This document examines the problem concerning the identification of the competent judge to decide on the interpretation of a life insurance contract signed by an Italian citizen abroad, in this case in a state that is not an EU member (Switzerland). . The reservation of jurisdiction in favor of the Judge of said State, contained in the contract itself, must be considered illegitimate, since through it the policyholder – citizen of a country (Italy) for which EU Regulation no. 593/2008 (so-called “Rome I regulation) of 06.17.2008 (Identification of the law applicable to civil and commercial contractual obligations) is immediately binding pursuant to art. 288 TFEU – has designated, as Judge, that of a State that is not an EU member, and therefore has violated the rule contained in the Treaty, which binds Italy (and its citizens) only towards the adhering countries and not also of “third” states. Consequently, since the legislation contained in the Regulation cannot be applied, the jurisdiction of the Italian Judge must be considered to exist in the matter.
Court of Cassation-III Section. civil-ord. int. n. 27927 of 10/29/2024
The question
The Third Civil Section of Cassation, with interlocutory order no. 27927 of 10.29.2024, has provided, pursuant to art. 374, paragraph 2, cpc, the transmission of the appeal to the First President, for the possible assignment of the question relating to jurisdiction to the United Sections to decide on the dispute between several subjects who are competing for the status of beneficiary of a life insurance policy pursuant to art. 1920 cc, if the insurance contract contains a clause extending jurisdiction.
Specifically, the issue is the following: when the contract was stipulated in a country that is not an EU member (in this case, Switzerland), the disputes relating to the interpretation of the same (in this case: the identification of the true beneficiary of the contract) are in any case up to the Judge of that State, or are under the jurisdiction of the Judge of the place (in this case, Italy) in which the event occurred (in this case, death of the contracting party and consequent opening of the succession) which determined the same controversies arise?
The facts of the case
Tizio had stipulated n. 4 insurance contracts on the life of a niece, and another 4 on the life of another niece. These contracts, however, were also stipulated for the case of death. Tizio passed away and left his wife and three children as heirs. After two years, his wife also passed away, leaving as heirs, in addition to the three children, also two grandchildren. One of the sons (Caio) of the policyholder sued the 4 co-heirs (i.e. the other two children and the two grandchildren), claiming that the eight life insurance policies actually attributed the right to compensation to the same policyholder, and not to others , and that this right had been assigned by the same contractor to his wife by means of a will. Caio, therefore, argued that this right, following the death of his wife, had fallen into succession and had therefore been transferred to the children, either by virtue of the aforementioned will or in any case as a result of legitimate succession.
The two nieces appeared before the court, objecting to the lack of jurisdiction of the Court of Turin on the question concerning the identification of the exact beneficiary of the insurance compensation owed by the Company, and this by virtue of a clause which they attributed to the Swiss judge disputes concerning the contract. The Court of Turin, however, reiterated the existence of its jurisdiction, and accepted Caio’s request. The Court of Appeal, appealed by the nieces, confirmed this decision, as the succession had opened in Italy.
The analysis according to Italian law
Pursuant to art. 1919 cc, “the insurance can be stipulated on one’s own life or on that of a third party”.
The art. 5 cpc provides that jurisdiction is determined on the basis “to the law in force and the state of affairs existing at the time the application was submitted”. What is relevant is not the law in force at the time in which the contract was stipulated (in this case, Swiss law), but rather that in force at the time in which the judicial request aimed at obtaining a sentence is proposed which – in the case of the case – interpret the contract itself and decide accordingly. The application is based on a fact (opening of succession) that occurred in Italy, and therefore the Court of Turin should be competent.
However, the criterion established by art. 5 cpc does not appear to resolve the problem, because in any case we must return to the original question: by “law in force at the time of the application” does it mean that of the place where the contract was stipulated, or that of the place where the event occurred (opening of succession) on which the question of interpretation of the contract itself is based? Upon closer inspection, the above-mentioned fact only represents “the consequence of the interpretation”: only if it is ascertained that the beneficiary of the policies was actually not a third party, i.e. the two granddaughters of the policyholder, but rather the latter himself, then the opening of the succession becomes relevant, and therefore only in this case can the claim of the plaintiff (Caius, one of the contracting party’s sons) be accepted. But first we need to answer the question.
