Author: Dr. Eleonora Ebau, Research Fellow at the Department of Law, UniTo.
With Law No. 206 of 2021, the Parliament, on the one hand, delegated the Government to reform civil proceedings, dictating specific principles and guiding criteria, and, on the other hand, directly amended a number of substantive and procedural provisions relating to proceedings on family law, enforcement, and ascertainment of citizenship.
On 28 July 2022, the Council of Ministers approved, in preliminary examination, the draft legislative decree transmitted to Parliament on 2 August 2022.
It is worth recalling that the reform of civil proceedings, also known as the Cartabia reform, is one of the objectives agreed with the European Union in order to access the resources of the National Recovery and Resilience Plan (NRRP)
Through this reform, therefore, the targets set out in the NRRP for reducing the backlog and duration of civil proceedings should be achieved from 2024.
Description of the civil proceedings reform
The enabling act for the reform of civil proceedings aims mainly to simplify, expedite and streamline civil proceedings, without affecting the guarantees of the adversarial process, and abiding by the guiding principles and criteria set out in the act itself.
The broad scope of this law issued by the Government provides for the “formal and substantive reorganisation” of civil proceedings in the areas of jurisdiction, the enforcement process, certain special procedures and alternative dispute resolution instruments.
In contrast to the enabling act, the government’s draft legislative decree significantly affected the area of alternative dispute resolution (ADR), with a view to lightening the load of the ordinary justice system.
Specifically with regard to mediation, it is worth mentioning that tax incentives have been introduced, the number of cases of compulsory mediation as a condition for proceeding with the application has been increased, and the rules on the training and updating of mediators, as well as on mediation bodies themselves, have been reformed.
The reform also promotes assisted negotiation by extending its scope of application.
Similarly, the reform sought to incentivise the use of arbitration,
by reinforcing the principles of the impartiality and independence of arbitrators, attributing provisional powers to arbitrators and providing for a mechanism of translatio judicii between the ordinary courts and arbitrators and vice versa.
Ordinary proceedings of first instance
With regard to ordinary proceedings of first instance, the number of cases falling under the jurisdiction of the justice of the peace in civil matters has risen, while those presided over by several judges sitting en banc have fallen.
Proceedings conducted before single-member courts were also reformed, promoting greater speed and concentration of the same.
Specifically, greater importance was given to the phase prior to the first hearing and it was stipulated that the date must be set for the next hearing for the taking of evidence within 90 days of the first hearing.
The decision-making phase has been changed, abolishing the hearing for the specification of the pleadings and providing for the filing of closing and reply briefs with accelerated time limits.
Moreover, the judge may formulate a proposal for mediation pursuant to Article 185 bis of the Italian Code of Civil Procedure as long as the case is reserved for judgment.
Also with a view to promoting greater speed and concentration of the proceedings, the hearing to swear in the court-appointed expert has been abolished.
The scope of the summary proceedings procedure (to be called “simplified summary proceedings“) has also been extended to all disputes in which the facts of the case are non-contentious, the investigation is based on documentary evidence or readily available evidence, or in any case do not have any complex aspects.
With regard to labour disputes, a single procedure for dismissals has been introduced with a fast track for dealing with possible reinstatement.
Appeal proceedings in the civil proceedings reform
With regard to appeal proceedings, the reform of civil proceedings provides for the so-called appeal filter, stipulating that an appeal that does not have a reasonable likelihood of being upheld shall be declared manifestly unfounded.
In addition, the figure of the investigating counsel was reintroduced along with the devolution of wide-ranging powers to the same to direct the proceedings.
Court of Cassation
With regard to proceedings at the Court of Cassation, the so-called Cassation filter has been reformed, providing for a faster procedure for the definition of inadmissible, inapplicable or manifestly unfounded appeals.
Another change affecting the judges of the Supreme Court concerns the introduction of the reference for a preliminary ruling, by the court hearing the substance of the case, on new and particularly important questions of law that present serious hermeneutical and seriality issues.
The reform introduced the possibility of the revision of civil judgments when the content of a final judgment is subsequently declared by the European Court of Human Rights to be contrary, in whole or in part, to the Convention on Human Rights or one of its Protocols.
The enforcement procedure
The enforcement procedure has also been streamlined and accelerated.
For example, the provisions concerning the attachment of assets and the delegation of sale operations to the delegated professionals have been reformed and the institution of direct sale has been introduced.
A significant part of the reform concerns proceedings in the area of individual and family rights.
Among the most significant changes is the provision for a standard procedure applicable to all proceedings relating to the status of persons, minors and families, as well as the establishment of a single court for such disputes, destined to replace the current juvenile court (thus acquiring both civil and criminal competences) and to absorb the civil competences of the ordinary court in matters relating to the status and capacity of persons and families.
For more information on this topic, see: M. A. Lupoi Chapter Fourteen: Il rito Unitario di famiglia” in G. Di Marco, La Riforma del Processo Civile, Giappichelli.
With regard to disputes concerning the ascertainment of Italian citizenship, the reform specifies the criteria for identifying the court with jurisdiction, so as to lighten the current workload of the specialised division established at the Court of Rome.
Office for Proceedings
Another area affected by the reform is the Office for Proceedings, whose operability and efficiency have been enhanced, precisely in order to facilitate the introduction of the new organisational structures introduced by the reform and to facilitate the use of new technologies in the procedural context.
In general, with a view to greater digitalisation of the process, IT tools and the methods for conducting hearings remotely have been strengthened.
Level of progress of the civil proceedings reform
At this point it is worth examining the path that led to the entry into force of Law 206/2021, as well as the status of the issuance and entry into force of the delegated decrees by the Government.
2020/2021
First of all, it should be recalled that on 9 January 2020, the second Conte government presented the draft law A.S. 1662.
Under the subsequent Draghi government, Justice Minister Cartabia set up a committee chaired by Professor Luiso to draft proposals for action with regard to civil proceedings and alternative instruments to the same.
Following Senate approval of a series of amendments presented by the Government on the basis of the work of the Luiso Committee, Law No. 206 of 2021 came into force on 24 December 2021 (published in the Official Gazette on 9 December 2021).
Latest updates
On 28 July 2022, the Council of Ministers approved, in preliminary examination, the draft legislative decree transmitted to Parliament on 2 August 2022.
Following this date, the relative parliamentary committees had 60 days to express their opinion (i.e., until 2 October 2022). In the absence of a parliamentary opinion and once the aforementioned 60-day period had elapsed, the Government could in any case issue the legislative decrees.
Furthermore, where the government does not intend to abide by the opinions, it must send the texts back to Parliament with its observations and possible amendments, along with the necessary supplementary information and justifications. The respective committees have 20 days to give their opinions (so-called double opinion).
In any case, once said period has elapsed, the Government may issue the decrees.
Lastly, from the entry into force of the legislative decrees implementing the reform (which had to take place within one year of the entry into force of the enabling act, i.e. by 24 December 2022), the Government has a further 24 months for any supplementary or corrective provisions.