View source for Corte di Cassazione - 18168

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|Court_With_Country=Cass.Civ. (Italy)

|Case_Number_Name=18168
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|Original_Source_Name_1=Corte di Cassazione
|Original_Source_Link_1=https://www.italgiure.giustizia.it/xway/application/nif/clean/hc.dll?verbo=attach&db=snciv&id=./20230626/snciv@sL0@a2023@n18168@tS.clean.pdf
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|Date_Decided=08.06.2023
|Date_Published=26.06.2023
|Year=2023

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|National_Law_Name_1=Article 113 of the Codice in Materia di Protezione dei Dati Personali
|National_Law_Link_1=https://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9042678
|National_Law_Name_2=Article 114 of the Codice in Materia di Protezione dei Dati Personali
|National_Law_Link_2=https://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9042678
|National_Law_Name_3=Article 130 of the Codice in Materia di Protezione dei Dati Personali
|National_Law_Link_3=https://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9042678
|National_Law_Name_4=Article 2 of the Statuti dei Lavoratori
|National_Law_Link_4=https://www.cgil.unimi.it/wp-content/uploads/2014/01/l_300_70.pdf
|National_Law_Name_5=Article 3 of the Statuti dei Lavoratori
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|National_Law_Name_6=Article 4 of the Statuti dei Lavoratori
|National_Law_Link_6=https://www.cgil.unimi.it/wp-content/uploads/2014/01/l_300_70.pdf
|National_Law_Name_7=Article 8 ECHR
|National_Law_Link_7=https://www.echr.coe.int/documents/d/echr/convention_ENG
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|Party_Name_1=Banca Widiba S.P.A.
|Party_Link_1=
|Party_Name_2=Ex-Manager
|Party_Link_2=
|Party_Name_3=
|Party_Link_3=
|Party_Name_4=
|Party_Link_4=

|Appeal_From_Body=Corte di Appello di Milano
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The Italian Supreme Court upheld the ruling of the Court of Appeal of Milan, which found the dismissal of an employee by an Italian bank illegitimate due to unlawful monitoring of company e-mails and tailing.

== English Summary ==

=== Facts ===
The judgement of the Court of Appeal of Milan was appealed following its confirmation of the ruling of the Court of First Instance, which had established the illegitimacy of the dismissal of a manager (the defendant) by Banca Widiba Spa (the applicant) on 8 May 2018.

The defendant was fired due to conduct of insubordination and breach of the duties of diligence and loyalty as well as of the general principles of fairness and good faith for having relations with competing businesses and for having avoided a preventive technical assessment, causing doubts over the genuineness of the illness underlying his many absences.

The Court of Appeal, agreeing with the Court of First Instance, ruled the illegitimacy of the first two disciplinary charges as they were the result of investigative monitoring of company e-mails and tailing, which did not ensure the proportionality and procedural guarantees against arbitrariness of the employer and lacked justification for such invasive monitoring, violating the right of the worker’s right to respect for his correspondence. 

The applicant filed for an appeal against the decision to the Supreme Court of Cassation (Supreme Court).

=== Holding ===
The Supreme Court established an infringement of [https://www.cgil.unimi.it/wp-content/uploads/2014/01/l_300_70.pdf Article 2 of the Italian Worker’s Statute], [https://www.cgil.unimi.it/wp-content/uploads/2014/01/l_300_70.pdf Article 3 of the Italian Worker’s Statute] and [https://www.cgil.unimi.it/wp-content/uploads/2014/01/l_300_70.pdf Article 4 of the Italian Worker’s Statute] and [https://www.echr.coe.int/documents/d/echr/convention_ENG Article 113 of the Italian Privacy Code], [https://www.echr.coe.int/documents/d/echr/convention_ENG Article 114 of the Italian Privacy Code] and [https://www.echr.coe.int/documents/d/echr/convention_ENG Article 160 of the Italian Privacy Code] in connection with the protection of the confidentiality of the employee, [https://www.echr.coe.int/documents/d/echr/convention_ENG Article 8 ECHR], and based on the set of principles expressed in the Privacy Code and the GDPR, specifically those of data minimisation, proportionality, purpose limitation, transparency and fairness. 

The Supreme Court stated that it is necessary to ensure a proper balance between the requirements of the protection of corporate interests and assets related to the freedom of economic initiative and the protection of the dignity and privacy of the worker, depending on the circumstances of the claim.

In this case, the Supreme Court ruled that the monitoring of all the communications on the defendant’s company laptop was unjustified as it was indiscriminate, unbounded and because the applicant did not inform the defendant of the possible monitoring of his company laptop’s communications or the nature and extent of the monitoring.

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the Italian original. Please refer to the Italian original for more details.

