JUDGMENT NO. 32

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 2952, second paragraph, of the Civil Code, in the wording introduced by Article 3, paragraph 2-ter, of Decree-Law No. 134 of August 28, 2008 (Urgent provisions regarding the restructuring of large companies in crisis), converted, with amendments, into Law No. 166 of October 27, 2008, preceding the one replaced by Article 22, paragraph 14, of Decree-Law No. 179 of October 18, 2012 (Further urgent measures for the growth of the Country), converted, with amendments, into Law No. 221 of December 17, 2012, initiated by the Court of Appeal of Florence, Second Civil Section, in the proceedings between Poste Vita spa and R. P. with order of May 31, 2023, registered under no. 103 of the register of orders 2023 and published in the Official Gazette of the Republic no. 35, first special series, of the year 2023, the hearing of which was set for the meeting in chambers of January 23, 2024.

Heard in the chamber of the council of February 7, 2024, the Reporting Judge Emanuela Navarretta;

Resolved in the chamber of the council of February 7, 2024.

Facts of the case

1.– By order of May 31, 2023, registered under no. 103 of the register of orders 2023, the Court of Appeal of Florence, Second Civil Section, raised, with reference to Articles 3 and 47 of the Constitution, questions of constitutional legitimacy of Article 2952, second paragraph, of the Civil Code, in the wording introduced by Article 3, paragraph 2-ter, of Decree-Law No. 134 of August 28, 2008 (Urgent provisions regarding the restructuring of large companies in crisis), converted, with amendments, into Law No. 166 of October 27, 2008, and preceding the one replaced by Article 22, paragraph 14, of Decree-Law No. 179 of October 18, 2012 (Further urgent measures for the growth of the Country), converted, with amendments, into Law No. 221 of December 17, 2012, insofar as it provides for a two-year limitation period to assert rights arising from a life insurance contract.

2.– The judge premises, as a matter of fact, that O. P., on January 8, 2002, had entered into a contract with the company Poste Vita spa, qualified as a «life insurance policy of the index linked type» with a ten-year term, indicating, in case of his death, his son R. P. as beneficiary. On February 28, 2009, this contract was consensually «transform[ed]» into the policy «Postafuturo ad hoc» with an expiry date set for December 31, 2015, having the same beneficiary.

2.1.– The judge a quo reports that the contracting party died on September 9, 2009, and that only on November 14, 2015, the beneficiary son submitted a request for liquidation of the policy. However, Poste Vita spa communicated «the impossibility of fulfilling the request», considering both the two-year limitation period that had accrued since the death of the contracting party, pursuant to Article 2952, second paragraph, of the Civil Code, in the wording applicable ratione temporis, and the obligation to transfer the amounts relating to time-barred claims to the fund referred to in Article 1, paragraph 343, of Law No. 266 of December 23, 2005, containing «Provisions for the formation of the annual and multiannual budget of the State (2006 Finance Law)», established «[t]o compensate savers who, investing in the financial market, have been victims of financial fraud and who have suffered an unjust damage not otherwise compensated».

2.2.– R. P. therefore brought proceedings before the Ordinary Court of Lucca to request the nullity for lack of form of the index linked contract, qualifying it as a financial investment and not as an insurance policy, and, in any case, the liquidation of the amounts due based on the second policy, arguing that the limitation period was ten years and that the dies a quo should, in any case, run from the actual knowledge of the policy signed by his father.

The Court of Lucca declared, on the one hand, the nullity of the original contract, considering it a financial instrument that would have required the prior conclusion of a «framework agreement» or «general investment contract», pursuant to Article 23 of Legislative Decree No. 58 of February 24, 1998 (Consolidated Law on provisions regarding financial intermediation, pursuant to Articles 8 and 21 of Law No. 52 of February 6, 1996); and, on the other hand, the ineffectiveness of the second contract, qualified as a novation of an obligation originating in an invalid contract. It therefore ordered the defendant party to return the premium paid.

