Article 1 of Law 218/2011 – amending article 645 of the Italian Code of Civil Procedure (hereafter c.p.c.) – will come into force on January 20, 2012.
The aforementioned provision has been introduced in order to resolve the problem which had been created by the judgment handed down by the United Civil Sections of the Italian Supreme Court in relation to what terms should be observed by parties appearing in judgment in proceedings for the setting aside of decrees of injunction.
For convenience’s sake, set out below is a brief description of the case at hand.
The provision in question is article 645 c.p.c., paragraph two, pursuant to which, once a request to set aside a decree of injunction has been made, the proceedings continue before the judge seized of the matter in accordance with the ordinary rules of civil procedure. The terms for appearing in judgment are, however, halved.
A consistent and uniform body of case law of the Supreme Court has held, however, that the halving of the terms provided for under article 645 c.p.c is not automatic but is the result of the party who requests the setting aside of the decree of injunction assigning the other party a term for appearing in judgment which is shorter (i.e. a term of 45 days between the date of service of the writ of summons and the date of the first hearing of appearance) than the term of 90 days ordinarily assigned in civil proceedings.
The shorter term of five days (from the date of service of the writ of summons requesting the decree of injunction to be set aside) for appearance in judgment – as opposed to the ordinary term of ten days) – was held to be solely and exclusively applicable, therefore, in the case in which the plaintiff assigned a shorter term.
Judgment no. 19246/2010 handed down by the United Sections of the Supreme Court, however, completely overturned the above-described precedent.
The Court ruled, in fact, that the terms for appearing in judgment to be applied should be halved not only in the event that the term for appearing in judgment was shorter than the one provided under the law but should be applied in all proceedings for the setting aside of decrees of injunction. The Supreme Court judges held, in fact, that article 645 c.p.c halves the term for appearing in judgment in proceedings involving the setting aside of decrees of injunction, thus overturning (as stated above) the aforementioned body of case law which had lasted for over forty years
The problem was posed, however, of whether the aforementioned judgment was applicable to proceedings which had already been commenced, also in consideration of the fact that – in the event of an answer in the affirmative – all the aforementioned proceedings would necessarily have to be discontinued, with obvious effects on the right to due process (guaranteed by article 24 of the Italian Constitution).
The case law of the lower courts has, in relation thereto, reached contrasting decisions.
Some proceedings – in which the appearance in judgment took place five days after the date of service of the writ of summons requesting the setting aside of the decree of injunction – were discontinued (Court of Ferrara dated 11-11-10, Court of Tivoli dated 13-10-10, Court of Lanciano dated 4-10-10).
Other proceedings which had been previously commenced were not, instead, discontinued. The judges in question did not, therefore, apply the judgment of the United Sections (also on account of the fact that the subsequent interpretation of a procedural provision by the Italian Supreme Court can never have retrospective effect; cfr. Court of Vibo Valentia dated 23-11-10, Court of Latina dated 19-11-10, Court of Macerata dated 21-10-10 and Court of Rome dated 20-10-10).
The party requesting the decree of injunction to be set aside is, in any event, entitled to have the term for appearing in judgment re-opened pursuant to article 153 or 184 bis c.p.c., with the result that the latter’s appearance in judgment must be deemed – also in the light of the need to observe the rules on due process and of the fact that whosoever acts during proceedings must be able to rely on a consistent body of case law which has already been formed (Court of Avezzano dated 16-12-2010) – to be timely (Court of Piacenza dated 2-12-10, Court of Brindisi dated 22-11-10, Court of Turin dated 11-10-10), without any further activity having to take place (Court of Rovigo dated 25-11-10).
The Supreme Court’s decision has also been criticized in terms of what rules will be applied in future.
The Court of Belluno has ruled, with its judgment handed down on 2-11-2010, that the decision of the United Sections was a mere obiter dictum and did not , as a result, have any value as a precedent.
Other lower courts (Court of Appeal of Rome dated 30-11-10, Court of Appeal of Rome dated 17-11-10, Court of Catanzaro dated 4-11-10) have, furthermore, ruled that no account should be taken of judgment no. 19246 dated 2010.
In relation thereto, the Supreme Court, with its judgment no. 6514, once again referred the matter to the United Sections since it was of the opinion that the above-described terms should not be halved (even when the terms assigned were those established by the law).
In the light of the above, the legislator’s intent in enacting new provisions is easily comprehensible: Article 1 of Law 218/2011, published in the Italian Official Gazette dated January 5, 2012, provides, in fact, that, the proviso «the terms for appearance in judgment are halved» is repealed.
Article 2 contains, moreover, the following transitory provision: In proceedings pending before the coming into force of this law, article 165, paragraph one of the Italian Code of Civil Procedure shall be interpreted in the sense that the halving of the term within which the plaintiff is to appear in judgment is applicable – in proceedings for the setting aside of decrees of injunction – only in the event that the plaintiff has assigned to the defendant a term which is lower than the one provided for under article 163-bis, paragraph one c.p.c..
What changes are introduced by the new provisions?
The answer is simple.
With reference to proceedings commenced after January 20, 2012, the term of ten days from the date of service of the writ of summons requesting the setting aside of decrees of injunction shall normally be applied.
As regards, instead, proceedings commenced prior to January 2012, the aforementioned terms is solely and exclusively applicable in the event that the plaintiff has availed itself of the possibility to reduce the terms for appearing in judgment (expressly excluding therefrom any automatic effect).