<pre>
Civil Sent. Section L Num. 18168 Year 2023
   President: RAIMONDI GUIDO
   Speaker: AMENDOLA FABRIZIO
                                                           Object
   Publication date: 06/26/2023
                                                             ART. 4 WORKSTATION
                                                               CONTROLS
                                                               DEFENSIVE
                                                              DISTRIBUTION
                                                                 CHARGES e
                                                              ALLEGATION AND others
                                                                 TRY i
                                                                               the
                                                           R.G.N. 25834/2021 f
                                                                               u
                                                           Chron. n
                                                                               n
                                                           Rep. a
                                                                               p
                                                           Ud. 06/08/2023 or
                                                                               c
                                                           PU -
                                                                               n
                                                                               or
                                                                               z
                         JUDGMENT a
on appeal 25834-2021 proposed by: s
BANCA WIDIBA S.P.A., in the person of the legal representative a
pro tempore, electively domiciled in ROME, VIALE i
                                                                               d
CARSO N. 71, at the office of the lawyer NICOLA e
PAGNOTTA, who represents and defends it together with r
to the lawyer CLAUDIO MORPURGO; or
                                            - appellant - C

                          against
GIACOMELLI MASSIMO, electively domiciled in ROME,
VIA DELLA CONCILIAZIONE N. 10, at the STUDIO
TOFFOLETTO DE LUCA TAMAJO & SOCI, represented and defended

by the lawyers RAFFAELE DE LUCA TAMAJO, FEDERICA
PATERNO', FRANCO TOFFOLETTO, ANNARITA AMMIRATI;
                                      - counter-appellant - against sentence no. 518/2021 of the COURT OF APPEAL of

MILAN, filed on 05/08/2021 R.G.N. 1209/2019;
having heard the report of the case carried out in the public
hearing of 06/08/2023 by the Councilor Dr. FABRIZIO
AMENDOLA;

the PM in the person of the Deputy Prosecutor Dr. RITA
SANLORENZO having seen the art. 23, paragraph 8 bis of the Legislative Decree. 28
October 2020 n. 137, converted with modifications in

law 18 December 2020 n. 176, filed conclusions
written. L
                      FACTS OF THE CASE i
                                                                               c
                                                                               the
1. The Court of Appeal of Milan, with sentence u
contested, confirmed the first instance ruling, with
whose illegitimacy had been ascertained
                                                                               n
dismissal, ordered by Banca Widiba Spa to the manager a
Massimo Giacomelli on 8 May 2018, with conviction of p
of the company to the payment of sums by way of compensation or
                                                                               c
in lieu of notice, additional indemnity, -
entitlements for impact on severance pay, plus interest and no
monetary revaluation. or
                                                                               z
2. The Territorial Court recalled that the a
dismissal followed three complaints s
regulations of 1.2.2018, 7.2.2018 and 3.5.2018, to
with which the worker was charged "a C
                                                                               d
conduct of insubordination and breach of duties
of diligence and loyalty as well as the general principles of r
correctness and good faith for having maintained relationships or
                                                                               C
and contacts with subjects related to reality
competing businesses (first and second
dispute) and for evading an investigation

preventive technical, thus raising doubts about the authenticity
of the illness underlying the absences (third
dispute)".
The Milanese Court highlighted that the first judge,

given that the evidence relating to the facts

                                2subject of the first two disciplinary complaints were

were collected following investigative activities by
control of company email, so-called. “digital
forensics”, and stalking, he had considered

illegitimacy "due to total lack of allegations in
order to the reason that had determined such a vast
investigative activities as well as, with specific reference

to the digital forensics activity, for the failure
prior acquisition of consent by the
worker checking company email e
                                                                               to
as prescribed by the company regulation [...], which between c
the other was not even made aware of the i
worker nor signed by him for f
                                                                               u
acceptance". n
3. In the face of the appeal proposed by the company, no
the Territorial Court held, recalling
                                                                               the
jurisprudence of legitimacy and of the European Court of p
human rights, which, in the case in question, were not c
"proportionality and guarantees were guaranteed -
procedures against the arbitrariness of the employer". And
                                                                               n
First of all, the "justification of the i
monitoring”, as the company had not “deducted either z
much less proved anything regarding the reasons behind it
                                                                               to
led to such an invasive investigation”; omission that does not C
could be filled “through the reasons that have i
justified the investigative task reported in the d
                                                                               And
report", especially as in the investigative dossier, on r
justification of the assignment, reference was made to o
"substantiated reports", however of which in the documents are not C

there was no trace, nor could “mere suspicions” be enough.
Furthermore, monitoring – as ascertained by the
Court – had concerned “all the

communications present on the company PC in use a
Giacomelli Massimo and without time limits, giving life
thus to a massive and indiscriminate invasive investigation

not justified”, with a violation of the right of

                                3worker to respect his correspondence again

more evident considering that “the company hasn't tried
to have previously informed the worker of the

possibility that the communications he carried out on the PC
company could have been monitored nor of the
character and extent of monitoring or level

of invasiveness in his correspondence".
The Milanese Court then recognized "the same absence
of a specific justification

of the investigative activity, resulting in law
illegitimacy of the activity itself, [...] even with i
                                                                               c
reference to shadowing activity, compared to i
which the company did not even file the u
assignment of the task", noting, among other things,
                                                                               or
“how the meetings described in the report find n
from the perspective of society, as set out in the a
disciplinary disputes, an explanation of them only i
                                                                               or
in light of the correspondence which, as above c
highlighted, was acquired illegitimately, with the -
consequent unusability of the dossier too e
                                                                               n
investigation relating to stalking".                                        the
4. Having regard to the "conducts referred to in points b), c), z
                                                                               s
d) of the disciplinary complaint of 1.2.2018", the
Territorial Court, noting that actually not a
were the subject of the investigative dossiers before C
                                                                               d
examined, it however excluded the “relevance and
disciplinary". r
5. Regarding the reason for appeal with which the company censured o
                                                                               C
the assumption of the Court which it had also held
violated the art. 7 of the law. n. 300 of 1970 for failure

oral hearing of the worker who requested it, the
Court reasoned that “the company had complied with the
postponement of the hearing due to the conditions

of the worker's health and had expressly
communicated to the latter that the hearing would take place
carried out at the end of the period of illness or otherwise


                                4as soon as the worker had communicated his opinion

availability". He could therefore not operate in the case in
examine the jurisprudential orientation invoked by the
society, orientation according to which it weighs on

worker the burden of proving that their
health conditions are actually incompatible
with the completion of the oral hearing.

