The direct action provided by Article 7ter of Italian Legislative Decree no. 286/2005 could be declared unconstitutional. The article gives the sub-carrier who has not received the payment of the carriage charges the right to act against all those who ordered the carriage.
The issue of the constitutionality of Article 7ter was raised by the Court of Grosseto through an order dated 3rd June 2016, due to the plea aimed at demonstrating the contrast between Article 7ter and the second paragraph of Article 77 of the Italian Constitution. In particular, the Court observed that the rule appeared to be disconnected from the contents of Decree Law no. 103/2010, regarding the need to ensure the regularity of the public maritime transport service and that consequently it lacked a functional interrelational link with the original provisions of the aforementioned Decree Law. The question was thus referred to the Constitutional Court.
If Article 7ter were declared unconstitutional, a protection instrument that has been used profitably by many carriers over the last few years would be lost and there would be considerable repercussions on the numerous disputes pending between sub-carriers and principals.
(Massimo Campailla and Federico Tassinari – Contact: massimo.campailla@studiozunarelli.com; federico.tassinari@studiozunarelli.com)
