The amendement of the Civil Procedure Code provisions and Act No. 53/1994
Prepared by Cristian Sgaramella, Raffaele Gentile and Sara Plantone
Through Legislative Decree No. 149 of Oct. 17, 2022, the government exercised the delegated power given to it by Parliament through Delegated Law No. 206/2021, with the aim of streamlining the civil process and providing for so-called urgent measures to rationalize proceedings in the areas of personal rights, family law and enforcement, better known as the Cartabia Reform.
The legislature once again intervened in the maturing regulatory framework with Act No. 197/2022 and Decree-Law No. 198/2022, choosing to bring forward the entry into force of most of this Reform to Feb. 28, 2023.
A number of reformatory measures included the adoption of amendments on civil notifications to the provisions of the Code of Civil Procedure and Act No. 53/1994.
As a result, Article 137 of the Code of Civil Procedure has been amended, the new version of which expressly provides for the inclusion of the figure of the lawyer in the group of persons assigned to perform the notifications of documents in the civil process. The article in question clearly states “(…) The judicial officer or lawyer makes service by delivering to the addressee a certified true copy of the original of the document to be served (…).”
The lawyer is, however, called to make notifications “(…) in the cases and in the manner provided for by law (…)”; the reference is undoubtedly to Act No. 53/1994, which regulates the notifications of civil, administrative and extrajudicial acts for lawyers.
The new notifications made by the lawyer, as a partial amendment to the provisions of Act No. 53/1994, must be made exclusively electronically by means of certified electronic mail to all those subjects, both natural and legal persons, who are obliged to have a PEC (Certified Electronic Mail) or SERCQ (Qualified Certified Electronic Delivery Service). both are services available to the citizen provided for the activation of the digital domicile. Judicial officers have also been entrusted with this task, for whom the change in the new Article 149 bis of the Code of Civil Procedure has been provided.
The Cartabia Reform also provided for the amendement of Article 147 of the Code of Civil Procedure, which involved the insertion of two additional paragraphs. The first consolidates notices “without hourly limits,” and the second considers two different moments for the finalization of service. For the notifier, it is completed when the receipt of acceptance is generated; for the addressee, lawful notification is actually achieved when the receipt of delivery is generated. However, if the latter is generated between 9 p.m. and 7 a.m. of the following day, service is deemed completed for the addressee at 7 a.m.
The lawyer’s intervention in the carrying out of notifications becomes preliminarily obligatory and involves the consequent prohibition for the judicial officer to carry out the activity of service. In fact, the new text text of Article 137, code of civil procedure, in particular the new paragraph 7, states “(…) The judicial officer shall effect service at the lawyer’s request if the lawyer does not have to effect service by certified electronic mail or qualified certified electronic delivery service, or by any other means provided by law, unless the lawyer declares that service by the aforementioned means is not possible or has not been successful due to causes not attributable to the addressee. The declaration shall be noted in the certificate of service.”
It introduces the so-called “declaration pursuant to Article 137, Paragraph 7 of the Code of Civil Procedure,” which certifies the lawyer’s declared inability to proceed independently with notification of the document due to the addressee’s failure to have a digital domicile.
The declaration becomes a required act that according to a logical-legal thinking should apply to all proceedings instituted as of March 1st, 2023.
In this regard, pending clarifying interpretive interventions, the practice developed during the first days of the Reform’s adoption does not seem to have a uniform and constant direction, although the prevalent approach in Italian courts, especially for notifications of party documents, appears to be to apply the new declaration pursuant to Article 137, paragraph 7, code of civil procedure, to all notifications after February 28, 2023 and, therefore, also to those relating to judgments introduced prior to the entry into force of the decree in question.
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