6. Finally, regarding the complaint with which the company
complained, in reference to the illegitimacy of the third
dispute dated 3.5.2018, which the first judge "is not
                                                                               to
had considered a series of elements deduced from the c
companies capable of demonstrating the non-genuineness of the f
worker's illness", the Court recalled the
                                                                               u
jurisprudential principle according to which assessment no
preventive technical ex art. 445 bis c.p.c. however it cannot n
be used to allow the employer to
                                                                               the
monitor the health status of its employees. p
7. For the cassation of this sentence he filed an appeal c
the losing company with four reasons; he resisted -
the defendant lodged a counter-appeal. And
                                                                               n
The Attorney General filed a written statement, i
concluding that the appeal is rejected. z
The appellant has communicated a statement pursuant to art. 378 BC
                                                                               to
c.p.c. C
                 REASONS FOR THE DECISION i
                                                                               d
                                                                               And
1. The first ground of appeal reports: “Violation and/or r
false application of the articles. 2, 3 and 4 of Law 20 o
May 1970, n. 300, as well as articles. 113, 114 and 160 C

of the Privacy Code, also in relation to art.
2697 cod. civil and to the articles. 115, 116, 421 and 427 cod. proc.
civil (art. 360, paragraph 1, n. 3, civil procedure code)”.

The Milan Court of Appeal is widely criticized for
having deemed the acquisition by. to be illegitimate
Widiba of the circumstances that emerged from the two dossiers

investigations commissioned and subject to disputes

                                5 disciplinary measures taken against Mr. Giacomelli respectively with

letter dated 1 February 2018 and 7 February 2018.
It is objected that the employer can, “even against

of mere suspicion and the need, therefore, to avoid the
carrying out illicit conduct, carrying out
checks, also through investigative agencies,

aimed at ascertaining the behavior of the lender
illicit and harmful to heritage and image
corporate", as these control methods -

attributable to the area of the so-called “defensive controls in l
strict sense” – remain outside the scope of i
                                                                               c
application of the guarantees referred to in art. 4 of f
Workers' Statute. u
It is argued that, also due to "mere suspicion" or
                                                                               or
of the "mere hypothesis" that "illegal acts could have been in n
course of execution (also considered the sector of a
activity)” you could “legitimately have your i checked
                                                                               or
employee's company email for purposes c
defensive". -
2. The reason is unfounded like the most recent ones and
                                                                               n
jurisprudential arrests on the matter (see Cass. no. 25732 i
of 2021; next conf. Cass. n. 34092 of 2021) that z
                                                                               to
must be reiterated here. s
2.1. This Court, called to rule on the a
question of nomophylactic importance regarding compatibility C
                                                                               d
some CD. "defensive checks" (ab imo v. Cass. n. 4746 e
of 2002) with the modification of the art. 4 of the Statute of the r
workers brought by the art. 23 of Legislative Decree no. 151 of 2015 or
                                                                               C
and subsequent additions, stated principles that
can be summarized as follows (referring

for the relative argumentative support to the previous ones
also referred to pursuant to art. 118 avail. att.
c.p.c.).

It is necessary to distinguish, also for convenience of summary
report, “among the checks to protect the assets
corporate that concern all employees (or groups of


                                6employees) in carrying out their duties

work that puts them in contact with this heritage,
checks that must necessarily be carried out
in compliance with the provisions of the art. 4 novel in

all its aspects and 'defensive controls' in the sense
narrow, aimed at specifically ascertaining conduct
unlawful attributable - based on concrete evidence - to

individual employees, even if this occurs during
work performance"; these last "checks,
even if carried out with technological tools, not having e
                                                                               to
the normal activity of the worker", yes c
are located, even today, “outside the perimeter f
application of the art. 4" (Cass. no. 25732/2021 cit., points
                                                                               u
31 and 32). n
In order not to have as its object an "activity - in the technical sense - n
of the worker", the "defensive" control in the sense
                                                                               the
narrow” must be “targeted” and “implemented ex post”, i.e. e.g
“following the illicit behavior of one or more c
workers whose completion the employer has -
had a well-founded suspicion", because only starting "from e
                                                                               n
that moment" the employer can arrange for the collection of i
usable information (Cass. n. 25732/2021 cit., z
points 40 and 44). to
                                                                               to
However, even "in the presence of a suspicion of C
illicit", it will be necessary, in compliance with the regulations at i
protection of the worker's confidentiality, and in particular d
                                                                               And
of the art. 8 of the European Convention on Rights r
of man as interpreted by the jurisprudence of the o
ECtHR, “ensure a correct balance between the C

needs to protect company interests and assets,
related to freedom of economic initiative, respect
to the essential protections of dignity and safety

confidentiality of the worker, with a balance that
cannot ignore the circumstances of the specific case"
(Cass. no. 25732/2021 cit., points 36 and 38, in which it is

recalls Cass. n. 26682 of 2017).

