Sentenza n. 115 del 2024

Judgment No. 115 of 2024

JUDGMENT No. 115

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of: President: Giulio PROSPERETTI;

Judges: 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 issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 15, paragraph 3, of Legislative Decree No. 39 of 27 January 2010 (Implementation of Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts, amending Directives 78/660/EEC and 83/349/EEC and repealing Directive 84/253/EEC), initiated by the Ordinary Court of Milan, fifteenth civil division, in the proceedings between the Bankruptcy of T. e t. spa and R. L. T. G., by order of 6 September 2023, registered under No. 133 of the register of orders for 2023 and published in the Official Gazette of the Republic No. 41, first special series, of 2023.

Having seen the act of constitution of R. L. T. G.;

Having heard in the public hearing of 17 April 2024 the Judge rapporteur Emanuela Navarretta;

Having heard the lawyers Giulio Ponzanelli and Monica Iacoviello for R. L. T. G.;

Deliberated in the council chamber of 9 May 2024.

Facts of the case

1.– By order of 6 September 2023, registered under No. 133 of the register of orders for 2023, the Ordinary Court of Milan, fifteenth civil division, raised questions of constitutional legitimacy of Article 15, paragraph 3, of Legislative Decree No. 39 of 27 January 2010 (Implementation of Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts, amending Directives 78/660/EEC and 83/349/EEC and repealing Directive 84/253/EEC), insofar as it establishes that the limitation period for liability actions against statutory auditors and audit firms begins to run from the date of the audit report on the annual or consolidated financial statements issued at the end of the audit activity to which the claim for compensation relates.

2.– The referring court reports that the Bankruptcy of T. e t. spa (hereinafter: Bankruptcy) sued several parties to obtain their condemnation, under different titles, to compensate for the damages resulting from the insufficient assets of T. e t. spa, which had led to its bankruptcy.

Among the original defendants were the former chairman of the company, the former members of the board of directors, the former chief executive officer, the former members of the management control committee, the former statutory auditors, the former statutory auditor, R. L. T. G., and a credit institution.

The judge a quo states that, within the scope of the original proceedings, the Court of Milan issued a non-definitive judgment, pursuant to Article 279, second paragraph, number 5), of the Code of Civil Procedure, by which certain preliminary pleas on the merits raised by the defense of some of the defendants were rejected, and the separation of the proceedings relating to the claim for compensation brought by the Bankruptcy against the auditor was ordered, and, by separate order, the continuation of the proceedings for the further examination of the case was ordered.

In the context of these proceedings, the present incident of constitutionality was raised.

3.– Against the former auditor, the Bankruptcy brought a claim for compensation for damages, for having omitted any due control over the regular keeping of the company's accounts and the correct preparation of the financial statements, as well as for violation of the duties of diligence and professionalism imposed by law and connected to the assignment, and, in any case, for having contributed with the members of the board of directors and the management control committee to the aggravation of the company's distress.

Upon constitution in the proceedings, the defendant raised, inter alia, the plea of limitation of the claim for compensation asserted by the Bankruptcy, arguing that the last audit report filed, relating to the 2012 financial statements, was dated 14 June 2013, while the writ of summons was served on 17 October 2018, when the five-year limitation period provided for by Article 15, paragraph 3, of Legislative Decree No. 39 of 2010, running from the date of filing of the report, should be considered to have expired.

4.– The referring court confirms the temporal sequence indicated by the defendant and shares the latter's interpretation of Article 15, paragraph 3, of Legislative Decree No. 39 of 2010.

Nevertheless, it suspects that the provision in question is constitutionally illegitimate.

4.1.– On the point of relevance, the referring court observes that, in light of the insurmountable textual data and the factual assumptions emerging from the case file, the claims brought by the Bankruptcy against the auditor should be rejected, as the limitation period for the action undertaken by the Bankruptcy itself has now elapsed. The outcome of the case therefore depends on the decision of the incident of constitutionality.

4.2.– With regard to the non-manifest lack of merit, the judge a quo finds a conflict of Article 15, paragraph 3, of Legislative Decree No. 39 of 2010 with Article 3, first paragraph, of the Constitution, under a dual profile: on the one hand, it would entail an unreasonable disparity of treatment with respect to the discipline of the accrual of the limitation period provided for liability actions against directors and statutory auditors; on the other hand, it would reveal an intrinsic unreasonableness, in making the limitation period run even "when the injured party is not yet the holder of the right to compensation or when he cannot be diligent in the exercise of that right, because the right has not yet arisen or because he cannot be aware of the damage he has suffered".