2.3.– The referring court then reports that Poste Vita spa has appealed against the judgment of first instance, to which R. P. opposed, reiterating the claims formulated in the first instance, including the request for liquidation of the second insurance policy.

3.– Within the scope of these proceedings, the Court of Appeal of Florence raised, ex officio, questions of constitutional legitimacy of Article 2952, second paragraph, of the Civil Code, in the wording introduced by Article 3, paragraph 2-ter, of Decree-Law No. 134 of 2008, as converted, and preceding the one replaced by Article 22, paragraph 14, of Decree-Law No. 179 of 2012, as converted, applicable ratione temporis to the case at hand.

According to the judge a quo, the provision would violate Articles 3 and 47 of the Constitution and the vulnus could be remedied by eliminating the prescribed two-year duration of the limitation period for rights arising from the life insurance contract.

4.– As for the profile of relevance, the judge a quo believes, first of all, that he must accept the grounds of appeal concerning the alleged nullity of the first policy and the supposed qualification as ineffective novation of the second policy.

In this regard, the referring judge excludes the nullity of the first contract, qualifying it as a Branch III policy, on the assumption that the agreement provided for the guarantee of full restitution of the single premium paid, guaranteed the benefit regardless of the results of financial management and had been drawn up in writing with full indication of the applicable conditions. Consequently, he denies that the second contract can be considered as an ineffective novation of a non-existent obligation.

Consequently, the referring Court finds that it must «necessarily examine the request of the appellant party Poste Vita S.p.A. to reject the claims made [by Mr. R.] P. for liquidation of the second policy, of Branch I».

In this regard, it considers that an interpretation in conformity with the Constitution of Article 2952, second paragraph, of the Civil Code - in its text in force ratione temporis - is not feasible given its clear literal tenor: the provision establishes, in fact, that the limitation period runs «from the day on which the fact on which the right is based occurred».

Furthermore, the judge a quo specifies that the provision applicable to the case at hand is the one censured, since the text introduced by Article 22, paragraph 14, of Decree-Law No. 179 of 2012, as converted, came into force when the two-year limitation period had already fully matured; nor did that provision provide for any transitional rule.

In essence, according to the referring court, the relevance of the questions raised would exist, since, if they were accepted, «the ordinary limitation regime referred to in Article 2946 of the Civil Code would apply, whose regulatory scope would expand to include the case under examination […] and the exception raised in this regard by Poste Vita S.p.A. would have to be rejected».

5.– On the merits, the judge a quo argues the non-manifest unfoundedness of the questions of constitutional legitimacy of the challenged provision raised with reference to Articles 3 and 47 of the Constitution.

5.1.– To this end, he reconstructs the historical evolution of the provision, specifying that, prior to the 2008 amendment, it provided, for rights deriving from the insurance contract other than the payment of premium installments, a limitation period of one year from the day on which the fact on which the right was based occurred, a period that became two years in the case of the reinsurance contract.

According to the referring court, already the Institute for the Supervision of Private and Collective Interest Insurances (ISVAP) had highlighted the unreasonableness of the provision of a short limitation period compared to life insurance policies, so much so that, with circular no. 403/D of March 16, 2000, the same supervisory body had invited insurance companies to proceed with the liquidation of amounts concerning the life branch even in the event of late requests, having emerged «[f]rom the examination of some complaints […] that in most cases the late request depended on the fact that the beneficiaries were not aware of the existence of the policy, having found the documentation only at a time subsequent to the death of the insured» (point 8).

The judge a quo specifies, below, that Article 3 of Decree-Law No. 134 of 2008, as converted, while, on the one hand, had raised the aforementioned limitation period from one to two years also in the case of the insurance contract, on the other hand, had, at the same time, provided for the immediate and mandatory transfer to the fund referred to in Article 1, paragraph 343, of Law No. 266 of 2005 of all the amounts concerning life insurance policies not requested within the limitation period.

5.2.– In the opinion of the referring court, this regulatory solution would have resulted in seriously and unjustifiably prejudicial consequences for the beneficiaries of the benefits of life insurance policies.

