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The Italian Supreme Court, with judgment no. 1493/12, has ruled on an extremely interesting question, in relation which the Italian Courts have handed down contrasting judgments in the last few years.

The question is whether – in the event that the victim of a road accident is an immigrant – the relatives are entitled to the award of damages.

Such question may appear, at first glance, to be banal, but in reality there are some critical issues still to be dealt with at legislative level.

From a substantive law point of view, it would appear to be obvious that damages should be awarded regardless of the victim’s nationality, but this certainty is put in doubt by the provision set forth in article 16 of the Preliminary Provisions of the Italian Civil Code, according to which: “Foreigners – including foreign legal persons – are entitled to the same rights accorded to Italian citizens, provided that reciprocal rights are accorded in the foreigner’s country of origin and without prejudice to the provisions set forth in special laws.

Until a few years ago, the Italian Supreme Court (cfr. Italian Supreme Court judgment no. 1681/93) had resolved the question by applying the principle of reciprocity, on the basis of which a foreigner who wanted to commence an action for damages in relation to a road accident had to prove that, under the law of his or her country of origin, Italian citizens had, in similar cases, an unfettered right to be awarded damages and to be insured (failing which they were not entitled to the award of damages).

The Italian Supreme Court judges have, however, in the last few years (cfr., for example, judgment no. 450/11, which has been confirmed by the aforementioned judgment) interpreted article 16 of the Preliminary Provisions of the Italian Civil Code in the sense that the principle of reciprocity only applies in those situations in which the rights for which damages are requested are not fundamental.

In the event that, on the contrary, unalienable rights such as the right to life or health are violated, article 16 is not applicable, thus leaving the plaintiffs to request damages, regardless of whether not they are Italian, EU or non-EU citizens.

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