Towards faster and more efficient proceedings or a reform in name only?

Justice reform is one of the key goals of the National Recovery and Resilience Plan that Italy must meet in order to access the resources made available through the Next Generation EU programme. In fact, both the European Council and the European Commission have repeatedly highlighted the need for a substantial reduction in the duration of civil proceedings and improvement as regards the ongoing low efficiency of the civil justice system (eg Italy Country Report 2020 of 26 February 2020).

In response to these criticisms, the reform of the judicial system has the ambitious goal of reducing the time taken for proceedings through the combined implementation of legislative reform and specific investments aimed at increasing personnel as well as the tools and IT infrastructure of the judiciary. Is this, then, a real reform that would make civil proceedings faster and more efficient or is it a reform in name only?

State of the art of the reform

With respect to the legislative reform, on 26 November 2021 the Italian Parliament issued Law no. 206 which (i) delegated the implementation of the reform to the Government, within the framework of specific guidelines and criteria set out by the Parliament; and (ii) directly amended some substantive and procedural provisions.

On 28 July 2022, the Government approved two draft-implementing decrees for the reform of civil proceedings. On 13 and 15 September 2022, the Parliament delivered a favourable opinion on both decrees, albeit subject to some minor amendments. On 28 September 2022, the Government approved the final version of the implementing decrees which, on 17 October 2022, was published in the Official Journal of the Italian Republic. The new rules will apply, pursuant to the provisions of the implementing decree, to all proceedings (including appeal proceedings) started after 30 June 2023 or, with reference to some parts of the reform, already from 1 January 2023.

Highlights of the reform of Italian civil proceedings contained in the first implementing decree

Of the two implementing decrees: (i) the first makes substantial and procedural reforms on different aspects of the procedural rules; and (ii) the second expands the operational scope of the Office for Court Proceedings (Ufficio del Processo), which is an organisational structure created with the aim of ensuring a reasonable duration for judicial proceedings.

The amendments that are expected to have the most impact are introduced with the first implementing decree (legislative decree 10 October 2022 no. 149), and are as follows:

1. Strengthening of ADR mechanisms and, in particular, of mediation (eg through the introduction of further hypotheses of mandatory mediation) and arbitration (eg through the attribution to the arbitrators of the power to adopt interim measures, if such power was explicitly mentioned in the arbitration clause or in a previous agreement in writing).

2. Simplification of civil proceedings, with the aim of ensuring that the case reaches the first hearing already defined in the claims, objections and evidence. More specifically:

i) The introductory phase of the proceedings will be strengthened by providing, in addition to some changes in terms of introductory briefs of the proceedings, an enhancement in the phases before the first hearing during which the parties have the right to exchange supplementary briefs. This entails an anticipation of evidentiary briefs pursuant to art. 183 par. 6 ICCP (Italian Code of Civil Procedure) before the first hearing, so that the parties appear before the court after the subject matter of the dispute has already been fully defined. In other words:
a) No fewer than 120 days shall elapse between the day of service of the writ of summons and the first hearing (150 days if the defendant lives abroad).
b) The defendant must file a so-called “brief in appearance” 70 days before the first hearing.
c) Within 15 days following the expiration of the deadline for filing the brief appearance, the judge shall:

• verify the observance of the adversarial principle (and take the consequent necessary measures)
• indicate the objections that can be moved autonomously by the judge (eccezioni rilevabili d’ufficio) and the objections relating to the conditions of admissibility of the claim (condizioni di procedibilità)
• acknowledge the existence of the conditions for proceeding with the so-called “simplified proceedings” (rito semplificato, formerly known as rito sommario di cognizione)
• indicate to the parties, more generally, the issues which the judge considers necessary for them to address

d) The parties may (this possibility is left to the discretion of the parties) exchange the evidentiary briefs (memorie istruttorie), now redefined as supplementary briefs (memorie integrative), within 40 days before the hearing for the first brief, 20 days for the second brief and ten days for the third brief.

e) At the first hearing:

1. the parties must necessarily appear in person (but with the right to be represented by a third party)