In particular, the judge a quo notes, firstly, that the limitation period would have remained «extremely short» and therefore «in itself unreasonable», since it did not make «the possibility of exercising the right effective, especially in the case of the death of the insured». He specifies, in this regard, that only after the period in question, with Article 20-quinquies, paragraph 1, of Decree-Law No. 119 of October 23, 2018 (Urgent provisions in tax and financial matters), converted, with amendments, into Law No. 136 of December 17, 2018, paragraph 1-bis was introduced into Article 3 of Decree of the President of the Republic No. 116 of June 22, 2007 (Regulation implementing Article 1, paragraph 345, of Law No. 266 of December 23, 2005, regarding dormant deposits), which requires insurance companies, every year, to verify with computer tools «the existence in life of the insured of life insurance policies», taking action in the event of a procedure for payment of the insured amount to the beneficiary.

Secondly, he observes that the obligation to proceed with the payment of the amounts to the fund of "dormant relations" would have prevented the companies themselves from proceeding with the payment of the amounts to the beneficiaries anyway.

Finally, he notes that the methods and terms of transfer to the fund would have been unreasonable and penalizing also compared to other consumers, whose savings also flow into that fund: the limitation period was shorter than the ten-year period generally provided for "dormant relations" by Article 1, paragraph 1, letter b), of Presidential Decree no. 116 of 2007 and no obligation for a preliminary notice or verification by the insurance companies was provided for. Conversely, for other relationships, Article 3, paragraph 1, of the same Presidential Decree establishes the prior sending, by registered letter, of an «invitation to issue instructions within 180 days from the date of receipt», with notice that only «after this period, the relationship will be terminated and the sums and values relating to each relationship will be transferred to the fund». Furthermore, a deadline within which to submit one's requests directly to the fund was not even indicated, similarly to what happened, and still happens, for cashier's checks, pursuant to Article 1, paragraph 345-ter, of Law No. 266 of 2005.

In essence, according to the referring judge, «the regulatory intervention implemented in 2008 not only [would] not have solved the problem, already reported by ISVAP, of the intrinsic unreasonableness of the short limitation period for rights arising from life insurance policies, […] but [would] rather have further accentuated it and made it even more serious, introducing a sort of automatic and irreversible "expropriation”, in favor of a state fund, of the sums due to the beneficiaries», without prior notice, nor the possibility of fulfillment ex Article 2940 of the Civil Code by insurance companies.

At the end of his argument, the judge a quo recalls the modification that took place with Article 22, paragraph 14, of Decree-Law No. 179 of 2012, as converted, which, «[i]n order to overcome possible disparities in treatment between consumers in the life insurance policy sector» and to «better guarantee consumers – especially the heirs who must collect the life insurance policies of their loved ones» – has lengthened the limitation period to ten years.

5.3.– Ultimately, the referring judge, while recognizing the wide margin of discretion reserved to the legislator in identifying the limitation period, considers manifestly unreasonable what is provided for by the challenged provision.

The latter would be «in clear contradiction with the special protection that the legislator, in implementation of the Republic's duty to protect retirement savings, instead ensures to the same life insurance policies in other areas, such as the non-seizability and non-attachability of the sums due by the insurer to the contracting party and the beneficiary ex Article 1923 of the Civil Code, the exclusion of indemnities from the hereditary estate ex Article 12 of Legislative Decree no. 346 of 1990, the special tax regime».

The judge a quo believes that a merely ablative intervention, which excludes life insurance policies from the two-year limitation period, is sufficient to fill the normative vulnus, since it would entail the application of the ordinary ten-year limitation period ex Article 2946 of the Civil Code, in line with the subsequent legislative intervention that amended, with Article 22, paragraph 14, of Decree-Law No. 179 of 2012, as converted, Article 2952, second paragraph, of the Civil Code.

