3.2.3 A bird’s-eye view of the Italian rulings in the case

48. Angonese claimed the nullity of the clause adopting the requirement, and compensation for the damages he suffered as a result of the loss of a chance (perdita di chance) due to the discriminatory requirement.1

The Pretore di Bolzano ruled that Angonese’s claims were founded. Since the Court of Justice had determined the Bank’s violation of Article 45 TFEU, the Pretore di Bolzano derived from the Court’s judgment that the clause in the bando di concorso was null and void.2 Union law is considered as a norma imperativa (mandatory law) and conflict with such law results in nullity of the particular juridical act.3 Although the Pretore ruled that Angonese, for being Italian, could not directly invoke Article 45 TFEU4 the Pretore sustained Angonese’s claim for nullity of the requirement by relying on domestic non-discrimination provisions and the buone fede in the light of Article 45 TFEU.5 This complies with the Italian Constitution, which prohibits reverse discrimination of its own citizens in relation to cases falling within the scope of Union law.6 That is, if a citizen of another Member State is protected by Union law, an Italian citizen is likewise protected.7 Further, applying the doctrine of the loss of a chance, the Pretore held the Bank liable for excluding Angonese from the recruitment competition for the reasons that he was not in the possession of the patentino. This liability resulted in the obligation to pay compensatory damages.8 Although the judgment does not include the legal basis of this liability, it is presumed that the Italian tortious act or any equivalent thereof form the legal foundation of the liability.

49. The Bank brought an appeal before the Corte d’Appello di Trento.9 The Bank claims amongst others that the case shows no connection to Union law, because Angonese is an Italian citizen and therefore cannot invoke the Treaty provisions on the free movement of persons against other Italian parties.10 Further, according to the Bank, the amount of damages that it has to pay on the basis of liability for a perdita di chance is extraordinarily high. Angonese claims that the scope of applicability of Article 45 TFEU should – in this particular case – be understood as applying also to Italian citizens, who, like citizens of other Member States, find themselves confronted with the requirement to possess the patentino and who do not have the possibility to obtain the certificate because it is issued only by the authority in Bolzano.11

The Corte d’Appello concludes that the Bank’s appeal is partially founded. It finds that the amount of the damages for the loss of a chance set by the Pretore is too high indeed and roughly halves the amount payable.12 However, with regard to the connection of the case with Union law, the Corte d’Appello demonstrates with a series of arguments that Article 45 TFEU can directly be invoked by Angonese againstthe Bank.13 The Corte d’Appello confirms the Pretore’s finding that the requirement’s conflict with Article 45 TFEU results in nullity under Article 1418, 1419 and 1421 of the Codice civile.

50. Despite the damages being – roughly – halved, the Bank appealed the case before the Corte di Cassazione. The Bank was still not convinced that the case was connected to Union law. Further, the Bank claimed that Angonese, due to being a resident of the province of Bolzano, and only occasionally and temporarily living in Vienna for the purpose of studying14, had been perfectly able to obtain the patentino. Therefore, according to the Bank, Angonese could not be equated with foreign workers and, consequently, not invoke Article 45 TFEU to challenge the requirement in the bando di concorso. Also, the Bank challenged the idea of the Corte d’Appello (and the Pretore) that the clause in the bando di concorso is null and void in relation to foreign citizens non-resident in Italy and that the nullity of the clause also operates in relation to Italian citizens.15

The Corte di Cassazione deems all of the Bank’s grounds unfounded. With regard to the connection to Union law, the Corte de Cassazione refers to the judgments of the Pretore, the Court of Justice and the Corte d’Appello in which the connection to Union law – the fattore di collegamento di dirritto comunitare – has become crystal clear. According to the concrete content of the case, the Corte di Cassazione draws an overview of five essential elements16 of the Court’s judgment, to which elements the Corte di Cassazione repeatedly refers. Further, the Corte di Cassazione brings to mind that the Court of Justice ruled that a requirement such as the one imposed by the Bank is precluded by Article 45 TFEU since it renders difficult, if not impossible, for aspirant-employees non-residents of the province of Bolzano to access the competition procedure. In addition, the clause puts citizens of another Member State at a disadvantage. According to the Corte d’Appello the position of citizens of another Member State not resident in the province of Bolzano can be equated with citizens of Italy who are, for instance for reasons of study or work, (temporarily) resident in another Member State and therefore experience the same obstacles. This is what has happened to Angonese. Given these considerations, the Corte diCassazione concludes that the clause in question, which conflicts with mandatory Union law, is affected by absolute nullity and therefore does not produce any effect.17 According to the principles in national law, this nullity can be invoked by anyone who has an interest in doing so. Beyond all doubt Angonese has an interest in invoking the nullity. The so-called relative nullity can, according to law of national origin, operate only in cases specifically prescribed by the law. In this case, however, there is no provision which sees to this possibility, thus absolute nullity applies. Since the Bank did not raise any claims against the liability to pay damages for the loss of a chance, the Corte di Cassazione does not make any reference to this matter either.