ABSTRACT : A case is reported of unlawful reporting against the claimant, the legal representative and sales attorney of a shipbuilding/naval business company, by a banking institution. Compensation is sought for pecuniary and non-pecuniary loss resulting from the unlawful reporting.
The claimant received a registered letter communicating the non-payment of a balance, indicating the possible termination of the contract and the initiation of the reporting procedure at the CAI (Centrale d’allarme interbancaria) after the expiration of the 4-day deadline.
Despite the claimant’s immediate activation in the Bank’s notice to proceed, the claimant learns from the Bank that the activation procedure had already been initiated through an outside agency.
The illegality of the report is subsequently confirmed by the Bank through the acceptance of the complaint proposed by the applicant.
In the event of non-acceptance, an urgent appeal to the Judge can be made, pursuant to Article 700 of the Italian Civil Code. (Italian Civil Procedure Code).
The Bank, in this case, proceeds to cancel the report.
The appellant experiences a number of negative consequences from the unlawful reporting, both as a natural person and as a legal person. In fact, he has his mandate as credit broker by outside entities revoked as a result of the unlawful report. The claimant suffers not only damage in the pecuniary sphere, resulting from the impossibility of access to credit and from the vulnus to his banking credibility, but also damage to his name and the honorability of his person.
The pecuniary damage, derived from the accessory obligations of good faith of the contractual relationship, turns out to be established according to precise compensatory criteria that verify the contraction of income (emergent damage) and loss of earnings (loss of profit).
As for non-pecuniary damage, the Bank does not follow the new guidelines about the illegal signaling procedures (the duty to use a particular prudence and investigations on the solvency of the person to be reported) and causes injury to the image, honor, and reputation of the plaintiff. It is proposed to recognize the right to compensation, even in the absence of objective proof, arising from the damage in re ipsa caused by the banking institution’s failure to take the necessary precautions and care that the case requires.
The consolidation of case law on the subject establishes that the regulations on the Bank’s risk center do not escape the regulations on personality rights (personal data processing and right to image). Therefore, the case is within the Article 2050 of the Civil Code case in question, whereby the compensability of non-pecuniary damage is to be understood in the form of reparation. Damages are to be liquidated equitably through the prudent appreciation of the Judge.
To know more, please contact:
Alberto Bardinimailto:a.bardini@paoletti.com
