seek compensation for the damage suffered in accordance with article 2087 of the civil code, which requires the employer to protect the psychophysical integrity of its employees, as well as in accordance with article 32 of the Constitution, which protects health (in its wider interpretation encompassing both mental and physical health) as a fundamental right of the individual, and finally, in accordance with article 2043 of the civil code. In the case of mobbing, tort liability can also encompass the concept of existential damage. Still within the field of civil law, it is important to recall a series of interesting decisions of the Supreme Court of Cassation (n. 475/1999, n. 8267/97, n. 1307/00, n. 314/99), in which it is observed that only rarely the abusive behaviour of an employer toward his employees is defined as mobbing. Therefore, despite the absence of a specific discipline of the phenomenon discussed, the law in force still offers protection to the victims. To this effect it is worth recalling judgment n. 1765, issued by the first instance Tribunal of Rome on January 17th 2003. The case, defended by the firm, dealt with the mobbing suffered by a researcher in the field of pathology at the Catholic University of Rome who denounced many diagnostic errors perpetrated over the years by his superior, the Director of the Institute of pathology of the aforementioned university. In granting the application for compensation filed by the firm to protect the interests of its “mobbed” client, the Tribunal of Rome condemned the Catholic University to the payment, in favour of the former, of a total sum of € 212,000,00 for damages due to violation of personal identity, damages for loss of chances and damages for the suspension of emoluments.

Moreover, as already noted, mobbing also has an independent criminal dimension and it is therefore possible to denounce those responsible for ill-treatment or for domestic violence, since criminal responsibility is always individual. However, it should be emphasised that existing criminal law does not contain a provision that expressly sanctions the behaviour of the employer in the case of moral harassment or aggression perpetrated by the same workplace. By reason of this legislative gap, the protection of the subject “mobbed” within the criminal law is hardly practicable and, in any case, subject to the hypothesis of an actual impairment of physical or mental integrity of the former. In practice, therefore, this happens only when the elements of personal injury are integrated, offense for which there is liability, both if caused intentionally or as a result of negligence. On the subject were presented five projects of Law, currently before the Parliament. For  the future it is desirable that the aforementioned legislative gaps be filled and that any abusive behaviour held in the workplace, regardless of its consequence, be sanctioned.

Compound interests

Another field that interests the firm is that of the compensation for compound interests, that is, for the capitalisation of due interests. The disfavour of the legislature towards said capitalisation has brought it to exclude the latter in principle, with the exclusion of the application of the “contrary uses” set forth by article 1283 of the civil code, to be interpreted as normative uses.

It was widely debated over the years whether it should or shouldn’t be possible to include among the normative uses the “standard bank norms”, drafted by the Italian Banking Association (IBA) and, in particular, the clauses relating to the production of compound interest, as they are contained in the banking contracts. On this point, with judgment n. 2593 of  February 20th 2003 and judgment n. 2195 of November 4th 2004, the Supreme Court of Cassation has reversed a jurisprudence that seemed to have consolidated over the years by denying the legislative nature of these banking clauses that if included in a contract to open a bank account, must be regarded as having suffered irremediable nullity. Because of that case-law, the right of individuals to recover the huge sums paid to the banks may currently be considered as guaranteed. This situation makes the admission by courts of the claims for the reimbursement of sums unduly paid by individuals to banking institutions over the past years almost automatic. In this regard, it should be emphasised that most of the lawsuits filed by private individuals in the field of compound interest were defined with judgments favourable to them. Furthermore, due to the above mentioned judgment of the Supreme Court (n. 2593/03) the mechanism of compound interests found logical and consequent application also with reference to another kind of contract: the mortgage. In particular, it is not possible to combine default interests with the interest due on the amounts granted as mortgage. Therefore, the right to the recovery of the compound interest paid to banks also exists in relation to the latter type of contract. This provides private individuals with a number of opportunities that allow them not only to get back what unduly paid to banking institutions, but also to be recognised a right so far denied to them.

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