In order to contrast the current epidemiological emergency, on March 17, 2020 and April 8, 2020 the Italian government issued immediately enforceable measures (see Section 83 of the so called Decree “Cura Italia” no. 18/2020 and Section 36 of the so called “Decreto Liquidità” no. 23/2020).
Here follows a brief overview of the provisions relating to the civil proceedings.
What is happening to the pending proceedings?
All hearings which had been scheduled in the period March 9, 2020, to May 11, 2020, must be postponed.
- Pleadings of the parties and the orders of the Courts
During the aforementioned period March 9, 2020, to May 11, 2020, the deadline for filing any judicial pleadings is suspended.
Also, judges will have to wait until the end of the suspension to issue a judgment or an injunction.
In compliance with the restrictive measures adopted by the government, some courts (e.g. Turin) ordered their clerks to refuse the filing of non-urgent pleadings.
- Proceedings pending before the Labor Court
Hearings and deadlines are suspended until May 11, 2020, also with regard to these proceedings.
In the absence of specific indications from the legislator, in the proceedings pending before the Labour Court, the terms relating to the cases in which is applied the so-called rito Fornero (a fast proceedings only for disputes concerning the ascertainment of the validity of dismissals) are also to be considered suspended.
And in case of alternative dispute resolution proceedings?
The suspension is also applicable to:
- mediation proceedings pursuant to Legislative Decree no. 28/2010;
- assisted negotiation proceedings pursuant to Law no. 162/2014;
- all alternative dispute resolution proceedings regulated by special laws;
if the above proceedings:
- have been commenced before March 9, 2020; and
- are required by the applicable law as a condition to bring a following action in the courts.
In the emergency legislation there are no references to arbitration proceedings, which are typically regulated by the parties.
Can new proceedings be introduced?
During the period of suspension, it is not possible to commence new proceedings.
In concrete terms, this means that during the period of suspension, for example, the following pleadings shall not be served:
- writs of summons;
- writs of appeal; or
- applications to oppose against a summary injunction.
In any case, if served during the suspension, they will take effect only after the end of the suspension. For example, if an injunction is served on April 7, the 40-day term for opposing against it will start to run from May 12 and not before.
Generally, in the majority of ordinary proceedings, the deadline for filing a statement of defense expires 20 days before the first hearing. In the event that the deadline for the filing of such pleading expires during the suspension, the judge will have to postpone the first hearing from which the deadline begins to run so that it can be respected.
As far as enforcement proceedings are concerned, it should be noted that although it is not prohibited to serve a request of payment, it will not be permissible to proceed with the seizure.
Exceptions: Proceedings to which suspension is not applicable
The suspension is not applicable to all proceedings without distinction. Article 83, paragraph 3, of the Law Decree “Cura Italia”, provides for a number of exceptions, most of which concern judgments relating to fundamental protection of the person.
The exceptions referred to in paragraph 3 include proceedings aimed at suspending the enforceability of first and second instance judgments.
In any case, the suspension is not applicable to all proceedings whose delayed discussion may cause serious prejudice to the parties. The declaration of urgency is issued by the judge handling the case (if the action has been commenced) or by the head of the judicial office or their delegate (if the action has not been commenced).
And after the suspension? Future scenarios
In the period immediately following the suspension, from May 12 to June 30, 2020, the Courts may, inter alia, provide that:
- the hearings take place by means of remote connections;
- the hearings may be postponed after June 30, 2020;
- some hearings will be replaced by the exchange of written notes, with subsequent adoption of the judge’s decision outside the hearing.
By order of March 10, 2020, the General Director for Information and Automated Systems of the Ministry of Justice (so-called DIGSIA) identified the software that can be used for remote hearings: Skype for Business and Teams.
For the time being, there are no clear provisions regarding hearings that require the participation of the parties: for example, in the case of conciliation, formal interrogation or testimony.
It cannot be excluded that, in the event that the current emergency should continue for a long time, the parties in question may also be required to connect remotely, where possible, or to make written statements.
Time limitation and forfeiture of rights
How can I interrupt the time limitation period and the forfeiture of rights limit if a writ of summons cannot be served during the period of suspension?
The time limits under examination can always be interrupted by means of simple letters of claim, except in cases where the applicable law requires the service of a judicial pleading.
The legislator has pointed out that in the period March 9, 2020, to June 30, 2020, the running of the time limitation period and the forfeiture of rights period is suspended if the related rights can be claimed exclusively by precluded activities (see Art. 83, paragraph 8 of the Law Decree “Cura Italia”).