                                7The three profiles are summarized in the final principle of

law which states: "Checks are permitted
including technological ones implemented by the employer
aimed at protecting assets unrelated to the relationship of

work or to avoid illicit behavior, in presence
of a well-founded suspicion regarding the commission of a
illicit, provided that a correct balance is ensured

between the needs of protection of interests and assets
corporate, related to freedom of initiative
                                                                               And
economic, compared to the essential protections of the law
dignity and confidentiality of the worker, provided that i
the control concerns data acquired subsequently i
                                                                               f
at the onset of suspicion" (Cass. n. 25732/2021 cit., u
point 51). n
2.2. Having brought the dispute to the attention of the o
                                                                               n
College, in which the appellant company invokes the i
existence of a "defensive control in the strict sense" p
on the employee's work computer, comes in or
                                                                               c
I particularly note the distribution of burdens -
procedures for allegation and proof regarding the no
elements of fact from which the “well-founded or
                                                                               z
suspicion” which legitimizes this type of control. to
There can be no doubt that the burden rests on the employer
to first attach and then prove the specific circumstances to
                                                                               C
which led him to activate technological control i
ex post, considering that only this "well-founded suspicion" d
allows the employer to place his action beyond t
                                                                               r
outside the scope of direct application of the art. 4 or
Work St. and also taking into account the more general criterion C
legal pursuant to art. 5 l. n. 604 of 1966 which burdens the party

employer of the burden of proving all the facts
elements that justify the dismissal.
Nor can the so-called “principle of proximity of

proof”, defined, as is known, by Cass. SS.UU. n. 13533 of
2001, as that criterion for which the burden of proof must

be “distributed taking into account, in concrete terms, the

                                8possibility for one or the other subject to try

facts and circumstances that fall within their respective spheres
of action”, with the clarification that proximity concerns
the possibility of knowing directly or indirectly the
done, and not the concrete possibility of acquiring the

relevant evidence (most recently see Cass. n. 12910 of 2022).
Therefore it would be detrimental to the right of action and defense of the
worker to place a heavy burden on him with respect to the facts

outside his sphere of knowledge, while the giver
of work is easily placed in the condition of l
identify them, as in its availability and to the i
                                                                               c
same closer and, therefore, more easily i
substantiable. u
Allegation and proof that must also concern
temporally placed circumstances, given that the same or
                                                                               n
mark the moment from which the data acquired a
can be used in disciplinary proceedings e.g
and, subsequently, in court, as it is not possible or
                                                                               c
the examination and analysis of information previously -
taken in violation of the provisions of art. n
4 Work St., extending the control area "dramatically".
                                                                               z
lawful defense (see Cass. n. 25732/2021 cit., point a
41), considering that it cannot be made retroactively s
behavior that was not lawful at the time in a
which he was held. C
                                                                               d
Once the elements that
the employer bases R's initiative as the basis
technological control, it will be up to the judge to evaluate, or
                                                                               C
through the appreciation of the circumstances of the case, if
the same were clues, material and recognizable, not
expression of a pure subjective belief, suitable

to materialize the well-founded suspicion of the commission
illicit behaviors. Because only the existence of
they constitute objective confirmation of authenticity
of the defensive intent of control, not direct,

therefore, to a general monitoring of the activity

                                9work of employees, but rather "targeted" to

ascertain prefigured conduct contra ius, not relevant
to the mere failure to fulfill the obligations deriving from
work performance.
2.3. Furthermore, the notion of "well-founded suspicion" is entrusted

to the concreteness of the judge of merit, it does not appear
foreign to the field of law.
The criminal procedure code, for example, allows

the interception of conversations between people present (art.
266, paragraph 2) even when they take place in the places of law
private residence in case i
                                                                               c
a well-founded suspicion that the activity is being carried out i
criminal (see Criminal Cassation no. 36770 of 2003) as well as the u
search “when there is reasonable reason to believe that
data, information, computer programs or traces or
                                                                               n
however relevant to the crime they are found in a system a
IT or telematic, even if protected by security measures
safety” (art. 247, paragraph 1-bis). or
                                                                               c
Even in the extra-criminal field, again by way of example, -
on the subject of tax controls, the Financial Office, n
in the phase of investigations aimed at ascertainment or
                                                                               z
of tax evasion by a company
capital, is entitled to request from the institutions s
banking access to bank accounts and deposits formally a
registered in the name of shareholders including non-directors and - in the case of C
                                                                               d
restricted shareholding structure - including accounts/deposits
registered in the name of their family members, if there are r
"well-founded suspicions" that the audited company has or
                                                                               C
participated in "subjectively" taxable transactions
non-existent aimed at evading value added tax
(see Supreme Court no. 12624 of 2012). So does the owner of

a trademark protected within the European Union
can oppose the mere transit through the EU territory of
products that you assume are counterfeit, unless you
demonstrate the existence of the well-founded suspicion you stated