Again based on Italian law, art. 1362 cc establishes the following principles: “when interpreting the contract one must investigate what the common intention of the parties was and not limit oneself to the literal meaning of the words”; “to determine the common intention of the parties, their overall behavior must be evaluated even after the conclusion of the contract”. The interpretative activity, therefore, must be based on a substantialistic criterion (the real will of the parties), and not a formalistic one (what the contract provides).
If this line is followed, precisely because one must not stop at what is written in the contract, the exclusive jurisdiction to investigate the real will of the parties should not be the Judge of the place of stipulation, but rather the Judge hearing the request: in this case case, the Italian Judge (Court of Turin).
The analysis according to private international law
Regulation (EC) no. 593/2008 (so-called “Rome I regulation) of 17.06.2008 – entered into force on 17.12.2009, which regulates the identification of the law applicable to civil and commercial contractual obligations and which replaced the Rome Convention of 19.06.1980 on the law applicable to contractual obligations, ratified with Law no. 975 of 18.12.1984 – applies in the Member States of the European Union when the law to be applied to contracts having international elements must be determined.
The art. 12 provides that “the law applicable to the contract pursuant to this regulation governs its interpretation”.
By “applicable law” we mean, pursuant to art. 11 of the Premises, of course the one chosen by the parties.
In the event that the parties have not made the choice“the contract should be governed by the law of the country in which the party who must perform the performance characteristic of the contract has his habitual residence” (art. 19 Premesse). The art. 4 however provides that the criterion of habitual residence (in this case it would be Switzerland, as Tizio, who stipulated the life insurance contracts, had residence in that country), is not the sole and only tool for identifying the applicable law. In fact, it establishes that, “if it is clear from all the circumstances of the case that the contract has manifestly closer links with a different country“from that of the habitual residence, “the law of that different country applies”.
How do you determine the “different country with which the contract has a closer connection”? The art. 20 of the Premises establishes, in this regard, that for this purpose “it should be considered, among other things, whether the contract in question is closely linked to another contract or contracts”. If we rely on this principle, then it must be observed that one thing is the relationship between two contracts, another thing, however, is the interpretation of the same and single contract, which occurs in the present case, where the opening of the succession is not only not a “contract” but , as already highlighted above, represents only “the consequence of the interpretation” itself: only if it is ascertained that the beneficiary of the policies was actually not a third party, i.e. the two granddaughters of the policyholder, but the latter himself, then the opening of the succession becomes relevant, and therefore only in this case the plaintiff’s request ( Caius, one of the contractor’s sons) can be accepted.
However, in the case in question, the policyholder has designated the Swiss judge as the judge competent to decide on the contract, and therefore he has effectively “chosen”, through this reservation of jurisdiction, the “applicable law”. Consequently, based on the principle of “freedom of choice”, the jurisdiction of this Judge should be considered legitimately existing.
Impossibility of applying community legislation due to lack of essential prerequisite
There is, however, a problem with the applicability of the rules contained in the EU Regulation, as this applies to the Member States, and Switzerland – whose law was “chosen” by the policyholder through the reservation of jurisdiction inserted in the contract – does not is an EU member stateeven if it pursues its European policy on the basis of bilateral sectoral agreements.
Consequently, it is necessary to see whether the reservation cited above, on the basis of which “those entitled may bring proceedings in relation to the contract exclusively before the court of Zurich”, may be considered legitimate or not.
Then the question becomes the following: is it legitimate for the policyholder (Tizio), of Italian nationality, to designate, as Judge, that of a State which is not an EU member and which is therefore not subject to the rules of EU Regulation no. 593/2008, even if Italy, i.e. its country of origin, is subject to the rules of the same Regulation? Pursuant to art. 288 TFEU, “the regulation has general scope. It is mandatory in all its elements and directly applicable in each of the Member States”. Therefore, considering that the EU Regulation is binding for the EU Member State and consequently also for its citizens, it must be considered that the aforementioned reservation of jurisdiction in favor of the Swiss judge contained in the stipulated contracts is illegitimate, since, through it, the stipulator has imposed the jurisdiction of a State – Switzerland – which, to date, does not join the EU, and, thus in doing so, it violated the obligation, to which Italy was automatically subjected (see “direct applicability”), to apply European legislation, and not that of a “third” country with respect to Europe, such as Switzerland.
Therefore, since the aforementioned contractual reservation of jurisdiction must be considered, based on the community principle referred to in art. 288 TFEU, illegitimate, Italian jurisdiction should automatically be considered to exist, and therefore the exception of jurisdiction of the foreign judge, raised by those who claim to be the beneficiaries of the contracts, should be rejected.
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