With Legislative Decree no. 149 of 10 October 2022, published in the Italian Official Gazette on 17 October 2022, the Italian Government has implemented the will to reform the Italian judicial system, as set out in the agreement signed by Italy with the European Union. The Cartabia reform, named after the former Minister of Justice of the Draghi government, Ms Marta Cartabia, aims to reduce the duration of civil proceedings by intervening both in certain aspects of civil proceedings and by providing for a gradual increase in the digitalisation of proceedings.

FIRST INSTANCE PROCEEDINGS

• WRIT OF SUMMONS

In Italy, ordinary civil proceedings begin with the service of a summons (“atto di citazione”) which, in addition to being clear, specific and concise, must contain two new formulae, in accordance with the general principles of clarity and conciseness introduced by the reform for all procedural documents (art. 121 of the Code of Civil Procedure and art. 46 of the operative provisions of the Code of Civil Procedure), must contain two new formulae:

1. The first, which appears only when the application is subject to a condition of admissibility. The reform has provided that the summons must state that the application is subject to a specific condition of admissibility and that this condition has been met, attaching the negative conciliation report;

2. The second formula, on the other hand, must be inserted in the part of the summons devoted to the “vocatio in ius”. It is a new warning to be given by the plaintiff to the defendant, namely that “technical defence by counsel is compulsory in all proceedings before the court, except in the cases provided for in article 86 or by special laws, and that the party, if the legal requirements are met, may present a party’s application”.

When drafting the summons, the new procedural deadlines must be taken into account. In fact, the reform has changed the time limit that must elapse between the date of service of the summons and the date of the first hearing, extending it to at least 120 days. Another procedural deadline changed by the reform is the time limit for the defendant’s appearance, which is now set at 70 days before the date of the hearing indicated in the summons.

• NEW DEADLINES

The procedural deadlines have been restructured because the reform, in order to achieve the European objective of a reasonable duration of the proceedings, has changed the course of the first hearing. Under the reform, the parties are required to submit the so-called supplementary pleadings pursuant to Article 171-ter of the Code of Civil Procedure before the hearing pursuant to Article 183 of the Code of Civil Procedure, which are essentially the same as the current pleadings pursuant to Article 183(6) of the Code of Civil Procedure. The reform provides that, on pain of forfeiture, supplementary pleadings must be filed within the following time limits

the first pleading, at least 40 days before the date of the hearing
the second, at least 20 days before the date of the hearing
the third, at least 10 days before the date of the hearing

• FIRST HEARING

TThe first hearing has thus been given a new face (art. 183 of the Code of Civil Procedure). The reform stipulates that the parties must appear in person at the first hearing; failure to appear without a valid reason constitutes conduct that may be penalised by the judge pursuant to Art. 116(2) of the Code of Civil Procedure. This is because the reform law provides that, at the first hearing, the judge must freely question the parties, ask for the necessary clarifications on the basis of the attached facts and proceed with the mandatory attempt at conciliation. If the attempt at conciliation is unsuccessful, the judge may, at the same hearing, either decide on the preliminary inquiries or reserve his decision and issue a subsequent order. 

However, if, at the end of the hearing, the facts constituting the claim have been proved and the defendant’s objections are manifestly unfounded, the judge may, at the request of the party, issue an order granting the claim (art. 183-ter of the Code of Civil Procedure). Similarly, if at the end of the first hearing the plaintiff’s claim is manifestly unfounded or if the nullity of the summons has not been remedied, the judge may, at the request of a party, issue an order rejecting the claim (art. 183-quater of the Code of Civil Procedure).

Both orders can be adopted only upon request of a party and in disputes within the jurisdiction of the court concerning disposable rights; only the order of acceptance can be appealed against pursuant to art. 669-terdecies of the Code of Civil Procedure.

At the hearing, the judge, “having assessed the complexity of the dispute and of the evidentiary investigation” and having heard the parties, may order, by a non-appealable order, the continuation of the trial in the forms of the new simplified procedure, which with the reform finds a new place in the Code of Civil Procedure. In the absence of such special circumstances, at the outcome of the first appearance hearing, the judge fixes the hearing for the taking of evidence. Once the preliminary investigation is over, the decisional phase begins.

• DECISION PHASE

When the judge, therefore, deems the case ripe for decision, he fixes the hearing, to be held in writing, for submission to decision (or to the panel) and assigns the parties three peremptory time limits:

up to 60 days before the hearing, for the filing of written notes containing only clarifications of the form of order sought
up to 30 days before the hearing, for the filing of closing arguments;
up to 15 days before the hearing for the filing of reply briefs.

APPEALS

The reform also modifies the appeal proceedings in order to ensure greater celerity and simplification, eliminating procedural tools that have not worked well over time. In particular, the most relevant novelties concern the elimination of the filter provided for in Article 348-bis of the Code of Civil Procedure and the introduction of a different kind of filter: the oral discussion of the case pursuant to Article 350-bis of the Code of Civil Procedure. A new role was then attributed to the investigating counsellor who is entrusted with the performance of all tasks prior to the decision-making phase. The model outlined is, therefore, analogous to that of the procedure before the court in collegiate composition, in which only the decisional phase in the strict sense is reserved to the collegium, whereas all other procedural phases are dealt with before the examining magistrate.