                                10products are intended to be placed on the market
(see Cass. n. 22046 of 2016).
Precisely in the matter that occupies here, then, the

jurisprudence of the ECtHR (in the case López Ribalda e
others c. Spain, 17 October 2019) considered that

constitutes a legitimate justification for the control
“the existence of a reasonable suspicion regarding the

commission of offences”, while “it is not acceptable
position according to which even the slightest suspicion of
illicit appropriation can authorize and
                                                                               L
the installation of occult instruments of i
video surveillance". To “reasonable suspicion i
                                                                               f
of the existence of conduct harmful to foreign property u
to the fulfillment of the work obligation” yes n
also recalls Cass. n. 26682 of 2017 already cited. or
                                                                               n
2.4. The continued admissibility of employer controls a
of a defensive nature removed from the operations of the p
                                                                               or
regulation of the Workers' Statute, even after c
the entry into force of the new text of the art. 4, it is -
recognized by this Court also in criminal proceedings. And
                                                                               n
It was recently established that: “The i cannot be configured
violation of the regulations referred to in articles. 4 and 38 law z
                                                                               to
n. 300 of 1970 - still criminally sanctioned under s
of the art. 171 Legislative Decree no. 196 of 2003, as amended a
                                                                               C
by law n. 101 of 2018 - when the plant i
audiovisual or remote control, although installed d
in the workplace in the absence of agreement with the t
                                                                               r
legitimated or authorized trade union representatives or
of the Labor Inspectorate, is strictly functional C

to the protection of the company's assets, provided that its own
use does not imply significant control
on the ordinary conduct of the working activity of

employees or necessarily remains 'confidential' for
allow the detection of serious illicit conduct

of the same" (Cass. pen. n. 3255 of 2021).



                                11The Criminal Court of Cassation considers the observation persuasive,

also common to civil jurisprudence (see
Cass. n. 10636 of 2017), according to which no
would respond to any logical-systematic criteria

guarantee the worker - in the presence of conduct
offenses punishable by law - a protection for yours
more intense "person" than that recognized to third parties

outside the company.
Pronouncements adopted in force are referred to in support
previous text of the art. 4 Work St. (see Criminal Cassation n. e
                                                                               to
8042 of 2006), in addition to the jurisprudential elaboration c
on the subject of usability as evidence in criminal trials i
of the results of the video recordings carried out on the site of f
                                                                               u
work to protect company assets, in the absence of n
subject to agreement with the competent trade union representatives n
and with prior authorization from the Labor Inspectorate,
                                                                               the
according to which “they can be used in criminal proceedings, p
even if the employee is the accused, the c
results of video recordings taken with cameras -
installed inside the workplace by the e
                                                                               n
employer to exercise control to protect i
the company assets put at risk by possible z
unfaithful behavior of workers, as the rules a
                                                                               to
of the Workers' Statute placed to safeguard their C
confidentiality do not prohibit so-called controls i
defensive of the company's assets and do not justify d
                                                                               And
therefore the existence of an evidentiary prohibition" (see r
Cass. pen. n. 2890 of 2015; Cass. pen. n. 34842 of 2011; or
Cass. pen. n. 20722 of 2010). C

2.5. In the event that the employer fails to
provide evidence that the technological matrix data places
were the basis of the disciplinary procedure

legitimately acquired, the expected sanction
from the order it derives from the general prediction in
matter of privacy protection according to which “the data

personal data processed in violation of the regulations

                                12 relevant to the processing of personal data

cannot be used" (art. 11, paragraph 2, Legislative Decree
n. 196 of 2003, in the formulation in force at the time
facts).

The radical unusability of the information acquired
in violation of the regulations protecting the
worker confidentiality has already been affirmed by

this Court - having regard to the previous draft
of the art. 4 Work St. - in the case of data intended to prove
the employee's breach of contract at the office e
                                                                               to
disciplinary (see Cass. n. 19922 of 2016 and Cass. n. 16622 c
of 2012). the
In this case to the attention of the Board, the Court f
                                                                               u
territorial authority ascertained that the company had no
“inferred nor proven anything regarding the n
reasons" that had led to the investigation into the PC of the
                                                                               the
employee, there being no trace in the documents not even p
of "detailed reports" generically c
deduced in the investigative report. -
Therefore, in accordance with the principles expressed above, the e
                                                                               n
The Milanese court rejected the appeal with which i
the appellant, however, denied existing "at the head of the z
company no burden of allegation and/or proof in a
                                                                               to
relation to the 'justification' of one's C
determination to have investigations carried out against the i
own manager", with consequent declaration by d
                                                                               And
unusability of the data thus illegitimately acquired r
in order to justify the dismissal. or
2.6. The complaints against C are equally unfounded

part of the contested sentence which ruled as, in
case in question, were not even "guaranteed".
proportionality and procedural guarantees against

the arbitrariness of the employer", in particular with
reference to the violation of the obligations of
preventive information.



                                13In fact, this Court, in the arrest referred to in

debut, reaffirmed the principle according to which “in
no case can be justified a substantial
cancellation of any form of guarantee of dignity and

confidentiality of the worker" (Cass. n. 25732/2021 cit.,
point 37), ruling for the referring Court that, also
in the case of defensive control "in the strict sense"

lawful, it is however necessary to ensure correct
balancing the needs of protection of interests
and company assets, related to freedom of initiative e
                                                                               to
economic, compared to the essential protections of the c
dignity and confidentiality of the worker" f
(similarly see also Cass. n. 34092/2021, point 21.10).
                                                                               u
It is worth underlining that this comparison inspires a n
of the guiding principles and criteria of law no. 183 of n
2014 which, in art. 1, paragraph 7, letter. f), delegated the
                                                                               the
Government to the "revision of the control regulations on p
distance on systems and work tools, c
taking into account technological evolution and balancing -
the production and organizational needs of the company with e
                                                                               n
the protection of the dignity and privacy of the i
worker". z
Precisely on the basis of this delegation, the a was implemented
                                                                               to
reformulation of the art. 4 Work St. and it can well be said that C
the need to balance the interests of the worker i
to the protection of primary goods such as dignity and d
                                                                               And
confidentiality and the employer's interest in the r
protection of corporate assets and image o
weaves the fabric of the entire control discipline C

technological, also in the multilevel competition of sources
internal and supranational.
2.7. Such balancing is not without rules.

