Il difficile dialogo tra Corte di giustizia dell’Unione europea e giudice interno in tema di decorrenza del termine di prescrizione

The Time-Limit Prescription: A Difficult Dialogue between the Court of Justice of the European Union and the National Judge This article aims to underline the uncertainties and ambiguities surrounding the application of European Court’s case law principles into the national legal system. More specifically, the issue of the time-limits for bringing an action based on EC/ EU law in a domestic court is an emblematic example of how different could be the judicial protection of individual rights in the Member States, and how difficult could be “to transfer” the addresses marked by the Court of Justice in national codes. 71 Cass., sez. lavoro, sentenza dell’8 febbraio 2012, n. 1850. Il difficile dialogo in tema di decorrenza del termine di prescrizione 83 In its first part the article points out the efforts of the ECJ in balancing the rules of national procedural laws (the so called principle of procedural autonomy of Member States) with the effectiveness of European Union law. Therefore it illustrates the origin and evolution of case law on time limit prescription starting from the Emmott case up to Danske Slagterier. In the second part the article deals with the national limitation periods applicable to claims based on Directives not fully implemented before the Italian courts: the case that led to a paradigm of uncertainty of interpretations (on the issue of the limitation period) of EU law is related to the Italian medical trainees. The main problem has been the exact classification of the legal basis of the State’s responsibility for late or non-faithful transposition of the Directive referred to medical trainees: at the beginning the Italian Supreme Court 7630/2003 addressed the responsibility under Article 2043 of the Italian civil code (with the consequent application of the limitation period of five years for claims). Then starting from the judgment of Cassazione 9147/ 2009, up to the most recent decisions Cassazione 17350/2011, and Cassazione 10813/2011 the State’s responsibility (for late or non-faithful transposition of the Directive) has been described as contractual liability (with the consequent application for claims of the limitation period of ten years). Finally it is remarked that all the efforts of the Italian courts to achieve a reasonable balance with the rulings of ECJ have been wiped out by law no. 183/2011 (the so-called Law of Stability, of November 12, 2011): under Article 43 it is stated that “the prescription of the right to compensation for damage caused by failure to transpose into the State the Directives or other binding European measures follows the rules laid down in Article 2947 of the Civil Code” (it means the application for claims of a limitation period of five years). All the reasons that make the provision atypical are illustrated in this article