Moreover, the provision would conflict with Article 24, first paragraph, of the Constitution, insofar as the accrual thus established would end up significantly hindering the effective exercise in court of the right to compensation by the injured party.

5.– The private party constituted itself in the proceedings, which raised the plea of lack of merit of the issue raised.

5.1.– With respect to the alleged violation of Article 3, first paragraph, of the Constitution, due to unjustified disparity of treatment with respect to the accrual of the limitation period for liability actions against directors and statutory auditors, the party's defense observes that the different regime is "justified (and indeed required) by the diversity of the situations taken into consideration".

Directors perform a management function, which would be far removed from that of mere control, reserved for auditors.

As for the statutory auditors, their control duties have a much broader scope than that of the auditors; for the latter, the audit is limited to the control of the financial statements and the verification of the correct and regular keeping of the accounts, while the statutory auditors have multiple duties, not merely technical, which correspond to specific and incisive powers of intervention from within the corporate structure.

Nor could the joint and several liability link that the law establishes between the auditors and the directors have a decisive significance, since this is a non-obligatory choice: "nothing prevents the provision of proportional liability, which has even been recommended at European level". Joint and several liability could not therefore, from the point of view of the defense, be regarded as an index of the alleged homogeneity of situations, necessary to operate the comparison provided for by Article 3 of the Constitution.

5.2.– On this basis, the party's defense also contests the supposed intrinsic unreasonableness of the provision challenged, which would, on the contrary, be consistent with the spirit of supranational sources, achieving a balance between the need to protect the injured party and that of containing the excessive exposure to liability of the auditor.

5.3.– Finally, with regard to the alleged violation of Article 24, first paragraph, of the Constitution, the party's defense observes that Article 2935 of the Civil Code does not occupy a superordinate position in the system, so that there is always the possibility for the legislator to derogate from it, linking the dies a quo of the limitation period to specific circumstances and events (Judgment No. 78 of 2012 of this Court is cited in this regard).

An example would be, precisely in the matter of compensation actions in the corporate context, Article 2393, fourth paragraph, of the Civil Code, which establishes that the time limit for the company's action against the directors runs from the date of termination of their assignment.

To this, according to the party's defense, it should be added that "the right to judicial protection is adjustable, without prejudice to the prohibition of provisions that make the exercise of defense impossible or extremely difficult".

Such an event would not occur in the case of the provision challenged, given that the non-fulfillment attributable to the auditors is instantaneous and the damages that may have been caused by them would not be long-latent. The accrual identified by Legislative Decree No. 39 of 2010 could not, therefore, be considered excessively restrictive of the rights of injured parties.

6.– On 31 October 2023, the Italian Association of Statutory Audit Firms (ASSIREVI) filed an opinion, in its capacity as amicus curiae, pursuant to Article 6 of the Supplementary Rules for proceedings before the Constitutional Court. The opinion was admitted by Presidential Decree of 22 January 2024.

ASSIREVI, after having illustrated its statutory purposes and the core of the activities carried out in support of statutory audit professionals, such as to justify the presentation of the opinion, hopes that the Court will declare the issue raised inadmissible or unfounded.

The amicus curiae observes that the position of statutory auditors cannot be assimilated either to that of directors or to that of statutory auditors.

Compared to the former, the auditors would be deprived of any power of influence on the management choices of the directors, intervening always ex post and without having the power to prevent the occurrence of damages resulting from management actions.

Compared to the statutory auditors, the auditors would lack comparable powers and information channels, so that the control exercised by them over the company's activity would be very different from that of the statutory auditors. The auditor, "always remaining an external subject to the company, is called upon to pronounce solely on the conformity of the financial statements as a whole with the framework of reference rules".

The differences between the different figures would therefore also justify the autonomous discipline dedicated by the legislator to the audit activity and the different limitation period for liability actions.

ASSIREVI also emphasizes that the European Union, while not having dictated a specific discipline for the limitation period of the action against auditors, recommended in 2008 the introduction of limits to the auditor's liability, leaving each Member State free to choose the limitation method that best suits its civil liability system.

7.– Subsequently, the party's defense filed a supplementary brief, with which it reiterated its exceptions and defenses.

