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As all lawyers know, one must – before asking whether or not there a case has merit – check preliminarily whether an action can be brought or whether it has already become time-barred.

Let’s take the example of tortious liability provided for under article 2947 of the Italian Civil Code (hereafter c.c.), which provides that an action for damages becomes time-barred after five years have passed from when the tort in question was committed.

Such provision must be read in conjunction with article 2935 c.c., which provides that the statute of limitations starts running from the date in which the right could be asserted.

What is, therefore, the date from which the statute of limitations starts to run?

In order that we may answer this question, we must look at judgment no. 26188/11 handed down by the Italian Supreme Court, concerning an action brought by a consumer – following the well-known decision no. 8546/00 issued by the Italian Competition Authority – against his insurance company for the restitution of amounts paid, by way of insurance premiums, in excess of the amount that was actually due. The Italian Competition Authority had inflicted fines on numerous insurance companies for the infringement of Italian anti-trust provisions on account of the fact that such insurance company had taken part in an unlawful agreement whose purpose was that of increasing the insurance premiums to be paid by customers.

The Court of Appeal had rejected the plaintiff’s claim for damages since it was of the opinion that the present case concerned tortious liability (in respect of which the statute of limitations applies once five years have passed).

As regards the precise date from which the statute of limitations starts to run, the appeal judges were of the opinion that this coincided with the date on which the payments were made.

The Supreme Court reaffirmed the point that the appeal judges’ ruling was mistaken on account of the fact that the ratio of the statute of limitations is that of punishing the inertia of those who decide not to commence proceedings even though they aware of the fact that their rights have been infringed.

In the case at hand, the insured party was not certainly not aware, when he paid the insurance premiums, of the fact that such premiums were not due since he could not imagine that there was an agreement between companies aimed at artificially increasing premiums. It followed therefrom that there was no legal basis for punishing the plaintiff’s blameless inertia.

The Supreme Court judges reaffirmed, therefore, the point of law according to which …article 2947 c.c. must be read and interpreted in the light of article 2935 c.c.. It follows therefrom that the statute of limitations starts to run from when a right can be enforced. In order to be able to exercise the right to damages, it is essential that the right-holder is given adequate notice not only of the existence of an infringement, but also of the fact that it harms him, in the absence of which one cannot see how his conduct could be qualified as inertia giving rise to the application of the statute of limitations. Article 2947 c.c. must be interpreted in the sense that the statute of limitations starts to run not from when the defendant commits a tort or from when a third party harms someone else’s rights, but rather from when the tort and the damage arising therefrom become outwardly apparent and thus can be perceived and recognized by others (Italian Supreme Court judgment no. 5913 dated May 9, 2000; Italian Supreme Court judgment no. 9927 dated July 28, 2000; Italian Supreme Court judgment no. 2645 dated February 21, 2003)”.

It is evident from the above that, in the case at hand, the statute of limitations started to run from the moment in which AGCM ruled that the Insurance Companies’ conduct was unlawful.

Unfortunately, the Supreme Court judges could not deal with the issue of contractual or tortious liability since the notice of appeal did not address this issue.

It would seem, therefore, that we are dealing, in the case at hand, with contractual and not with tortious liability, which would have led to the action being time-barred after 10 years had passed.

L’immagine del post è stata realizzata da Wild0ne, rilasciata con licenza cc.

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