7.4.1 Angonese: the loss of a chance as recoverable damage resulting from discrimination

324. Although there is an ongoing debate in Italian literature on the question which type of damage the loss of a chance concerns1, the Italian courts seem to have had no doubt that the lost chance of Angonese constituted recoverable damages. Besides having a deterrent effect, the concept of compensation for the loss of a chance builds upon an idea of proportionality. When a party is liable for the lost chance of another party, it should reasonably bear the damages following from this loss.2 When liability for the loss of a chance is established, the pecuniary value of the lost chance is to be determined by equity. As regards Italian law, Article 1226 Codice civile concerns the valutazione equitativa del danno and requires that, in case the precise value of the damage cannot be proven, the court sets a reasonable amount of damages.3 The application of Article 1226 Codice civile means that the precise amount of damages is neither measurable through arithmetic calculation nor by the use of scientific and technical instruments entrusted to a consultant and that this particularly relates to future damage and the loss of a chance.4

325. In relation to the damage suffered by Angonese, the Pretore as well as the Corte d’Appello, without referring to Article 1226 Codice civile, seek to calculate the probability of the loss of a chance. Both courts pay considerable attention to Angonese’s qualifications and the likelihood that he would have been hired should the Bank have refrained from adopting the discriminatory requirement. The Pretore arrives at a substantial amount of damages, based on a considerable future time frame in which Angonese potentially could have been hired. However, the Corte d’Appello considers the time frame applied by the Pretore to be unreasonable or disproportionate and halves the amount of damages. Although the Corte d’Appello agreed with the Pretore that there was a 50% chance of Angonese being hired5, the Corte d’Appello takes a different stance on the time frame for which the lost income should be calculated. In the view of the Corte d’Appello, the period of time for which the damages were calculated should be decreased because it is too uncertain whether Angonese would have still worked for the Bank during those future years.6 In that respect it is reasonable to mitigate the damages imposed on the Bank by the Pretore.

326. Needless to say that this consideration of the Corte d’Appello is a Paradebeispiel of the idea of proportionality stricto sensu and aims to avoid that the amount of damages goes beyond what is necessary to achieve the aim of effective judicial protection. Undoubtedly the Pretore must have started from the same idea when calculating the damages. However, the Pretore just arrived at a different conclusion as regards the period of time for which the damages should be set. Despite the fact that both Italian courts give insight into their considerations on the calculation of the pecuniary value of the lost chance in this concrete case, the divergent outcomes nonetheless are a classic example of the fact that open norms in private law – here: determining a reasonable economic value of a lost chance – can be concretised (very) differently, and that several different outcomes may be proportionate. In my view, the final outcome in Angonese complies with the right to a proportionate remedy and the standards laid down by the Court of Justice. The amount of damages rests upon a proper assessment of interests, and is neither purely nominal nor excessive.

327. In Dutch law, the loss of a chance is recognised as recoverable damage.7 Although there have not been cases yet in which a claim for liability for loss of a chance was honoured in relation to damages suffered due to discrimination, it cannot be excluded that compensation for the loss of a chance is successfully claimed in future cases in which a party lost a chance as a result of discriminatory conduct by another private party.8 In such cases, the concept of loss of a chance seems to provide for an effective, proportionate and real remedy for an infringement of the free movement of workers and the right to non-discrimination, irrespective of the particular ground of discrimination.9

328. In conclusion, acknowledging the loss of a chance as recoverable damage in relation to infringements of Article 45 TFEU contributes to the effective judicial protection of that provision. In my view, the same applies to other non-discrimination provisions in Union law, such as Article 18 TFEU, Article 56 TFEU and Article 157 TFEU.