8.– At the hearing of 17 April 2024, the party's defense insisted on the acceptance of the conclusions made in the defense briefs.

Legal Considerations

1.– By order of 6 September 2023, registered under No. 133 of the register of orders for 2023, the Court of Milan, fifteenth civil division, raised questions of constitutional legitimacy of Article 15, paragraph 3, of Legislative Decree No. 39 of 2010, insofar as it establishes that the limitation period for liability actions against statutory auditors and audit firms begins to run from the date of the audit report on the annual or consolidated financial statements issued at the end of the audit activity to which the claim for compensation relates.

2.– The referring court is called upon to decide on the claim for compensation for damages that the bankruptcy trustee of a joint stock company has brought, inter alios, against the former statutory auditor of the company, for having omitted any due control over the regular keeping of the company's accounts and the correct preparation of the financial statements, as well as for violation of the duties of diligence and professionalism imposed by law or connected to the assignment, and, in any case, for having contributed with the members of the board of directors and the management control committee to the aggravation of the company's distress.

Upon constitution in the proceedings, the defendant raised, inter alia, the plea of limitation of the claim for compensation asserted by the Bankruptcy, observing that the last audit report filed, relating to the 2012 financial statements, was dated 14 June 2013, while the writ of summons was served on 17 October 2018, when the five-year limitation period provided for by Article 15, paragraph 3, of Legislative Decree No. 39 of 2010, running from the date of filing of the report, should be considered to have expired.

3.– The referring court, while confirming the temporal sequence indicated by the defendant and sharing the interpretation that the latter has provided of Article 15, paragraph 3, of Legislative Decree No. 39 of 2010, believes that the provision in question is constitutionally illegitimate, for violation of several constitutional parameters.

Firstly, there would be a conflict with Article 3, first paragraph, of the Constitution: on the one hand, for the unreasonable disparity of treatment that it determines with respect to the discipline of the accrual of the limitation period provided for liability actions against directors and statutory auditors; on the other hand, for its intrinsic unreasonableness, making the limitation period run even "when the injured party is not yet the holder of the right to compensation or when he cannot be diligent in the exercise of that right, because the right has not yet arisen or because he cannot be aware of the damage he has suffered".

4.– Before proceeding to the examination of the merits of the issues, it is necessary to focus, on the one hand, on the normative scope of Article 15 of Legislative Decree No. 39 of 2010, in which the challenged provision (paragraph 3) is placed, and, on the other hand, on the interpretative assumption from which the doubts raised by the referring court originate.

4.1.– Article 15 of Legislative Decree No. 39 of 2010 consists of three paragraphs.

Paragraph 1 provides that "[s]tatutory auditors and statutory audit firms are jointly and severally liable with the directors towards the company that has conferred the statutory audit assignment, its shareholders and third parties for damages resulting from the non-fulfillment of their duties", specifying that in internal relations, the joint and several debtors "are liable within the limits of their effective contribution to the damage caused".

Paragraph 2 establishes that those damages are also the responsibility, jointly and severally among them and with the statutory audit firm, of the head of the audit assignment and the employees who have collaborated in the audit activity, specifying that they "are liable within the limits of their effective contribution to the damage caused".

Finally, the challenged paragraph 3 establishes that the "action for compensation against those liable under this article is time-barred within five years from the date of the audit report on the annual or consolidated financial statements issued at the end of the audit activity to which the action for compensation relates".

From paragraph 1 of Article 15, it is evident that auditors are liable not only for the damages caused by their non-fulfillment to the company that has conferred the assignment, but also for the damages that their activity may have produced directly on shareholders or third parties (as a result, for example, of the completion of acts, such as the purchase of shares or bonds of the company or the granting of financing to the latter, causally induced by the reliance engendered by the audit activity).

Auditors are not liable for damages that may indirectly derive to shareholders or third parties from the prejudice to the company. The liability of the auditors cannot, in fact, be more extensive than that of the directors who, pursuant to Article 2395, first paragraph, of the Civil Code, are liable only "for the damage due to the individual shareholder or third party who have been directly damaged by negligent or intentional acts of the directors" (also the Court of Cassation, in several pronouncements – first civil section, order 28 April 2021, No. 11223; third civil section, judgment 22 March 2012, No. 4548; united civil sections, judgment 24 December 2009, No. 27346 –, specifies that the directors are not liable for the possible indirect prejudice that the shareholders suffer as a result of the damage caused to the company and the consistency of its company assets).

