Disapplication of Austrian Law Denying Compensation for Bereavement Damages: A Judgment by Italian Supreme Court on the Notion of ‘Public Policy’

Abstract:

This paper addresses the application of Article 4 and Article 26 (“Public Policy of the forum”) of Rome II Regulation specifically in relation to claims for bereavement damages in cross-border fatal accidents. It does so by first illustrating an Italian Supreme Court’s judgment that disapplied Austrian law denying awards for nonpecuniary damages to secondary victims. This precedent and other developments, including recent ECJ judgments on Motor Insurance Directives, show that there are grounds for national judges to limit the negative effects of Article 4: the ‘public policy’ rule can be an effective weapon against any denial of or any relevant restriction to victims’ right to full and fair compensation. More in general this paper’s conclusion is that a national judge, pursuant to Article 26, is entitled to disapply the foreign law which, in contrast with his internal public policy, would require him to discriminate in peius among victims suffering violations of fundamental rights.