Civil litigation in Italy represents one of the areas that has received specific attention from the Italian Government due to its constitutional relevance. The provisions that were enacted had to balance the constitutional right of access to justice on the one side, and safeguard the wellbeing of all interested parties on the other.
Emergency measures applicable to civil litigation
Compulsory mediation on disputes pertaining contractual obligations
Emergency measures applicable to civil litigation
With regard to the administration of justice, the Italian Government adopted the same phase-based approach that was applied to tackle the medical emergency. During the first and second phase, the authorities were driven by the necessity to prevent the spread of the virus and to avoid harming any of the parties involved in judicial proceeding and in the administration of justice in general. For this reason, unprecedented measures were enacted by the Government which had the effect of halting thousands of trials, with only a limited number of exceptions.
Even though the reopening commenced on 1 July 2020, it was not possible to resume activities at pre-COVID levels because of the limited time courts across the country had to prepare. This was to be ascribed to the uncertainties related to the end of the second phase which was initially set for the 31 July 2020, but was then rescheduled for the 30 June 2020.
For this reason, the only activities that took place were mostly those already scheduled, making the July reopening more of a test of what to expect in September after the judicial summer recess period, rather than a full return to normality. To this regard and despite the difficulties, this period has offered the opportunity to introduce some kind of innovation by allowing a limited number of hearings to be conducted remotely.
It is though important to underline that this situation has definitely increased the backlog of Italian civil courts and the new cases expected as a direct consequence of the lockdown have already prompted specific measures to reduce the courts’ workload.
Compulsory mediation on disputes pertaining contractual obligations
We have already dedicated a separate report on the issues related to the “Contractual Obligations Under Italian Law and COVID-19 Measures”. Here we will focus more on the provisions put in place to reduce litigation deriving directly from those measures.
Pursuant to article 3, para. 6-ter of Decree Law (DL) 23 February 2020, n. 6 (converted into Law 5 March 2020, n. 13) disputes pertaining to contractual obligations where the debtor claims not to have been able to perform correctly due to the containment measures, must undergo through a mediation procedure prior to bringing the claim before a court.
This provision already sets out the conditions for its applicability:
firstly, it only applies to those obligations that derive from a contract
secondly, the debtor has to base its incorrect performance on the containment measures issued during the COVID-19 emergency where article 3, para. 6-bis DL n. 6/2020 is taken under consideration
Applicable procedure
Article 3, para. 6-bis DL n. 6/2020 explicitly refers to article 5, para. 1-bis of the Legislative Decree (Lgs.D.) 4 March 2010, n. 28 regulating the mediation in civil and commercial matters. According to the referred provision titled “prerequisite for admissibility and relations with trial”, the party that intends to begin a judicial proceeding is required to start a mediation procedure with the assistance of a lawyer. This is a prerequisite for the admissibility of the legal action. If the mediation procedure has not been performed by the time the claimant brings its action before the court, the proceeding is suspended, and the judge orders the parties to initiate the mediation within 15 days. Failure to do so within the given deadline has two important consequences:
the terms connected to the actioned right elapse as if the legal action did not take place
the claimant has to resubmit its legal action facing additional costs
The judge’s order reschedules the hearing after the mediation has been conducted, which according to article 6 of the Lgs.D. n. 28/2010 has a duration of no more than 3.
With the inclusion of contractual disputes arising from the emergency legislation among those matters subject to compulsory mediation, the Government has clearly tried to ease the pressure on courts. Furthermore, it has also offered an opportunity to the litigating parties to resolve their dispute in a faster and less burdensome manner. Indeed, mediation can also take advantage of videoconferencing platforms thanks to the fewer formalities that are required for the procedure.
If parties are not able to reach an agreement, it will always be possible for them to bring the matter before a judge.
