3.2.4.3 Liability for a perdita di chance

65. Italian case law demonstrates that the claim for nullity of a bando di concorso is often combined with the claim for compensation for damages for the loss of a chance.1 Angonese successfully claimed nullity of the requirement and compensation for damages suffered due to the loss of a chance. None of the Italian courts elaborate on the exact legal ground upon which this liability is founded. Yet, it is likely that the Italian provisions on tortious acts or the provisions on pre-contractual liability apply.2 The judgment of the Corte de cassazione contains a hint as it includes a claim of the Bank that the Corte d’Appello has not sufficiently reasoned its decision concerning the Bank’s violation of Article 2043 Codice civile – i.e. the provision on tortious acts – or Article 1337 Codice civile – i.e. the provision on pre-contractual liability, the latter being less likely to apply considering the facts of the case. In relation to these claims the Corte di cassazionesimplyholds that they are “totally unfounded”, which implies that apparently the Bank’s violation of Article 45 TFEU in Italian law constitutes a tortious act.3 In that respect, both the bando di concorso as such and the discriminatory refusal to allow Angonese to participate in the competition qualify as an tortious act in the sense of Article 2043 Codice civile.4

It is beyond the scope of this study to discuss the concept of the liability for a perdita di chance as such – which in the Italian legal system is a highly discussed concept developed in case law.5 Therefore only the considerations of the Pretore and the Corte d’Appello are concisely discussed. As indicated, the Corte di Cassazione remained silent as regards this topic, because it was not requested to reconsider the Corte d’Appello’s judgment as far as this matter was concerned.

66. Angonese thus claims compensation for damages for the loss of a chance. After the Pretore determined that the bando di concorso was partially null and void, it focused on the verification of whether more elements for liability for loss of a chance can be found. These elements can be found in case law.6 Straight away, the Pretore postulates that Angonese had a 50% chance of successfully participating in the recruitment competition. Then, after – for almost three pages – praising Angonese’s qualifications7, the Pretore determined that there was indeed a 50% chance that the Bank would have hired Angonese.8

The second step consists of determining the financial value of the loss of this chance. The Pretore determines the time frame which in its view applies to the loss of this chance. This is approximately three years of employment. Ultimately, the Pretore rules that the exclusion of Angonese from the recruitment competition by the Bank results in the Bank’s liability to pay 50% of the supposed wage as well as interest which, for the loss of the chance to become employed, is considered to be lost income over the period set by the Pretore.9 Consequently, the Pretore di Bolzano condemned the Bank to pay damages in relation to the exclusion of Angonese to the competition with an amount of approximately 40.000 Euro.10

67. On the request of the Bank the Corte d’Appello reconsiders the ground for liability for loss of a chance. In rejection of the claims of the Bank, the Corte d’Appellocites a judgment of the Corte di Cassazione in which the latter clarifies that when the conduct of an employer results in the loss of a chance of an employee, the employer is liable to pay damages. These damages are founded on the non-negligible probability of the result that is favourable for the employee (a non trascurabile probabilità favorevole). That would be the situation in which the employer would not have shown any conduct resulting in the loss of this chance. For the presumption of this non-negligible probability it is sufficient that there is a reasonable certainty of this probability. Subsequently – the liability being established – the level of the damages can be determined by the application of the parameter of the supposed wage as well as the percentage of the probability of a result favourable for the employee. This percentage is by no means used in the determination of the liability itself, for which the existence of a reasonably certain probability suffices.11 In light of the foregoing findings and taking account of concrete data concerning the candidates allowed to participate in the recruitment competition as well as of Angonese’s “extraordinary” qualifications, the Corte d’Appello considers that the Pretore had correctly determined the liability for loss of a chance and affirms the Pretore’s conclusion that there was a 50% chance that Angonese would have been employed.12

Notwithstanding the establishment of the liability for loss of a chance, the Corte d’Appello applies the criterio probabilistico and takes an equitativamente approssimato to determine the damage suffered by Angonese and qualifying for compensation.13 It concludes that the amount set by the Pretore should be reduced by all amounts relating to future damage, because there is no proof that Angonese could not have found another – perhaps more lucrative – job.14 In consequence, the Corte d’Appello partially accepts the appeal of the Bank and roughly halves the amount of damages that was set by the Pretore.15