The relief that, for defensive controls in the sense
strictly, the special discipline dictated does not apply
from the art. 4 of the Statute, as amended, does not mean

that, where a treatment of

                                14 personal data of the worker, it is not necessary to respect the

general regulations foreseen for the protection of
any citizen by the Privacy Code, in force
at the time of the facts of the present case, and, starting

from 25 May 2018, by EU Regulation 2016/679 and by
same Code, as amended by Legislative Decree. lgs. n. 101/2018
entered into force on 19 September 2018.

If also in the case of remote controls implemented
in compliance with paragraphs 1 and 2 of the art. 4 St. lav., the
paragraph 3 of the same article demands "respect for e
                                                                               to
as provided by the legislative decree of 20 June 2003, c
n. 196”, would constitute an unjustified aporia of the f
system - which also has no legal basis - the taking away
                                                                               u
to the general regulation of data protection n
personal relationship between the worker and his employer. n
Therefore, the set of principles expressed in the Code
                                                                               the
of privacy and in the European Regulation 2016/679 p
(GDPR) must guide the judge in the delicate work of c
balancing and delimiting the boundary between -
the interest of the worker and the interest of the employer
                                                                               n
work, with a balance that cannot ignore i
from the appreciation of all the circumstances of the case z
concrete. to
                                                                               to
Even earlier, the same employer, in C
initiative aimed at implementing control for purposes i
defensive, is required to make a relative assessment d
                                                                               And
to the concrete impact on the personal sphere r
of workers, in accordance with the principles they regulate, or
for anyone, the methods of data processing C

personal.
Starting from the information duties envisaged by the art.
13 of the Privacy Code (in force at the time of the facts)

and (subsequently) by art. 13 of the European Regulation,
also an expression of the general principle of correctness
of the treatments, contained in the art. 11, paragraph 1, letter.



                                15a), of the Code and in art. 5, par. 1, letter. a) of

Regulation.
With respect to these duties, the derogation provided for by art.
13, paragraph 5, letter. b) of the Code, established

from the need to "enforce or defend a right in
judicial seat", has placed the condition that "the data
are processed exclusively for these purposes and for the

period strictly necessary for their pursuit".
According to the following art. 24, paragraph 1, letter. f), for
exclude the consent of the interested party, was requested by the e
                                                                               to
Code in force at the time that the treatment was c
“necessary for the purposes of carrying out the i
defensive investigations referred to in law 7 December f
                                                                               u
2000, no. 397, or, in any case, to assert or defend a n
right in court, provided that the data is no
processed exclusively for these purposes and for the
                                                                               the
period strictly necessary for their pursuit". p
Subsequently, the art. 6 par. 1, letter. f), of the Regulation has c
confirmed that one of the conditions of lawfulness of the -
treatment is represented by the fact that the same “is e
                                                                               n
necessary for the pursuit of legitimate interest i
of the data controller or third parties", but always "to z
provided that the interests or rights a
                                                                               to
and the fundamental freedoms of the interested party that require C
the protection of personal data". the
In any case, they guide in the evaluation of the case d
                                                                               And
concrete, the principles of minimization and r
proportionality, relevance and non-excess o
with respect to a legitimate purpose of transparency C

and correctness, which can be obtained from the Privacy Code and from
EU Regulation no. 2016/679.
2.8. The offered reconstruction of the regulatory framework e

jurisprudential appears consistent with jurisprudence
of the European Court of Human Rights, formed
on the art. 8 of the Convention, which not only protects

the individual against the arbitrary interference of authority

                                16public, but, on the positive side, requires the adoption of measures

aimed at effective respect for private life or
familiar even in relationships between private individuals. At the Court of

Strasbourg is responsible for verifying this in the light of the whole
of the findings of the case submitted to its examination, the
choosing appropriate measures to ensure compliance

of the art. 8, taking into account the margin of discretion
reserved for Contracting States.
This Court has already had the opportunity to point out how the thesis

of the survival of "defensive controls" you can find l
comfort in the jurisprudence of the ECtHR, citing i
                                                                               c
precisely the case of Lopez Ribalda and others v. Spain, decided i
by the Grand Chamber deeming the initiative legitimate u
employer's secret control of workers through
                                                                               or
video recording devices, powered by a n
“reasonable suspicion” regarding the commission of serious crimes
illicit, "as it is proportionate to the purpose (in i
                                                                               or
legitimate self) to protect the organizational interest c
professional of the employer" (Cass. n. 25732/2021 -
cit., point 35). And
                                                                               n
Even subsequently the Strasbourg Court moved i
in the same perspective, not finding the z
                                                                               to
violation of the art. 8 of the Convention in the Gramaxo case s
c. Portugal, decided by sectional ruling of 13th
December 2022, a case in which a worker had been C
                                                                               d
licensed on the basis of data collected by an e
geolocation installed on the vehicle that the employer
work had made available to him for the completion or
                                                                               C
of duties as a medical representative. In this case, yes
considered that the national jurisdictions

had adequately balanced the interests at stake,
on the one hand the appellant's right to respect for the
his private life and, on the other, his legitimate purpose

pursued by the company to control expenses
resulting from the use of the vehicles entrusted to you
employees, reaching the conclusion that the country


                                17contractor had not failed to fulfill his positive obligations
sanctioned by the art. 8 of the Convention.

