Brief notes on the reform of the Italian Civil procedure

Law no. 206 of 26 November 2021 sets the reform of the civil trial (hereinafter, the “Delegated Law”[1]) and aims at simplifying and reduce the length of the litigation process as well as at rationalising the civil procedure, in compliance with the principle of defense (the so called “contraddittorio”).
On 28 July, the Council of Ministers, upon proposal of the Minister of Justice Ms. Marta Cartabia, approved, in preliminary examination, the draft of the legislative decree implementing the Delegated Law, consisting of 51 articles spread over 200 pages (along with a heavy technical report), which will be submitted to the Justice Committees for their opinion.
The reform consists of three stages:

i. 22 June 2022: a series of preceptive rules, without the need for further regulatory intervention, on personal and family rights and forced execution entered into force for all those proceedings commenced from that date;

 ii. 24 December 2023: further reforms will come into force and for which the Government has been appointed;

 iii. 24 December 2024: the Court for Persons, Minors and Families will be established.

As for phase i), the provisions of paragraphs 27 to 36 of Article 1 on the rights of persons and families[2] as well as on forced execution[3] have already come into force.
The main innovations to be introduced in phase ii) of the Delegated Law are:

1. the redetermination of the jurisdiction of the minor courts (the so called “Giudice di Pace”) in order to reduce the workload of the Courts and the attempt to standardize the trial before them with the one before the tribunals in monocratic composition;
2. the reduction of the cases in which the Court decides in collegiate composition, based on the legal complexity and the economic-social relevance of the disputes;
3. the application of the principle of the prevalence of substance over form: prohibition of sanctions on the validity of judicial deeds for their non-compliance with the technical specifications on the form, limits and computerised scheme of the deed when the judicial deed has nevertheless achieved its purpose.
4. the willing to ensure the simplicity, concentration and effectiveness of the protection and the reasonable duration of the process by incorporation of procedural tasks and deadlines, providing, for example, that:

• in the writ of summons, the facts and legal elements constituting the grounds of the claim are set out clearly and specifically;
• the writ of summons already includes the specific indication of the means of proof and documents on which the plaintiff intends to rely;
• in the statement of defence, the defendant submits all his/her defences and states his/her position on the facts highlighted by the plaintiff in a clear and specific manner and, subject to the statutory preclusions, indicates the means of proof he/she intends to rely on and the documents;
• the plaintiff, within an appropriate time limit before the first hearing, under penalty of forfeiture, may propose the claims and defences that are the consequence of the defendant’s counterclaim or defences and request to be authorised to call a third party and, in any case, to specify and amend the claims, defences and conclusions already formulated and, under penalty of forfeiture, indicate the new means of proof and the documentary production;
• the defendant, within a subsequent time limit prior to the first hearing, may amend the claims, objections and conclusions already formulated and, under penalty of forfeiture, indicate the means of proof and documentary production and that, within a further time limit prior to the first hearing, the parties may reply to the claims and objections formulated in the supplementary pleadings and indicate the contrary evidence; determine the time limits for the evidentiary briefs so that to allow the speedy processing of the case;
• a time limit of no more than 90 days from the first hearing for the investigation process and the examination of evidence and a reduction of the time limit for the filing of evidentiary briefs;
• the abolition of certain hearings, including the hearing for the oath of the Court’s appointed expert or the hearing for the specification of the parties’ conclusions, which will be replaced by the exchange of written notes with deadlines set at the first hearing;
• the reduction of the decision-making phase of the first instance proceeding and, consequently, of the deadlines for filing the final defence briefs;[4]
• the judge may always make a proposal for settling the case until he or she holds the case for decision;
• during the first instance proceedings, in disputes before the jurisdiction of the court concerning disposable rights, the judge may, at the parties’ request, issue a provisionally enforceable order upholding all or part of the proposed claim, when the constituent facts are proven and the defendant’s defences appear to be manifestly unfounded (this order, however, can be challenged);
• during the first instance proceedings, in disputes within the jurisdiction of the court on disposable rights, the judge may, at the parties’ request, following the first hearing, issue a provisional order rejecting the proposed claim when the latter is manifestly unfounded or if the requirement provided by Article 163, third paragraph, no. 3) of the Code of Civil Procedure is omitted or is absolutely uncertain, or if the presentation of facts referred to in Article 163, paragraph 4), of the Code of Civil Procedure is missing (this order, however, can be challenged);
• the simplification of appeals and the consequent acceleration of decision-making deadlines;
• the introduction of an accelerated procedure before the Supreme Court of Cassation for the dismissal of inadmissible or manifestly ungrounded appeals;
• the introduction of a new institution, i.e. the preliminary reference to the Supreme Court, consisting in the possibility for lower courts to defer directly to the Supreme Court the resolution of a question of law that is new, difficult to interpret and susceptible to be reiterated;