2. the judge asks questions freely to the parties and makes a settlement proposal; the judge also decides on requests for evidence and sets the timetable for the hearings

ii) At the first hearing, moreover, the judge retains the right to order the opening of an evidence phase (fase istruttoria), with the examination of witnesses, or with a technical expert’s input (consulenza tecnica d’ufficio).

iii) In addition, with reference to the decision-making phase, the judge may issue, subsequent to the first hearing, an interim order granting or rejecting the claim if the object of the dispute appears manifestly grounded/groundless. This order can be appealed before a panel of judges pursuant to art. 669 terdecies

Alternatively, the judge, always at the first hearing or once the evidentiary phase has ended, sets the date of the final hearing, also setting time limits for filing:

1. written briefs containing the parties’ final pleadings (no later than 60 days before the final hearing)

2. the conclusive briefs (no later than 30 days before the final hearing)

3. briefs in reply (no later than 15 days before the final hearing)

The general attempt to anticipate the moment at which the subject matter of the dispute must be defined should allow the judge – in theory – to better assess (already informed from the first hearing) which direction to give to the proceedings.

This is also the aim of the introduction of the interim order of acceptance/dismissal (par. 2 iii. above). This tool is a particularly important innovation by which the lawmakers seem to want to imitate similar tools in other legal systems, such as the French référé provision or the Anglo-Saxon summary judgment, in order to reduce the length of time the parties must wait to obtain justice in cases where the dispute appears easy to adjudicate.

3. Reform of the appeal proceedings with a view to reducing the number of appeals and to making such proceedings faster. More specifically:

i) Limiting the Court of Appeal’s ability to send a case back to the court of first instance only to situations where there has been a violation of the adversarial principle during the first instance proceedings.

ii) Reintroduction of the judge-rapporteur (giudice istruttore).

iii) Overcoming the “filter” system on appeal (filtro in appello). In the case of inadmissible or manifestly grounded/groundless appeals, the Court decides after an oral discussion.

iv) Amendment of the rules on the suspension of the interim enforceability of judgments. Whereas it was previously possible to suspend enforceability in the presence of “serious and well-grounded reasons”, the judge will now be able to suspend the interim enforceability of the first instance judgment if “the appeal appears manifestly grounded” or if the enforcement of the decision can result in “serious and irreparable harm” for the losing party. The prognosis as to the merits of the appeal could therefore have an important anticipatory effect on the decision and thus significantly alter the dynamics of the proceedings.

3. Reform of the proceedings before the Italian Supreme Court (Corte di Cassazione) and, in particular:

i) Changes regarding the “filter system” for proceedings before the Italian Supreme Court with the introduction of a fast-track procedure for the decision of inadmissible or manifestly ungrounded appeals. The President of the relevant division, or a delegated judge, may suggest a possible resolution to the parties’ lawyers. The parties can waive the appeal (thereby saving on court fees) or insist on a decision by the court (to be taken in chambers).

ii) Introduction of a preliminary referral. The first instance court may submit to the Supreme Court a request to interpret a legal issue that has never been interpreted by the Supreme Court before and which could potentially affect multiple other proceedings.

iii) Introduction of a new ground for revocation of judgments that have become final and binding, in the event that the principle established by such decisions has been declared by the European Court of Human Rights to be contrary to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Conclusion

The lawmaker, with such reform of the Italian civil proceedings, aims to reduce, from 2024, the backlog and duration of civil proceedings. These changes, however, do not seem to offer a real disincentive to the high impetus for litigiousness that characterises Italy, and do not affect the many critical aspects that largely contribute to the length of proceedings. For example, time limits for judges remain non-peremptory, and the number of written briefs to be filed by the parties remains substantially unchanged. Given these premises, it remains to be ascertained how legal practitioners will implement the potentially positive aspects of this reform and, in particular, the interim order for acceptance or rejection of the claims.

It is precisely in the everyday implementation of the reform that the new rules of civil procedure will be tested, and it is hoped that this does not stay a reform in name only.