Legal grounds

1.– By order of May 31, 2023, registered under no. 103 reg. ord. 2023, the Court of Appeal of Florence raised, with reference to Articles 3 and 47 of the Constitution, questions of constitutional legitimacy of Article 2952, second paragraph, of the Civil Code, in the wording introduced by Article 3, paragraph 2-ter, of Decree-Law No. 134 of 2008, as converted, and preceding the one replaced by Article 22, paragraph 14, of Decree-Law No. 179 of 2012, as converted, insofar as it provides for a two-year limitation period to assert rights arising from a life insurance contract.

2.– The judge a quo believes that the provision provided for by the challenged provision violates Articles 3 and 47 of the Constitution, presenting profiles of unreasonableness, which prejudice the protection of savings.

According to the referring court, the short limitation period imposed for life insurance policies would be manifestly unreasonable, as it would not make the possible exercise of rights deriving from a contract that has a function of retirement savings effective.

2.1.– The Court of Appeal of Florence notes how the two-year term is such as to hinder the effective exercise of the right to insurance benefits, especially by the beneficiaries, in the event of the death of the insured, all the more so because – during the period of validity of the provision – insurance companies did not have computer tools that would allow them to ascertain the status of the insured of life insurance policies, and were not required to take action to inform the beneficiaries of the policy.

Moreover, by virtue of the obligation placed on insurance companies to proceed, once the limitation period has expired, with the transfer of the sums not claimed by the beneficiaries to the fund of "dormant relations", these companies were inhibited from making the payment of the amounts due, failing to raise the limitation of actions. Furthermore, unlike what is provided for by the supervening legislation, not applicable ratione temporis to the relationships in question, the beneficiaries were not even notified of the payment to the fund of "dormant relations", nor could they apply to this fund.

2.2.– Ultimately, the referring judge contests that a mechanism has been conceived that introduces «a sort of automatic and irreversible "expropriation", in favor of a state fund», to the detriment of the rights of the beneficiaries to whom the sums resulting from the savings of the contracting parties were addressed, and this «in clear contradiction with the special protection that the legislator, in implementation of the Republic's duty to protect retirement savings, instead ensures to the same life insurance policies in other areas».

The judge therefore requests an ablative intervention with reference to life insurance policies, which would have as a consequence the expansion of the ordinary ten-year term referred to in Article 2946 of the Civil Code.

3.– The referring court argues the relevance of the questions, accepting the grounds of appeal that are logically preliminary and considering the challenged provision applicable ratione temporis to the case at hand. It also excludes the feasibility of an interpretation in conformity with the Constitution.

4.– On the merits, the questions raised with reference to Articles 3 and 47 of the Constitution are well-founded.

5.– In the discipline of limitation of actions, the legislator enjoys wide discretion that allows him to pursue public interest purposes and, at the same time, to balance the private interests of the opposing parties. In particular, it may establish long limitation periods, just as it may, on the other hand, provide for short periods, perhaps associated with a flexibility of the starting date and possibly combined – on the model of other legal systems – with a final deadline that cannot be exceeded.

Nevertheless, this wide discretion encounters a limit: that of not being able to be exercised «"in such a way as not to make the possibility of exercising the right to which it refers effective, and consequently inoperative the protection that was intended to be granted to the injured citizen" (ex plurimis, orders no. 16 of 2006 and no. 153 of 2000)» (judgment no. 234 of 2008).

This limit is exceeded by the challenged provision.

6.– Article 2952, second paragraph, of the Civil Code provides that the «other rights», with respect to those indicated in the first paragraph, «arising from the insurance contract and the reinsurance contract shall expire in two years from the day on which the fact on which the right is based occurred».

To these «other rights» is ascribed, in particular, the one which, together with the payment of premiums (evoked in the first paragraph), gives effect to the function of the contract: that is, the right to the payment of the sums due by the insurer to the contracting party or to the third beneficiary. The discipline under examination is molded around this subjective legal situation and with respect to it, it is necessary to question the ratio of the rule, which is reflected in the judgment of reasonableness.

The wording of the challenged provision is that in force after the replacement of the second paragraph of Article 2952 of the Civil Code provided for by Article 3, paragraph 2-ter, of Decree-Law No. 134 of 2008, as converted, and prior to that provided for by Article 22, paragraph 14, of Decree-Law No. 179 of 2012, as converted.

