The reform of the Italian Civil Procedure: between immediately enforceable novelties and novelties under examination by working groups

A cura di Elisabetta Caccavella and Francesca Rottino

The reform of the Italian Civil Procedure, whose implementation has been entrusted to the Government by Delegated Act No. 206/2021, has been approved on 25 November 2021 and has entered into force on 24 December 2021. The Government therefore has one year to issue the implementing decrees.

On January 14, 2022, Minister of Justice, Marta Cartabia, executed the decree by which have been constituted seven working groups with the assignment to draft the legislative decrees implementing the Delegated Act No. 206/2021.

The following matters have been assigned to each working group:

  • reform of ADR (mediation, assisted negotiation procedures and arbitration), assigned to the first working group;
  • reform of general principles of the civil process and “digitalization”, assigned to the second working group;
  • reform of proceedings at first instance, assigned to the third group;
  • reform of appeal and supreme courts proceedings, assigned to the fourth group;
  • reform of labour proceedings, enforcement proceedings and proceedings in so called “chambers proceedings” (‘in camera di consiglio’), assigned to the fifth group;
  • reform of proceedings concerning persons, minors and families, assigned to the sixth group;
  • reform and establishment of the court for individuals, minors and families, assigned to the seventh group.

The drafts of the legislative decree schemes and the relevant explanatory reports are expected to be completed by 15 May 2022 for the first six working groups, and by October 2022 for the seventh group.

However, pursuant to Paragraph 37 of the Sole Article of the Delegated Act No. 206/2021, the provisions of Paragraphs 27 o 36 contain direct amendments to existing procedural rules to be applied to proceedings that will be commenced as of the 180th day following the date of entry into force of the Delegated Act (i.e. as from 22 June 2022).

The set of measures with immediate effect includes provisions amendments in the sector of enforcement procedures as well as in family law.

In detail:

  • paragraph 29 of the sole article of the Delegated Act provides for a change in the competent court in cases of third-party garnishment when the debtor is a public administration. The competent judge will no longer be the judge of the place where the third-party subject to garnishment has its residence, domicile, dwelling place or headquarters (as currently provided for in article 26 bis, paragraph 1, Code of Civil Procedure), but rather the judge of the place where the office of the competent State Attorney (i.e. the State Attorney of the district the creditor has his residence, domicile, dwelling place or headquarters);
  • paragraph 32 of the sole article of the Delegated Act amends the rules on the ineffectiveness of third-party garnishment, introducing the mandatory obligation for the creditor (i) to serve the debtor and the third party with the notice of the judicial filing of the garnishment and (ii) to file the served notice in the enforcement judicial docket, under penalty of ineffectiveness of the garnishment. If the third parties involved in the proceedings are more than one, the sanction of the ineffectiveness will take place only in favor of the third party which has not been served or whose served notice has not been filed. The purpose of the legislative change is to facilitate a rapid release of the seized sums, without the need to obtain an order from the Judge of the enforcement proceedings with respect to the release of sums that are no longer intended for the satisfaction of the claim, given the automatic termination of the third party’s obligation of custody.

Below, on the other side, are listed the additional main amendments provided by the law, which are currently under the examination of the working groups:

  1. as regards mediation and assisted negotiation proceedings:
  • the collection of the various laws currently in force in a “Consolidated Text of Complementary Instruments to the jurisdiction”;
  • the extension of compulsory recourse to mediation also in case of claim related to joint venture, franchising, services, network, outsourcing, subcontracting, partnerships and consortia agreements;
  • the possibility for the parties to appoint, in case of justified reasons, their own representative with knowledge of the facts and with the necessary powers to be part to the mediation / negotiation proceedings;
  • the possibility, upon agreement of the parties, to carry out mediation and assisted negotiation procedures by telematic means;

2. as regards arbitration proceeding:

  • amendments aimed at strengthening the guarantees of impartiality and independence of the arbitrator by introducing the possibility to challenge the appointment of the arbitrator also based on serious convenience reasons;
  • the granting to the arbitrators of the power to issue precautionary measures where such power has been provided for by the parties in the arbitration agreement or in any subsequent written document, without prejudice to the jurisdiction of the ordinary courts with respect to the precautionary measures in the event of a request made prior to the acceptance of the arbitrators;
  • the reduction to six months of the time set forth in article 828, paragraph 2, of the Code of Civil Procedure for challenging the annulment of the ritual arbitral award;
  • the possibility to challenge the order issued pursuant to Article 35(5) of Legislative Decree no. 5/2003 on the suspension of the effects of the company shareholders resolution;

3. on the so called “digitalization” of the civil proceedings, is foreseen the possibility for the Judge to order that hearings:

  • will be held by means of video conferencing;
  • will be held by means of written notes in the case of a joint request by the parties or in case the parties do not object;

4. with regard to ordinary merit proceedings:

  • an extension of the deadline for the first hearing pursuant to article 163 bis of the Code of Civil Procedure and of the deadline for the filing of the defendant’s brief of defense pursuant to article 166 of the Code of Civil Procedure;
  • obligation for the parties to submit before the first hearing all the claims that are consequence to the defense carried out by the other party in the introductory briefs;
  • scheduling of the second hearing within 90 days from the first one;
  • reduction of the time-limits for filing closing statements and rebuttal briefs from the current 60 and 20 days to 30 and 15 days, without prejudice to the parties’ right to waive them;

5. with regard to appeals and the supreme court proceedings:

  • the beginning of the time limit for appealing the decision pursuant to article 325 of the Code of Civil Procedure from the date of service of the decision, both for the serving and the served ones;
  • the mandatory obligation – under penalty of inadmissibility – to indicate in the introductory briefs (i) which parts of the first instance decision are challenged, (ii) which changes of the Judge’s recollection of the factual circumstances are requested, as well as (i) which circumstances prove the breach of law and why such circumstances are important with respect the first instance decision;
  • with regard to the application for suspension of enforceability of the first instance decision, if such application is declared inadmissible or manifestly groundless, the judge has the power to condemn the applicant to the payment of a sum comprised between Euro 250.00 and Euro 10,000.00 in favor of a so called “fine fund”;
  • the cases in which the claim may be referred by the appeal judge to the court of first instance are limited to the cases where a breach of the right of the parties to be heard is ascertained;
  • the so called “filter section” of the Supreme Court is abolished, and the relevant area of competence is transferred to the simple sections of the Court;

6. finally, with respect to the enforcement procedures, in addition to the already mentioned immediately enforceable measures, it has been provided for:

  • the repeal of the provisions on the request and apposition of the so-called “formula esecutiva”. In order to start an enforcement, it will be sufficient a simple copy of the enforceable title, provided that it is certified by the lawyer as identical to the original enforceable title;
  • the possibility for the debtor to ask – only once, under penalty of inadmissibility – to be authorized to sell directly the seized real estate, provided that the sale price is not lower than the minimum price indicated in the appraisal report;
  • the reduction of the time limit for the filing of the requested property documentation, which will coincide with the time limit for the filing of the sale application (such term might be postponed for 45 days just once).

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Elisabetta Caccavella

PwC TLS Avvocati e Commercialisti