This he did on the basis of the elements that the Court itself
EDU, starting from the case Bărbulescu v. Romania, in
Grand Chamber ruling of 5 September 2017, ha
indicated to national judges to evaluate the opposing parties
interests, so that it is guaranteed that "implementation by

part of the employer's surveillance measures which
violate the right to respect for private life
proportionate and accompanied by adequate and sufficient e
guarantees against abuse” (§ 120). to
                                                                               c
These elements, evidently also useful for orienting the f
balancing of the Italian judge in cases of controls u
defensive "in the strict sense", are: i) the information of the n
worker about the possibility that the employer or
                                                                               n
adopt monitoring measures, with the clarification that i
itself should, in principle, be clear p
on the nature of surveillance and be prior to c
its implementation; ii) the degree of invasiveness in the sphere -
privacy of employees, taking into account, in particular, e
                                                                               n
of the more or less private nature of the place where it takes place i
the monitoring of the spatial and temporal limits of a
the latter, as well as the number of people who have s
access to its results; iii) the existence of an a
                                                                               C
justification for the use of surveillance and its i
extension with legitimate reasons, with the clarification that d
the more intrusive the surveillance, the more serious r
are the justifications required; iv) the evaluation, in o
based on the specific circumstances of each case, if C

legitimate purpose pursued by the employer could
be achieved causing less invasion of life
private of the employee; v) verification of how the employer
of work has used the results of the measurement of

monitoring and whether they served to achieve the purpose
declared of the measure; vi) the offer of adequate
garrather to the employee on the degree of invasiveness of the


                                18surveillance measures, through information to

interested workers or staff representatives
about the implementation and extent of monitoring,

declaring the adoption of such a measure to a body
independently or through the possibility of presenting
complaint.

The ECtHR emphasizes that once the authorities
national governments have weighed up the interests at stake
according to the criteria established by jurisprudence

recalled, “serious reasons are needed for it to l
substitute his own judgment for that of the judges i
                                                                               c
internal” (see Gramaxo cit., § 110). the
2.9. Also for this reason, therefore, sentence u
contested does not deserve the criticisms leveled against it,
                                                                               or
having actually made an appreciation, precisely n
on the basis of conventional jurisprudence, “with a
reference to the nature and extent of surveillance i
                                                                               or
on the worker and the consequent degree of intrusion c
in his private life”; thus noted the lack -
of "monitoring justification", the existence of an e
                                                                               n
control which “concerned all i's without distinction
communications present on the company PC used by z
                                                                               to
Giacomelli Massimo and without time limits, giving life to s
thus to a massive and indiscriminate invasive investigation a
not justified", the absence of proof "of having C
                                                                               d
having previously informed the worker of the possibility e
that the communications he made on the company PC r
could have been monitored" or "of the character o
                                                                               C
and the extent of monitoring or level of
invasiveness in your correspondence”, failure to comply

by the Bank of Internal Regulations from
the same prepared for the use of mail
electronics.

This is a reasoned, engaging appreciation
substantive issues, as such removed from the union of
legitimacy of this Supreme Court.


                                193. With the second reason it is deduced: “Violation and/or false

application of the art. 2697 cod. civ., as well as garlic
art. 115, 116, 421 and 427 cod. proc. civil, also in
relation to the art. 2119 cod. civil and to the articles. 1362 c.c.

et seq. (art. 360, paragraph 1, n. 3, civil procedure code)”.
The contested sentence is criticized for having denied
disciplinary relevance to multiple circumstances

subject of charge with letter of dispute
disciplinary of 1 February 2018 and not based on the two
investigative files. It is argued that, differently and
                                                                               to
from what was argued by the Judge of Appeal, if it had been c
given entry to the necessary "in-depth investigation" f
elements would have emerged that were in themselves completely suitable for
                                                                               u
demonstrate the breach of the fiduciary bond. n
The reason is unacceptable. n
Despite the formal presentation of the complaint of a
                                                                               the
error of law, essentially criticizing p
the appreciation of merit of the Territorial Court in c
order to the absence of disciplinary relevance of the facts -
disputed in the charge, passing through e
                                                                               n
the invocation of "in-depth instruction" which, i
inevitably, they presuppose the request for a z
revisiting the historical facts that gave rise to
                                                                               to
to the controversy. C
The United Sections of this Court have repeatedly reiterated i
the inadmissibility of complaints that "under the apparent d
                                                                               And
deduction of the defect of violation and false application of r
law, of absolute lack of motivation and of omitted o
examination regarding a fact decisive for the judgment, degrade C

in reality towards the inadmissible request to this Court
of a reevaluation of the historical facts from which it originated
the action”, thus going beyond “the legal model of

reporting a defect attributable to art. 360 code
proc. civ., because it sets a different prerequisite
reconstruction of the merits of the events" (see Cass.



