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The Italian Constitutional Court, with its judgment no. 75 dated March 30, 2012, has declared article 15 of Legislative Decree No. 111 dated March 17, 1995 unconstitutional insofar as it imposes limitations on the personal damages that may be awarded for all-inclusive trips provided for under the International Convention on travel contracts (CCVs) executed in Brussels on April 23 1970 and ratified by Law no. 1084 dated December 27, 1977.

The Constitutional Court judges have held that this provision had been adopted without observing the guiding principles and criteria provided for under the Law No. 146/94 which delegated the Italian government to introduce legislation implementing Directive 90/314/EEC.

The issue of constitutional legitimacy had been raised by the Court of Verona, before which an action had been brought for the award of damages for non-economic losses caused during an all-inclusive trip.

The defendant had raised the defense of a limitation on damages (i.e. 50,000 gold-francs, which amounted to roughly € 313,500.00) provided for under the aforementioned Brussels Convention.

The Constitutional Court held, in relation thereto, that the limitation on damages imposed by Law 146/94 solely referred to those situations in which personal losses were not suffered by the plaintiff, with the result that the provision set forth in article 15 of Legislative Decree exceeded the mandate that had been given to the Italian Government by Law No. 146/94.

Article 24, letter b) of the aforementioned Legislative Decree provides that the award of damages for losses other than those that are personal arising from a breach of contract or the failure to properly perform contractual obligations shall be admitted within the limits provided for under Law No. 1084 dated December 27, 1977.

There is, instead, no provision governing the award of damages for personal loss, as a result of which the Latin proverb si lex voluit dixit (the law on any given matter must be specifically stated) will apply in the case at hand.

From a general point of view, moreover, the Constitutional Court has ruled that, whereas the Brussels Convention governs travel contracts, the organization thereof and the performing of travel agency activities, Law 146/94 and Legislative Decree 111/95 deal with tourist travel contracts (i.e. a different type of contract which justifies a different type of legislation being applied thereto).

The Constitutional Court held, therefore, that the purpose for which the aforementioned legislation is applied is that of protecting consumers’ rights, so that the limit indicated by article 24 letter b) of Law 146/94 on damages for non-personal losses must be considered to be an exceptional provision which cannot be extended by the courts to other cases.

The judgment handed down in the case at hand is of considerable interest since it clarifies in a definitive manner that limitations placed on the award of damages for personal loss suffered during a trip are inadmissible.

Such solution is, moreover, in compliance with the needs and expectations that a modern legal system must satisfy since there are rights which must be considered fundamental and intangible (such as the right to health and to life), regardless of the situation in which such rights are violated (it would, in fact, be difficult to justify from a constitutional point of view the disparity of treatment between an accident which happens in a city and one that takes place in an all-inclusive trip).

 

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