Osservazioni sul risarcimento del danno morale nella prospettiva europea

Abstract

According to a recent sequence of judgments by the Italian ‘Corte di Cassazione’, “non-material damage” must be interpreted as also encompassing the mental distress caused by injury, inasmuch as this kind of loss could be seen as a violation of human dignity, which is a legal interest protected by both art. 2 of the Italian Constitution and art. 1 of the EU Charter of Fundamental Rights. The essay, after having reconstructed the recent Italian case law following the 2008 judgments of the ‘Sezioni Unite’ of the ‘Corte di Cassazione’, enquires into what – in the European perspective – can be viewed as compensable “non-material damage”. In particular, the Author looks at two main issues: 1) the boundaries, if any, fixed by EU legislation – as interpreted by the EU Court of Justice – on the recovery of “nonmaterial damage”; 2) the refusal to countenance – as far as regards negligence – grief, sorrow, anxiety, distress or any other normal emotion as recoverable damages in the two main European Projects regarding tortious liability, namely the Principles of European Tort Law and the Principles of European Law - Non-contractual liability arising out of damage caused to another.