Specifically, the discipline introduced in 2008 raised to two years the limitation period, which was originally one year, while the 2012 reform excluded from this two-year limitation period the rights that derive from the life insurance contract, to which the ten-year limitation period applies.

The referring court invokes a declaration of constitutional illegitimacy of the challenged provision, insofar as it does not provide that the same exclusion from the two-year limitation period of the rights deriving from the life insurance contract may operate, in order to allow the ordinary ten-year limitation period to expand for such rights.

7.– Article 2952, second paragraph, of the Civil Code focuses – as already anticipated (point 6) – on two elements: the two-year duration of the limitation period and the starting date identified in the «fact on which the right is based».

7.1.– The dies a quo from which the two-year limitation period runs is constituted by a parameter that, in the case of the sums due by the insurer to the insured or the beneficiary, is identified in the events – death or survival at the expiry date of the contract – that allow the acquisition of the right accrued by virtue of the insurance and, in the case of the third beneficiary, of the designation.

The objective nature of the dies a quo in life insurance is not questioned by living law (most recently, Court of Cassation, Third Civil Section, order October 21, 2022, no. 31144; Sixth Civil Section, order September 15, 2020, no. 19112 and Third Civil Section, order August 25, 2020, no. 17672).

Indeed, it is justified by the need, specific to insurance companies, to have certainty about the moment in which the right can be asserted, in order to be able to prepare a technical-legal organization suitable to guarantee the timely payment of the sums due to the insured.

7.2.– Having premised this, the combination of this objective dies a quo, which finds a specific motivation in the system of life insurance policies, with a short limitation period presents, in the context of life insurance policies, profiles of manifest unreasonableness.

On the one hand, in fact, with respect to the rights that derive from life insurance, there is no need for a prompt ascertainment of the right that can justify a short limitation period.

On the other hand, life insurance encompasses cases in which the holder of the right to payment of the sums due by the insurer is often a third beneficiary, who could well be unaware that he is the holder of the right and, therefore, could be particularly prejudiced by a short limitation period.

7.2.1.– Under the first profile, it should be noted that in life insurance there is not the same need for a rapid verification of the constitutive fact of the right, which emerges in the context of damage insurance.

In the context of this latter contractual type, the right to compensation is due only if the damaging event covered by the insurance, the causal link and the damages for which compensation is requested are ascertained.

The more time elapses, the more difficult it could be to prove the constitutive elements of the right. For this reason, this Court – referring to the three-year period for asserting the benefits covered by mandatory insurance paid by the National Institute for Insurance against Accidents at Work (INAIL) – has considered the relative discipline not unreasonable, finding the «objective need to arrive at a prompt search for the facts, since a wait of more than three years could prejudice the collection of evidence useful for verifying the etiological relationship between accident (or illness) and event for the purposes of compensability» (judgment no. 207 of 1997, which refers to judgment no. 71 of 1993). Therefore, a conflict with Article 3 of the Constitution was excluded, on the assumption that the need «for prompt ascertainment of the facts», correlated to the short limitation period, also operated in the interest of the right holder, as well as of the insurance body required to provide the benefit (judgment no. 297 of 1999).

Conversely, life insurance does not perform an indemnity function with respect to the occurrence of a claim, but has a prevailing function of retirement savings, correlated to the uncertainty of life span. Through the accumulation of premiums and their possible yield, in fact, the contract offers economic tranquility to the insured or to third parties, upon the occurrence of life events (of the insured or of third parties), such as death or survival at the expiry of the contract.

As further support for this reconstruction, the sums due by the insurer cannot be subjected to enforcement or precautionary action (Article 1923, first paragraph, of the Civil Code) and the contract must regulate the rights of redemption and reduction of the policy (Article 1925 of the Civil Code), institutes not applicable to other insurance policies.

In the face, therefore, of what is the prevailing function of the life insurance contract, the provision of such a short limitation period for acquiring sums that derive from the mechanism of accumulation of savings and that are due upon the occurrence of events – death or survival at the expiry date of the insurance – that do not, in general, imply any complexity of ascertainment is not justified.

