Recognition of a Danish monetary penalty in employment matters and public policy

The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.