This action for compensation, which shareholders and third parties can assert against the auditors for their direct damages, is of a tortious nature. The existence of a legal duty to attest that the company's financial statements represent truthfully and correctly the financial and asset situation, as well as the economic result of the company itself, is not enough to establish contractual liability. Faced with a violation of such duty, shareholders and third parties are damaged only when, as a result of the reliance engendered by the audit, there is a concrete deviation of their negotiating autonomy, resulting in damages.

The aforementioned action of the shareholders and third parties therefore has a distinct nature with respect to the contractual action which the company that conferred the assignment can make use of, given the heterogeneity of the respective constitutive assumptions.

Finally, as for the actions that can be brought against the subjects referred to in paragraph 2, they concern the joint and several liability of those who have actually carried out the audit activity and who are liable for damages deriving either from the non-fulfillment carried out by the audit firm or from the tortious act of the audit firm itself against the shareholders and third parties.

Faced with this set of actions, the provision containing the challenged provision – Article 15, paragraph 3, of Legislative Decree No. 39 of 2010 – refers to an "action for compensation" against a plurality of liable parties, an action whose limitation period is unique and is made to run from the filing of the audit report.

4.2.– In doubting the constitutional legitimacy of this provision, the referring court assumes that, according to the established law, formed on the provisions that generally regulate the dies a quo of the right to compensation for damages (Articles 2935 and 2947 of the Civil Code), and applicable – in its view – also to the provisions that govern the liability actions of directors and statutory auditors, the moment of accrual of the limitation period for the right must always be identified with that in which the damage becomes objectively knowable.

The judge a quo believes, in particular, that the interpretation of Articles 2935 and 2947 of the Civil Code, as elaborated by the Court of Cassation with reference to specific compensation events, is constitutionally obligatory for any right to compensation for damages. Only when the damage becomes knowable, the injured party could, in fact, assert its right and, therefore, only from that moment could the inertia be relevant for the preclusive purposes proper to the limitation period.

Therefore, in arguing that the same established law also supports the interpretation of the dies a quo relating to actions for compensation for damages, for which directors and statutory auditors of companies are liable, the referring court complains, first of all, that the challenged discipline determines an unreasonable disparity of treatment of the person entitled to compensation for damages with respect to what is always provided for those injured by the aforementioned actions.

5.– Having established the foregoing, the issue raised in reference to Article 3 of the Constitution is not founded, under the profile of unreasonable disparity of treatment between the injured parties who are subject to the rule provided for by Article 15, paragraph 3, of Legislative Decree No. 39 of 2010 for compensation actions against auditors and those who make use of compensation actions against directors and statutory auditors.

Even regardless of the different role that directors and statutory auditors have compared to auditors, the interpretative assumption from which the referring court starts is erroneous.

5.1.– If we consider, first of all, the textual data of the provisions of the Civil Code, which – following the amendments made by the reform of company law introduced with Legislative Decree No. 6 of 17 January 2003 (Organic reform of the discipline of capital companies and cooperative companies, in implementation of Law No. 366 of 3 October 2001) – regulate the limitation period of the various compensation actions against directors and statutory auditors, a regulatory framework emerges in which a single starting point for the limitation period is not indicated, expressly referring to the moment in which the damage becomes objectively knowable.

Article 2393, fourth paragraph, of the Civil Code provides that the company action against the directors "may be exercised within five years of the director's termination of office".

As for the claim for compensation that the company's creditors can assert against the directors, for "non-observance of the obligations inherent in the preservation of the integrity of the company's assets" – a right to compensation for damages, which Article 15, paragraphs 1 and 2, of Legislative Decree No. 39 of 2010 does not evoke, at least textually, with regard to auditors – the moment of accrual of the limitation period is identified as that in which "the company's assets are insufficient to satisfy the [...] credits" (Article 2394, second paragraph, of the Civil Code).

Finally, with reference to the action of the shareholder and the third party against the directors, Article 2395, second paragraph, of the Civil Code establishes that it "may be exercised within five years of the completion of the act that has prejudiced the shareholder or the third party".

The same provisions are then also applied to liability actions against statutory auditors, by virtue of the reference that Article 2407, third paragraph, of the Civil Code makes to Articles 2393, 2393-bis, 2394, 2394-bis and 2395 of the Civil Code.