7.2.2.– Therefore, if, in life insurance, there are no reasons suitable to justify in themselves the provision of a short limitation period, its combination with an objective dies a quo determines, in the context under examination, the manifest unreasonableness of the two-year limitation period.

In life insurance, in fact, it is anything but remote that the holder of the right to payment of the sums due by the insurer is a third beneficiary and that he is unaware that he has acquired the right, not being aware of his designation.

The claim that such a right be exercised in a very short time resolves itself, therefore, in an excessive difficulty, if not in an impossibility of asserting it.

7.2.2.1.– In particular, no provision of law establishes that the insured must inform the beneficiary of the designation. On the contrary, the legislator has established that the insured can always revoke the benefit (Article 1921 of the Civil Code), even by means of a will (Article 1920 of the Civil Code), unless the event has occurred or the insured has renounced the revocation in writing and the beneficiary has declared that he intends to take advantage of the benefit (thus, the aforementioned Article 1921 of the Civil Code).

There is, therefore, a situation that has strong similarities with the institution of the acceptance of the inheritance, when the person who has the right to accept does not know that he has been designated as heir by the will. In this case, however, the legislator compensates for the objectivity of the dies a quo – which runs from the opening of the succession and, therefore, from the death of the de cuius, save for the case of the conditional institution that causes the calculation of the term to begin from the occurrence of the condition – with the provision of the ten-year limitation period (Article 480, first paragraph, of the Civil Code).

7.2.2.2.– If, therefore, the contracting party is not obliged to inform the beneficiary of the designation, upon closer inspection, – during the validity of the challenged provision – an obligation to inform did not even exist for the stipulator.

Regardless of whether or not such a duty to inform can be attributed to the rule of correctness – which living law had excluded (Court of Cassation, Sixth Civil Section, order September 26, 2018, no. 23069) –, in any case, it would not have been enforceable before 2018.

In fact, only with Article 20-quinquies, paragraph 1, of Decree-Law No. 119 of 2018, as converted – which intervened on Article 3 of Presidential Decree No. 116 of 2007 – it was ordered that insurance companies verify, «by December 31 of each year, through a computer cooperation service with the Revenue Agency, exclusively for the data that is strictly necessary, the existence in life of the insured» and that, in the event of a correspondence between the tax code of the insured and the deceased person, the companies take action for the procedure of payment of the insured sum to the beneficiary, «including the search for the beneficiary if not expressly indicated in the policy» (Article 3, paragraph 1-bis, of the aforementioned Presidential Decree).

However, when this discipline was introduced, the challenged provision was no longer in force.

Moreover, it cannot be overlooked that, in any case, the possible violation of the duty to inform assures at most a claim for damages, so that the provision of the obligation to inform was appropriately added to the new discipline, which introduced the ten-year limitation period in 2012, thus making possible and not excessively difficult the exercise of the rights, pursuant to Article 2952, second paragraph, of the Civil Code, deriving from life insurance.

7.2.3.– Finally, a further reason contributes to outlining a framework of extreme difficulty, if not sometimes of impossibility, to assert the rights regulated by the challenged provision.

This is the systematic coordination of this provision with that according to which the amounts not claimed within the limitation period must be transferred to the fund established with the "dormant" relationships, referred to in Article 1, paragraph 343, of Law No. 266 of 2005.

This was established, in particular, by Article 3, paragraph 2-bis, of Decree-Law No. 134 of 2008, as converted, which added, to Article 1 of Law No. 266 of 2005, paragraph 345-quater (then further amended by Article 4, paragraph 1-bis, of Decree-Law no. 155 of October 9, 2008, containing «Urgent measures to guarantee the stability of the credit system and the continuity in the provision of credit to companies and consumers, in the current situation of crisis in international financial markets», converted, with amendments, into Law no. 190 of December 4, 2008).

The intervention was concurrent with the introduction, with Article 3, paragraph 2-ter, of the same