by Francesco Machina Grifeo
In a judgment of legitimacy intended to accumulate the claims of individual subjects distinct from each other, the objection proposed with exclusive regard to the position of some can be considered admissible if the individual interested in the specific point addressed by the appeal are identified
Yet another cold shower for a hundred Neapolitan investors (current applicants) who in the 1990s lost their savings following the “financial distraction operations” (for about 200 billion lire) implemented by the brokerage firm “Profession and Finance” and of the stockbroker Guido de Asmundis. After an initial sentence by Consob to pay compensation of approximately 14 million euros for “lack of supervision“, the Court of Appeal of Rome and the Supreme Court, with sentence n. 30734 filed todayfirst downsized and then definitively shelved investors’ hopes.
In November 2020, the Capitoline college, as referring judge, in total reform of the first instance decision, after excluding the existence of recoverable damages in favor of the plaintiffs who had invested before July 1994 (threshold date for Consob’s omissive responsibilities) rejected all the claims of the remaining plaintiffs, deeming that they “had not provided any adequate demonstration of the damages suffered, nor in terms of the actual payment of sums into the hands of stockbrokers unfaithful, nor, in any case, in relation to the traceability, of such possible payments, to the time frame identified for the purpose of recognizing the omission responsibility of Consob”. Having filed an appeal, the Supreme Court declared it inadmissible because it was totally lacking in distinguishing the different positions of savers.
For the Supreme Court, the multi-subjective dimension of the procedural initiative (and the diversified treatment of the individual instances), necessarily required “the preliminary acquittal, by today’s appellants, of a burden of prior identification of individual investors specifically affected by the temporal partition made by the referring judge and this, for the specific purpose of differentiating their procedural position with respect to the other spouses in the dispute in order to attest to the actual use of an interest of their own in the filing of the appeal; interest inescapably verifiable only through the necessary allegation of the specific constitutive facts attributable to the respective claims for damages of each individual appellant”.
On the contrary, the Cassation continues, in the present case, the appeal “is totally lacking in the express indication of names of the appellants specifically interested in the finding of the harmful nature of Consob’s omissions referring to investments made prior to July 1994, since it must be considered undoubted that only some (and not all) of the appellants were interested in said particular finding”. ” In the same way, and conversely – he concludes – the argumentative development of today’s appeal is totally lacking in terms of subjective identification with regard to the individual appellants specifically interested in the issue of the extendibility of the referral judgment to the issue of proof of damages suffered by investors in connection with investment operations after July 1994“.
Thus reconstructed the picture, the Cassation affirmed a new one principle of law by virtue of which, “in a judgment of legitimacy intended to accumulate the claims of individual subjects distinct from each other, the objection proposed with exclusive regard to the position of some of them, in so far as it can be considered admissible, insofar as the appeal takes care to proceed toidentification of the individuals concerned to the specific point invested by the appeal, given that the possible cassation of the contested sentence, necessarily having to involve it in relation to the position of only some of the appellants, cannot reasonably be pronounced in the absence of a relative precise subjective identificationor through their identification per relationem (i.e. through a generic reference to the results of the proceedings on the merits), the inevitable procession of uncertainties and further artificial contrasts that can be generated by the pronouncement of a cassation sentence whose effects should be determined aliunde”. “Nor, on the other hand – concludes the Court -, does it appear reasonably possible to attribute, to the duties of the judge of legitimacy, the cduty to seek itself in the acts of the judgment on the merits (although received in compliance with Article 369 of the Code of Civil Procedure) the name of the applicants interested in the reason”.