5.2.– This heterogeneity of discipline, depending on the different nature of the various liability actions that may be taken into consideration, already precludes the identification of a precise tertium comparationis, for the purposes of the assessment of disparity of treatment, with respect to the single dies a quo indicated for compensation actions against auditors.

Nor has there been formed, on the scope of these provisions, an established law that brings the dies a quo back, by way of interpretation, to the paradigm of the objective knowability of the damage.

With regard to the same company action for liability of the directors, on the one hand, there are judgments on the merits that, on the assumption that the legislator intended to pursue, with the 2003 reform, the needs for legal certainty, interpret literally the dies a quo provided for by Article 2393, fourth paragraph, of the Civil Code, identifying it with the moment of termination of the director's assignment (Ordinary Court of Bologna, special business division, judgment 30 March 2023, No. 732; Ordinary Court of Trieste, specialized division in business matters, judgment 14 November 2022, No. 559; Ordinary Court of Naples, special business division, judgment 7 March 2022, No. 2267). On the other hand, there are interpreters who refer to the moment when the damage becomes objectively perceptible to the outside; among these is the referring court itself, according to which, where Article 2393, fourth paragraph, of the Civil Code provides that the director's action "may be exercised within five years of the director's termination of office", the use of the "concessive wording of the provision of Article 2393, paragraph 3, Civil Code" would favor "the rejection of its mechanical interpretation a contrario and instead the referral to the general provisions, specifically to the provision of Article 2935 Civil Code, of the accrual regime, identifying, according to the case-law of the Court of Cassation [...], the dies a quo as that in which the company can represent itself the damage received".

And, yet, in support of the interpretative assumption that it assumes, the order mentions pronouncements of the Court of Cassation on the accrual of the limitation period from the objective knowability of the damage, which, on closer inspection, concern facts extraneous to the context of company actions (Court of Cassation, second civil section, judgment 5 April 2012, No. 5504; labor section, judgment 11 September 2007, No. 19022; third civil section, judgment 8 May 2006, No. 10493, labor section, judgment 29 August 2003, No. 12666).

Moreover, the referring court's statement according to which "[n]o particular interpretative difficulty has then concerned the identification of the prescriptive regime of the non-contractual liability of directors and statutory auditors (Articles 2395, paragraph 2, 2407, paragraph 3, of the Civil Code), given that the "act that has prejudiced the shareholder or the third party" to which the provision refers to identify the dies a quo of accrual of the limitation period, could only be traced back to the "tortious act" referred to in Article 2947, paragraph 1 of the Civil Code, necessarily inclusive of the causal link and damage, from whose knowledge the term begins to run" is merely assertive.

In fact, if it cannot be doubted that there is a correspondence between the act that has prejudiced the shareholder or the third party and the tortious act producing the damage, it is not equally automatic that this leads – in the context under examination – to the outcome of making the limitation period run from the "knowledge of the damage".

In other words, the interpretative assumption from which the criticisms of the referring court start, according to which the dies a quo of the liability actions against directors and statutory auditors would be identified with the knowability or with the knowledge of the damage – and this thanks to "the general provisions, specifically to the provision of Article 2935 of the Civil Code" –, takes for granted an interpretative option that, in the context of corporate torts, has not reached the status of established law.

In such a situation of uncertainty, the discipline of the accrual of the limitation period for the liability actions of the auditor finds, in the provisions on the limitation period of the corresponding liability actions of directors and statutory auditors, a comparison term that is completely precarious and inadequate for an examination focused on unreasonable disparity of treatment.

6.– Now turning to the examination of the issues raised in reference both to Article 3 of the Constitution, under the profile of intrinsic unreasonableness, and to Article 24 of the Constitution, for violation of the right of defense, they are not founded in the terms outlined below.

7.– The judge a quo focuses the arguments relating to the lamented violation of Articles 3 and 24 of the Constitution on the assumption that a regulatory provision that makes the limitation period run before the compensable damage occurs and before it becomes knowable violates the principle of reasonableness and the right of defense of the injured party.

The legislator could not, therefore, derogate from what is established by Articles 2935 and 2947 of the Civil Code, according to the interpretation given to it by the established law, in the context of certain compensation events, which have seen the dies a quo, relating to the limitation period of the right to compensation for damages, identified with the moment in which this manifests itself and becomes objectively knowable (see, infra, the judgments cited in point 8).