                                20SS.UU. n. 34476 of 2019; conf. Cass. SS.UU. n. 33373 of

2019; Cass. SS.UU. n. 25950 of 2020).
4. The third reason claims: “Failure to examine a fact
decisive for the judgment that was the subject of

discussion between the parties: failure to evaluate the
conduct of the parties in relation to
sustained violation of the art. 7 Stat. Work for the

failure to hear Mr. Giacomelli (art. 360, paragraph 1,
n. 5, cod. proc. civil)”. We regret the “total
neglect of the evidentiary material” on the point. And
                                                                               to
The reason is inadmissible for competing reasons. c
First of all, because it deduces the defect referred to in n. 5 i
of the art. 360 c.p.c. in a hypothesis precluded by f
                                                                               u
anniversary of a CD. “double compliant” (see art. 348 n
ter, last paragraph, c.p.c., hereinafter art. 360, paragraph 4, n
c.p.c., for the changes introduced by the art. 3, paragraphs 26
                                                                               the
and 27, d. lgs. n. 149 of 2022), without indicating the reasons p
in fact based, respectively, on the decision c
of first instance and the sentence rejecting the appeal, -
demonstrating that they are different from each other (see Cass. n. e
                                                                               n
26774 of 2016; conf. Cass. n. 20944 of 2019). the
In any case, this defect is reported outside of the z
fees imposed by the joint sections of this Court with the a
                                                                               to
decisions no. 8053 and 8054 of 2014. C
Finally, because once the non-existence of the i
charges, the dismissal is still illegitimate even d
                                                                               And
regardless of any further violation of r
disciplinary proceedings. or
5. With the fourth and final reason of appeal, the following is complained of: C

“Apparent Motivation. Violation and/or false application
of the art. 7 Stat. Lav., also in also in relation
to the art. 2697 cod. civil and to the articles. 115, 116, 421 and 427

code proc. civil, as well as articles. 1175 and 1375 cod. civil
(art. 360, paragraph 1, n. 3, civil procedure code)".
It is contested that the Judges of Appeal rejected the

fourth reason for censure advanced by the Company with

                                21 regarding the first instance sentence, where it came

a supposed illegitimacy of the dispute has been ascertained
disciplinary of 3 May 2018, recalling, without,

however, nothing to motivate in this regard, a precedent of
Court of Cassation regarding the employer's inability to
check, through the assessment tool

preventative technician, the state of infirmity of one's own
employees. It is stated that from the contents of the
disciplinary dispute recalled would emerge as

had been placed at the base of the same not the simple l
Giacomelli's refusal to undergo the ATP, but, i
                                                                               c
rather, “the overall behavior i
by the then manager, of whom the aforementioned refusal was u
only the last act, in defiance of the most basic canons
                                                                               or
of correctness and good faith pursuant to art. 1175 and 1375 cod. n
civil.”. to
This censorship is also unacceptable. the
                                                                               or
The contested reasoning certainly cannot be qualified c
as apparent. -
As is known, according to the sentences of the United Sections of e
                                                                               n
this Court first recall the motivational anomaly, i
implicating a constitutional violation of the law z
                                                                               to
relevant, integrates an error in proceeding which involves the s
nullity of the sentence only in the case of "lack of a
absolute of motifs under the material and graphic aspect", C
                                                                               d
of "apparent motivation", of "irreducible contrast and
between irreconcilable statements", of "motivation r
perplexed and objectively incomprehensible" (Cass. o
                                                                               C
SS.UU. no. 8053 and 8054 of 2014).
It was further specified that of “motivation

apparent” or of “perplexed and incomprehensible motivation”
it can be spoken where it does not make the "perceivable".
reasons for the decision, because it consists of

arguments objectively unsuitable for making known
the logical process followed for the formation of
conviction, so that it does not allow any


                                22effective control over the accuracy and logic of the

reasoning of the judge" (Cass. SS.UU. n. 22232 del
2016).
Which does not occur in this case as it certainly does
the motivational path is perceivable and intelligible

followed by the Territorial Court to reject the
encumbrance of the company, moreover in compliance with the
jurisprudence of legitimacy according to which the assessment
preventive technical, pursuant to art. 445 bis c.p.c., is expected

“to deflate social security litigation l
and certainly not to allow the employer to i
monitor the health status of its employees" i
                                                                               f
(Cass. n. 16251 of 2020). u
Furthermore, there are complaints of promiscuous violations of regulations no
substantive and procedural which, in essence, underlie or
a different interpretation of complaint no
                                                                               the
disciplinary, an interpretation which, instead, belongs to p
to the evaluation of the judge of merit (see Cass. n. c
13667 of 2018). -
6. Given the foregoing, the appeal must be e
                                                                               n
overall rejected, with costs regulated according to i
unsuccessful and liquidated as per the provisions. to
It is also necessary to acknowledge the existence of
                                                                               to
procedural prerequisites referred to in art. 13, co. 1c, C
Presidential Decree n. 115 of 2002, as amended by art. 1, co. the
17, l. n. 228 of 2012, for the payment of the additional d
amount as a unified contribution, where due t
                                                                               r
(Cass. SS.UU. n. 4315 of 2020). or
                                                                               C
                          P.Q.M.


The Court rejects the appeal and condemns the appellant
to the payment of expenses paid in euro 10,000.00,
over euro 200.00 for disbursements, accessories according to law and

reimbursement of general expenses at 15%.


                                23Pursuant to art. 13, co. 1 quater, Presidential Decree n. 115 of
proceedings for the payment, by the appellant,
of the additional amount as a unified contribution
equal to that for the appeal pursuant to paragraph 1 bis of the
same art. 13, if due.
Thus decided in Rome in the council chamber on the 8th


                                                                       And
                                                                       to
                                                                       the
                                                                       f
                                                                       u
                                                                       or
                                                                       n
                                                                       the
                                                                       or
                                                                       -
                                                                       And
                                                                       or
                                                                       z
                                                                       to
                                                                       to
                                                                       the
                                                                       d
                                                                       t
                                                                       or
                                                                       C








                             24
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