1. the intention, in matters of evictions, to extend the applicability of the validation procedure, the procedure for leave on expiry of the contract and eviction for rent arrears also to contracts of loan for use of immovable property and business leases;
2. the introduction of innovations in the field of family procedural law and the creation of the Court for Persons, Minors and Families, also aimed at facilitating juvenile proceedings with uniform, organic and consistent rules;
3. the introduction of immediate coordination between civil and criminal judicial authorities and with law enforcement agencies in matters of family law;
4. the introduction of changes to the discipline of the forced execution (e.g. repeal of the provisions on the enforcement order and dispatch in enforceable form);
5. strengthening the regulation of ADR methods, i.e. lawyer-assisted negotiation (also extended to labour disputes, as well as to de facto couples in family law matters), mediation and arbitration, also providing for tax incentives.

Specifically, the draft of the legislative decree intervenes precisely on the relationship between ordinary jurisdiction and the forms of alternative and complementary justice, enhancing and strengthening the institutes of mediation and assisted negotiation and revising the codified discipline of arbitration.
For instance, as for the assisted negotiation, the important provision of an out-of-court investigation has been introduced, consisting in the acquisition of statements from third parties on relevant facts in relation to the subject matter of the dispute and in the request to the opposing party to declare in writing the truth of facts unfavourable to it and favourable to the requesting party, equal to the already existent out-of-court confession. This is an important innovation with impacts also thes possible future proceeding commenced in case of failure of the assisted negotiation, because it contributes to obtain, if not already a true 'forensic jurisdiction', at least a form of complementary justice realised through the constructive contribution of lawyers.
As for mediation, for instance, the area of the mandatory mediation attempt has been extended to disputes involving relationships of duration, thus becoming a condition of admissibility of the proceedings.
Lastly, with regard to arbitration, which, is a process already recognised as jurisdictional, the principle of impartiality and independence of arbitrators has been strengthened. Also, when there is an underlying willingness of the parties in this regard, the arbitrators can issue precautionary measures, in addition to further innovations, implementing the principles of the Delegated Law.
The Minister Ms. Cartabia stated that it is “an ambitious reform, which affects every aspect of the civil process and enhances the value of alternative dispute resolution tools. The fundamental role of civil justice is to protect the daily needs of citizens as well as those of economic operators...We have committed ourselves to the European institutions to reduce the duration of trials by 40% in five years” [emphasis added].
We therefore look forward to seeing the concrete implementation of this “ambitious” reform, hoping that the many objectives set can be achieved in the near future.

[1]   The law contains the “Delegation to the Government for the efficiency of the civil process and for the revision of the discipline of the instruments of alternative dispute resolution and urgent measures for the rationalisation of proceedings concerning the rights of persons and families as well as in the matter of forced execution”.

[2] In particular, they concern the intervention of public authorities in favour of minors, by regulating the removal of minors from the persons exercising parental liability, amending the prerequisites for adoption and providing an ad hoc discipline of the proceedings instituted following the intervention of public authorities; intervening on the discipline of the appointment of the special minor curator, on the assisted negotiation within the framework of the marriage crisis for the custody of children born out of wedlock, etc. 

[3]  The reform amends, for example, the discipline of the ineffectiveness of third-party seizure by introducing the obligation for the creditor to notify the debtor and the third party of the notice of registration of the seizure and to deposit the notice in the Court’s file, under penalty of ineffectiveness of the seizure or, again, by introducing the forum for the compulsory expropriation of credit in case debtor is the Public Administration as “the court of the place where the office of the State Attorney is located in whose district the creditor has his/her residence, domicile or seat”.

[4] Decisional phase amended: in case of oral argument (article 281-sexies of the Code of Civil Procedure), the judge may reserve the issue of the judgment within a term not exceeding 30 days from the discussion hearing; on the other hand, if the judge proceeds pursuant to the first three paragraphs of article 187 or 188 of the Code of Civil Procedure, he/she sets before him/her the hearing to defer the case to the Court's panel and assigns the parties, unless they waive their right to do so, peremptory deadlines of up to 60 days before the hearing for filing written notes specifying their conclusions, up to 30 days before the hearing for filing closing statements and up to 15 days before the hearing for filing the reply briefs.