Well, regardless of the scope of the interpretation given by the Court of Cassation to Articles 2935 and 2947 of the Civil Code, the issues that are submitted to this Court concern only the perceived constitutional illegitimacy of a sector provision that identifies, in the moment of filing of the audit report, the dies a quo for asserting the credit claims relating to the specific liability actions against auditors.

8.– To carry out such an assessment, it is necessary to proceed from the consideration that the discipline concerning the day from which the limitation period runs for asserting the right to compensation for damages poses a problem of balancing two opposing interests.

On the one hand, there is the interest of the injuring party in asserting an objection (that of limitation) which, with the passing of time combined with the inertia of the counterparty, frees it from any binding obligation, relieving it of the burden of a defense that, otherwise, would be focused primarily on the non-existence of the prerequisites of liability, from which the compensation obligation arises. And this, after some time, may prove to be not easy. This interest, of a private nature, related to a need for defense, pushes towards an objective and certain dies a quo, and is connected, at the same time, to the public need to ensure legal certainty.

On the other hand, there is the interest of the injured party in asserting its right to compensation for damages, without suffering the preclusive effect of the limitation period, except in the face of its own inertia: such a need invokes, conversely, a dies a quo related to the "de facto" possibility of asserting the right, that is, to the knowability of the damage and of the causal link.

The opposing interests do not easily come together, so much so that in the legal experience of other legal systems (including the German one with paragraphs 195 and 199 of the Bürgerliches Gesetzbuch – also applicable to liability actions against auditors following the reform of 1 December 2003 – and French law with Articles 2224 and 2232, first paragraph, of the Civil Code), as well as in some solutions also adopted by the national legislator, the combination of two terms is envisaged: one, shorter, which responds to the reasons of the injured party and which runs from the moment in which the latter can "de facto" exercise the claim for compensation, being in a position to know all the compensable damages and their causal connection with the tort; and a longer term, which definitively inhibits the exercise of the right, responding to the reasons of the injuring party and to that of legal certainty, and which runs from the harmful event producing damages, as an objective and certain dies a quo.

Consider, in domestic law, the discipline dictated in the matter of producer's liability (Articles 125 and 126 of Legislative Decree No. 206 of 6 September 2005, containing the "Consumer Code, pursuant to Article 7 of Law No. 229 of 29 July 2003"), according to which "[t]he right to compensation is time-barred within three years from the day on which the injured party had or should have had knowledge of the damage, the defect and the identity of the liable party" (or, in the event of aggravation of the damage, from the day on which the injured party "had or should have had knowledge of a damage of sufficient gravity to justify the exercise of a legal action": respectively, Article 125, paragraphs 1 and 2), without prejudice to the fact that "[t]he right to compensation is extinguished at the expiration of ten years from the day on which the producer or importer in the European Union has placed on the market the product that has caused the damage" (Article 126, paragraph 1, Consumer Code). A similar discipline is found, in the matter of nuclear torts, in Article 23 of Law No. 1860 of 31 December 1962 (Peaceful Use of Nuclear Energy).

On the other hand, the regulations on liability deriving from the information provided in a prospectus, as provided for by Article 94, paragraph 9, of Legislative Decree No. 58 of 24 February 1998 (Consolidated Law on provisions on financial intermediation, pursuant to Articles 8 and 21 of Law No. 52 of 6 February 1996), according to which "[t]he compensation actions are exercised within five years from the publication of the prospectus, unless the investor proves that he has discovered the falsities of the information or the omissions in the two years preceding the exercise of the action", are limited to juxtaposing the two interests.

Well, outside of the cases in which the legislator manages to combine (and not juxtapose) the two different interests, resorting to the combination of two terms (often variously qualified, one as a forfeiture period, the other as a limitation period), it is, conversely, inevitable that, with the provision of a single term, the identification of the dies a quo moves, depending on the case, more in favor of one or the other interest.

From this perspective, the interpretation that the established law has given to Article 2947 of the Civil Code, in conjunction with Article 2935 of the Civil Code – with regard to certain compensation events, which have originated above all from long-latent personal injuries (ex plurimis, Court of Cassation, third civil section, order 29 January 2024, No. 2725; judgment 17 February 2023, No. 5119; judgment 2 September 2022, No. 25887), but which have also affected other areas (for an extension to anti-competitive torts, Court of