January 16 2026

Conflict between mortgages and criminal sequestration: the Joint Sections of the Supreme Court provide clarity

The Joint Sections of the Supreme Court, in judgment No. 34681 of 29 December 2025, have resolved a longstanding conflict concerning the priority between a voluntary mortgage (ipoteca volontaria) and a special statutory lien (privilegio speciale immobiliare) arising from criminal sequestration under Art. 316, para. 4 of the Code of Criminal Procedure.

The Court ruled that, given the "transcriptional" nature of the criminal lien, the absolute priority rule under Art. 2748 of the Civil Code does not apply. Instead, the principle of priority in time (prior in tempore, potior in jure) prevails. Consequently, a debt secured by a voluntary mortgage must be satisfied in preference to a claim for criminal damages if the mortgage was registered prior to the transcription of the sequestration.

This landmark decision aligns with established precedents regarding preliminary contracts, bolstering legal certainty and the stability of secured interests for credit institutions within concurrent enforcement proceedings.

Factual Background and Regulatory Framework

The case originated from real estate enforcement proceedings involving two competing claims:

A bank holding a voluntary mortgage securing a land-purchase loan (mutuo fondiario), registered in 2003.
An assignee of a claim for damages arising from a criminal conviction for manslaughter, secured by a criminal conservatory sequestration (sequestro conservativo) transcribed only in 2012.

The core legal issue centered on the interpretation of Art. 316, para. 4 C.P.P., which grants claims for damages secured by sequestration the status of a "privileged debt" (credito privilegiato) over immovable property. The appellant argued that such a lien, pursuant to Art. 2748, para. 2 of the Civil Code, should automatically take precedence over a mortgage, regardless of the date of registration.

Legal Question Before the Court

The Supreme Court was tasked with determining whether the general principle—whereby special liens prevail over mortgages—applies to criminal sequestration, or whether a different statutory interpretation is required.

The referring order raised questions as to whether the principles established by the United Sections in 2009 regarding the liens of prospective purchasers (promissari acquirenti) should be extended here. Furthermore, it considered whether the "public policy" nature and the enhanced protection of crime victims—supported by EU directives—could justify a reversal of the temporal priority rule in favour of criminal-related claims.

The Ruling: Priority of Registration

The United Sections dismissed the appeal, confirming the seniority of the prior mortgage. The Court clarified that the lien arising from criminal sequestration is "registration-based" (natura trascrizionale): the preferential status does not arise automatically by operation of law due to the nature of the debt, but requires a specific formal act of public registration.

According to the Supreme Court, for this category of "registration-based liens," the rule of absolute prevalence does not apply. In the absence of a specific statutory derogation, a mortgage registered before the transcription of the criminal sequestration maintains its priority in the distribution of proceeds from the judicial sale.

Practical Implications for the Banking and Recovery Sector

This judgment is of paramount importance for financial institutions and debt recovery professionals for the following reasons:

Protection of Secured Interests: It confirms that lenders can rely on the order of registration (public records), without the risk of subsequent liens "leapfrogging" established mortgages.
Clarification of Land-Purchase Loans: It clarifies that while mutuo fondiario credit does not constitute a "lien" in the strict technical sense, it benefits from a first-grade mortgage and a "procedural privilege" relevant in insolvency scenarios.
Uniformity of Distribution Criteria: It harmonises the regime for criminal-related claims with other forms of registration-based liens, preventing asymmetries in the system of statutory priorities (cause di prelazione).

Unsuitable premises and the right to refuse work: legal protections against retaliatory dismissal

The Supreme Court of Cassation, with ordinance no. 3145 of February 12, 2026, has upheld the nullity of a dismissal issued to an employee who refused to work in premises that were unsuitable and hazardous to health. The ruling clarifies that refusing to perform professional duties constitutes a legitimate exercise of the "exception of non-performance" (Art. 1460 c.c.) when the employer breaches their fundamental safety obligations under Art. 2087 of the Civil Code. Regarding the burden of proof, the Court established that while the worker must only allege the existence of a risk, the employer must demonstrate the actual suitability of the work environment. This decision reinforces protections against retaliatory termination by identifying dismissals based on absences provoked by the employer's own failure to provide safe working conditions as null and void.

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February 19 2026

Disciplinary dismissal: reinstatement for legally irrelevant conduct

The Court of Modena, with ruling no. 56 of January 9, 2026, addressed the issue of disciplinary dismissal under the "increasing protections" regime (Jobs Act), establishing a pivotal principle for employee protection. The judgment clarifies that reinstatement protection (tutela reintegratoria) applies not only when the alleged misconduct did not historically occur, but also when the contested fact lacks any disciplinary relevance. In this specific case, informal communications with clients, not barred by explicit company directives, were found insufficient to support a dismissal for cause. The judge identified a substantive defect, affirming that the absence of severity and the lack of proportionality between the sanction and the charge lead to the annulment of the dismissal and the restoration of the employment relationship. This decision underscores that the "non-existence of the material fact" must be interpreted in a legal sense, ensuring reinstatement whenever the conduct is harmless or falls outside the disciplinary scope defined by the National Collective Labor Agreement (CCNL).

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February 17 2026

Higher Duties and Job Classification: Supreme Court Ruling 1212/2026

The Supreme Court, with Ordinance No. 1212 of January 20, 2026, has reaffirmed the strict methodological requirements for recognizing higher duties and the corresponding salary differentials. The Court clarified that trial judges cannot rely solely on witness testimony but must apply the "three-phase procedure." This process requires a factual assessment of the duties performed, an analysis of the National Collective Labour Agreement (CCNL) classifications, and a precise comparison between the two. The ruling emphasizes that the absence of such a comparative analysis results in a failure to prove the right to a higher job classification, leading to the appeal being upheld in favor of the employer. This principle serves as a key benchmark for managing litigation regarding professional grading and reclassification.

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