Service of documents by certified e-mail (PEC) in administrative proceedings: is it permitted or not?

For more than two years, a prevailing and well-established trend in the Italian case law, had affirmed that lawyers, including lawyers acting in administrative proceedings, could serve judicial documents by electronic certified mail (PEC) (decision n. 4240 rendered by the Third Section of the Italian Council of State on 14 September 2015; decision n. 520 rendered by the Council of Administrative Justice for the Region of Sicily on 13 July 2015; decision n. 4862 and n. 2682 rendered by the Fifth Section of the Italian Council of State respectively on 22 October 2015 and 28 May 2015; decision n. 627 rendered by the Sixth Section of the Regional Administrative Court of Naples/Campania Region on 6 February 2015; decision n. 11808 rendered by the Third Section of the Regional Administrative Court of Rome/Lazio Region on 25 November 2014).

In particular, the above decisions had specified that such method of service was to be deemed admissible even if the introduction and implementation of the telematic administrative proceeding, initially scheduled to take place on 1 January 2015 and then postponed, had not yet occurred. According to the administrative judges, in fact, notifying documents in administrative proceedings by certified e-mail was a possibility provided for by articles 1 and 3-bis of Law n. 53 of 21 January 1994 (as amended by art. 25, paragraph 3, letter a) of Law n. 183 of 12 November 2011, and by art. 16-quater of Governmental Decree n. 179 of 18 October 2012, converted with amendments by law n. 221 of 17 December 2012) which had introduced the general faculty for lawyers to serve documents by certified electronic mail in civil, administrative and out-of-court proceedings as an alternative to the service of process by postal channels.

Pending the finalization of the telematic administrative proceeding, the service of process by PEC was considered to be a visible sign of the “trend of the administrative proceeding to become a wholly electronic proceeding…” (decision n. 4862 rendered by the Fifth Section of the Italian Council of State on 22 October 2015).

Although quite recently issued, the decisions outlined above seem to belong to the past!

In fact, by decision n. 189 of 20 January 2016, the Third Section of the Italian Council of State has reconsidered the issue getting to the conclusion – divergent from the one reached by the previous settled case law – that the service of process in administrative proceedings by electronic e-mail is inadmissible.

In a word, according to such newly issued decision, the service of process via PEC is inadmissible because, due to the fact that the technical regulations applicable to the telematic administrative proceeding have not yet been adopted, such proceeding is not yet fully operational. In particular, the judges have affirmed that:

“according to art. 16-quater, paragraph 3-bis of Governmental Decree 179/2012 as converted by Law n. 221/2012 of 17 December 2012”, it is to be deemed “excluded the possibility to apply to the administrative proceeding the provisions allowing to notify documents through the method at issue in civil proceedings (namely, paragraphs 2 and 3 of the same art. 16 quater), due to the fact that no specific Regulations […] laying down […] the relevant technical provisions for the administrative proceeding, have yet been adopted”;

only after such adoption, “the digital administrative proceeding will be fully ruled and the service of process by PEC will be fully operational and no longer be treated, unequivocally and unavoidably, as a special law requiring, pursuant to art. 52, paragraph 2, of the Italian Code of Administrative Proceedings, the issuance of (…) a specific presidential authorization...

The consequences of the recalled decision on the administrative proceeding are extremely serious and are worthy of being mentioned: on the basis of the aforesaid reasons, the Italian Council of State has declared the appeal unacceptable because the service of process carried out by PEC equals a lack of service (being such method of service not contemplated by the law). The Council has also excluded that the entry of appearance filed by the counterparty can work as a remedy for the invalidity of the method of service chosen, or for treating such invalidity as an excusable neglect.

Such unexpected decision has evidently bewildered all those who were just about to welcome the technological evolution of serving documents electronically.

Fortunately, the uncertainty generated by the recent decision of the Italian Council of State will not last long: the Italian Cabinet, in fact, by the President of the Council of Minister Decree n. 40 issued on 16 February 2016, has adopted the technical-operational rules aimed at implementing the telematic administrative proceeding. Such rules expressly provide for the faculty by lawyers to serve documents by PEC.

After numerous postponements and conflicting decisions, it seems that we finally are on the home straight: effective from 1 July 2016, lawyers acting in civil proceedings will eventually be able to say goodbye to the manually-filled-in return receipts and the long queues at the post offices, and to start facing the forthcoming but not less scaring adversary: i.e., the telematic proceeding!

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