Finally, the hypotheses of remitting the case to the first judge were limited to cases of breach of the adversarial process.

The content of the notice of appeal has also been modified (arts. 342 and 434 Code of Civil Procedure). For appeals after 28 February 2023, the appeal must be reasoned and for each of the grounds must indicate, under penalty of inadmissibility, in a clear, concise and specific manner

1) the part of the first instance decision that is being challenged;

2) the criticisms made of the reconstruction of the facts made by the court of first instance

3) the breaches of law complained of and their relevance to the contested decision.

Unlike the proceedings at first instance, the minimum time limit that must elapse between the day of notification and that of the first hearing does not change. In fact, the legislature, by eliminating the reference to Article 163 of the Code of Civil Procedure, has provided that no less than 90 days must elapse between the service of the notice of appeal and the day of the hearing if resident in Italy or 150 days if resident abroad.

With regard to the defendant’s appearance, Article 343 of the Code of Civil Procedure provides that the respondent’s statement of defence, which, under penalty of forfeiture, must contain the cross-appeal, must be filed no later than 20 days before the appearance hearing fixed in the notice of appeal.

JUDGMENT IN CASSATION

With regard to appeals in cassation, the reform provides for an accelerated procedure for determining inadmissible or manifestly unfounded appeals. In particular, if the judge finds that the appeal is inadmissible or manifestly unfounded, he will inform the parties and give them the option of requesting a cassation or abandoning the appeal.

With regard to the content of the appeal, the reform stipulates that the document must contain a clear and essential statement of the facts of the case and a clear and concise statement of the grounds on which cassation is sought, that each ground of appeal must refer to the document to which it relates and that the content of that document must be referred to in the ground of appeal in order to make it comprehensible (Article 366 of the Code of Civil Procedure).

Important changes have been made to the cassation stage of the appeal, which has been reorganised, firstly, by specifying the cases in which the court will hold a public hearing. With regard to public hearings, the reform has reserved the hearing of appeals for public hearings “when the point of law is of particular importance”.

Finally, it is worth mentioning the new Article 391 quater of the Code of Civil Procedure, through which the reform provides for the possibility of challenging by revision decisions that have become final and the content of which has been declared by the European Court of Human Rights to be contrary to the Convention or one of its Protocols.

• PAYMENT ORDER: THE SHORTEST WAY

In order to allow the creditor to collect his debt in a relatively short period of time, the Italian legislator has established a short procedure – usually lasting a few months – followed by a payment order issued by the Court ordering payment of the debt, plus interest and legal costs. This is an ex parte procedure, since the Court rules on the creditor’s application without hearing the debtor or allowing him to submit a response or remarks.

• WRITTEN EVIDENCE REQUIRED

Written evidence of the claim includes, in particular, delivery receipts and unilateral written undertakings. Where the claim relates to the supply of goods or services and the supply was made by a firm to another firm or to a person not engaged in a professional or business activity, written evidence of the claim may also consist of authentic extracts from the accounts of the creditor’s firm, provided that they are properly kept in the manner prescribed by law. Commercial invoices may also constitute appropriate written evidence of the claim, provided that they are accompanied by a stamped copy from the claimant’s register of invoices.

• 40-DAYS DEADLINE FOR PAYMENT

If the court hearing the claim finds it to be well founded, it will order the debtor to pay the sum within a certain time limit, usually 40 days, but it will also advise the debtor that he may challenge the payment injunction within the same period and that, if no objection is lodged, the order for payment will become final and may be enforced. An objection challenging the order (opposizione) can be brought before the court that issued it, by means of a writ of summons (citazione) to be served on the claimant’s lawyer. It is worthwhile to point out that in order to discourage debtors from filing groundless appeals, having as a unique scope the postponement of payment, the Italian law provides a remedy which seems to be quite efficient: in case the opposition is not based on relevant circumstances proved in writing which have occurred prior to the payment injunction (for example, a written complaint regarding the quality of goods/services), the Court may authorise the creditor to collect his money without having to attend the end of the trial.

• WHAT IF THE DEBTOR DOES NOT PAY?

The creditor must serve the debtor with a formal request (so called “atto di precetto”) to pay the amount due within a period of not less than ten days after the document is served. In the case of non-payment by the deadline indicated in the writ of enforcement, the creditor can start enforcement proceedings by choosing one of the three main forms of enforcement provided for by the Code of Civil Procedure: 1) distraint and forced liquidation of the debtor’s movable assets (“pignoramento mobiliare”); 2) distraint of the debtor’s funds and/or credits owned by a third party, usually a bank (“pignoramento presso terzi”). The judge will then allocate these funds and/or credits to the creditor; 3) distraint and forced liquidation of the debtor’s real estate.