Edited by: Dr. Eleonora Ebau, Research Fellow, Department of Law, UniTo.
With Law no. 206 of 2021, Parliament, on the one hand, delegated the Government to reform civil procedure, laying down specific principles and guiding criteria, and, on the other hand, directly amended certain substantive and procedural provisions relating to family law proceedings, forced enforcement, and the determination of citizenship status. On July 28, 2022, the Council of Ministers approved, in a preliminary review, the draft legislative decree transmitted to the Chambers on August 2, 2022. It should also be recalled that the reform of civil procedure, also known as the Cartabia reform, is one of the objectives agreed upon with the European Union to access resources from the National Recovery and Resilience Plan (NRRP). Therefore, through this reform, starting from 2024, the objectives of reducing the backlog and the duration of civil proceedings provided for by the NRRP must be achieved.
Description of the Civil Procedure Reform
The main objectives of the enabling law for the reform of civil procedure are the simplification, speed, and rationalization of civil proceedings, while respecting the guarantee of the adversarial system, as well as the principles and guiding criteria provided for by the law itself. The scope of application of this law is extremely broad; indeed, the delegation to the Government provides for the realization of the "formal and substantive reorganization" of the rules governing civil proceedings on the merits, enforcement proceedings, certain special proceedings, as well as alternative dispute resolution instruments. Following the enabling law, the Government's draft legislative decree intervened heavily in the field of alternative dispute resolution (ADR) methods, precisely in order to relieve the burden on the ordinary justice system. Specifically regarding mediation, it is worth mentioning that tax incentives have been introduced, cases of mandatory mediation as a condition for the admissibility of the claim have been increased, and the rules on the training and updating of mediators, as well as on the mediation bodies themselves, have been reformed. Assisted negotiation (negoziazione assistita) was also favored by the reform, as its scope of application was extended. Similarly, the reform aimed to incentivize the use of arbitration, in particular by strengthening the principles of impartiality and independence of arbitrators, granting interim powers to arbitrators, and providing for a translatio judicii mechanism between the ordinary judge and arbitrators and vice versa.
Ordinary First-Instance Proceedings on the Merits
Regarding ordinary first-instance proceedings on the merits, the jurisdiction of the Justice of the Peace in civil matters has been increased, while cases in which the tribunal judges in a panel composition have been reduced. Proceedings before the tribunal in a single-judge composition have also been reformed, prioritizing their speed and concentration. Specifically, particular importance was given to the phase prior to the first hearing; it was established that the judge must schedule the subsequent hearing for the taking of evidence within 90 days of the first hearing. The decision-making phase was then modified by abolishing the hearing for the specification of conclusions (udienza di precisazione delle conclusioni) and providing for the filing of final pleadings and briefs in reply with strict, accelerating deadlines. Furthermore, the settlement proposal by the judge pursuant to Art. 185-bis of the Italian Code of Civil Procedure (c.p.c.) can be formulated until the case is taken under advisement for decision. Always with the aim of favoring the concentration and speed of the proceedings, the hearing for the swearing-in of the court-appointed expert witness (consulente tecnico d'ufficio) was also abolished. The scope of application of summary proceedings on the merits was also extended (which will be called "simplified proceedings on the merits") to all disputes in which the facts of the case are entirely undisputed, the investigation is based on documentary evidence or is of prompt solution, or otherwise no profile of complexity is present. Regarding labor disputes, a single procedure was provided for dismissals with a fast-track lane for handling potential reinstatement.
Appeal Proceedings in the Civil Procedure Reform
As for appeal proceedings, the civil procedure reform overcame the so-called "appeal filter," providing that appeals showing no reasonable probability of being accepted shall be declared manifestly unfounded. Furthermore, the figure of the investigating judge (consigliere istruttore) was reintroduced, along with the devolution of broad powers of direction over the proceedings to them.
Proceedings before the Supreme Court of Cassation
Regarding proceedings before the Supreme Court of Cassation, the so-called "Cassation filter" was reformed, providing for a swifter procedure for defining inadmissible, time-barred, or manifestly unfounded appeals. Another novelty for the judges of the Supreme Court concerns the introduction of the preliminary referral (rinvio pregiudiziale) by the lower court judge for questions of pure law that are new and of particular importance, presenting severe hermeneutical issues and serial nature. A new ground for the revocation of civil judgments was also introduced when the content of a final, unappealable judgment (passata in giudicato) is subsequently declared by the European Court of Human Rights to be contrary, in whole or in part, to the Convention or one of its Protocols.
Enforcement Proceedings
Enforcement proceedings have also been streamlined and accelerated. By way of example, it is worth mentioning that the rules on attached assets and the delegation of sale operations to the delegated professional have been reformed, and the institution of direct sale has been introduced. A conspicuous part of the reform then concerns proceedings in matters of personal rights and family law. Among the most significant novelties, it is recalled that a unified rite applicable to all proceedings relating to the status of persons, minors, and families was provided for, 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 jurisdiction) and to absorb the civil jurisdiction of the ordinary court regarding the status and capacity of persons and family. For further details on the topic, see: M. A. Lupoi Chapter Fourteen: "The Unified Family Rite" in G. Di Marco, La Riforma del Processo Civile, Giappichelli. With reference to disputes relating to the determination of Italian citizenship status, the reform specifies the criteria for identifying the competent court for the trial, so as to deflate the current workload of the specialized section established at the Court of Rome.
Office for the Trial (Ufficio per il Processo)
Another area in which the reform intervened concerns the Office for the Trial, whose operations and efficiency have been strengthened precisely to facilitate the introduction of the new organizational arrangements brought by the reform itself, as well as to ease the use of new technologies in the procedural field. In general, with a view to greater digitalization of proceedings, IT tools and remote hearing modalities have been reinforced.
Status of the Civil Procedure Reform
It now seems appropriate to examine the path that led to the entry into force of Law no. 206 of 2021, as well as the state of progress for the enactment and entry into force of the delegated legislative decrees by the Government.
2020/2021
Preliminarily, it is recalled that on January 9, 2020, the Conte II Government presented the bill A.S. 1662. Subsequently, under the Draghi Government, the Minister of Justice Cartabia set up a Study Commission chaired by Prof. Luiso to draft proposals for interventions regarding civil procedure and alternative dispute resolution instruments. Following the approval in the Senate of a series of amendments presented by the Government based on the work of the Luiso Commission, Law no. 206 of 2021 entered into force on December 24, 2021 (published in the Official Gazette on December 9, 2021).
Latest Updates
The Council of Ministers of July 28, 2022, approved, in a preliminary review, the draft legislative decree transmitted to the Chambers on August 2, 2022. Thereafter, the parliamentary committees responsible for the matter and for financial profiles have 60 days from the transmission of the drafts to the Chambers to express their opinion (therefore by October 2, 2022); in the absence of a parliamentary opinion, the Government may, upon the expiration of the 60-day period, enact the legislative decrees anyway. Furthermore, if the Government does not intend to comply with the opinions, it must retransmit the texts to the Chambers with its remarks and any modifications, accompanied by the necessary supplementary elements of information and reasoning; the committees responsible for the matter and for financial profiles will have 20 days to express their views (the so-called "double opinion"). In any case, once this period has elapsed, the decrees can be enacted anyway. Finally, from the entry into force of the legislative decrees implementing the reform (which, it is recalled, must occur within one year of the entry into force of the enabling law, hence by December 24, 2022), the Government has an additional 24 months available for any supplementary or corrective provisions.