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Article Italy: Constitutional Court Declares Civil Procedure Code Provision on Availability of Alternative Dispute Resolution Mechanism for Credit Collection Unconstitutional

On November 8, 2023, Italy’s Constitutional Court declared unconstitutional a provision of the Italian Civil Procedure Code (C.P.C.) concerning the availability of the “technical consultation mechanism” as an alternative resolution method for cases arising from credits other than contractual violations or torts. (Decision No. 222 of November 8, 2023 (in Italian).)

Underlying Case

In the underlying case, the plaintiff had acquired real estate during an enforcement proceeding for damages and, after having incurred expenses to renovate the concerned property, discovered that, due to an error in the property title, the work had been performed on a different adjacent property, which was co-owned by the defendants. (Decision No. 222, Considerations of Fact No. 1.1, para. 1.) The plaintiff then requested the tribunal to use the consultation mechanism to determine the compensation owed by the defendant co-owners of the second property on the basis of an unjust enrichment claim. (Para. 1.) The defendants objected, arguing that the credit claimed did not fall within the required scope of the consultation mechanism to settle the dispute in accordance with article 696-bis, paragraph 1, first phrase of the C.P.C. (the challenged provision). (Para. 2.)

The Challenged Provision

The request was initiated by the Ordinary Tribunal of Bari, which claimed that the challenged provision excluded the use of the consultation mechanism as an alternative resolution method for the collection of credits arising from acts or facts suitable for producing credits in accordance with general Italian law, in addition to credits deriving from contractual violations or torts. (No. 1, para. 1.) The referring tribunal raised the possibility that the challenged provision was contrary to the Italian Constitution’s articles 3 (equality before the law) and 24 (right of self-defense and due process of law). (Para. 1.)

The referring tribunal noted that the challenged provision would violate the constitutional guarantees of equality before the law and the right to due process as it would unlawfully differentiate between creditors whose credits originate in contracts or torts, and other creditors whose credits arise from other situations, such as that of unjust enrichment, as in the underlying case. (No. 1.4, para. 7.) In particular, the referring tribunal raised the possibility that the challenged provision violated the aforementioned constitutional guarantees because it did not provide that the consultation mechanism may be requested to determine the credits deriving not only from contractual or tort obligations, but also from other residual obligations deriving from any other act or fact capable of producing them, in accordance with the Italian legal system. (No. 1, para. 3; no. 1.2; no. 1.4, para. 4.)

Reasoning of the Constitutional Court

The Constitutional Court noted that the challenged provision is part of the recent legislative trend toward the spread and strengthening of alternative dispute resolution (ADR) remedies in Italy, of which mediation, assisted negotiation, and transfer of the dispute to the arbitration seat are paradigmatic expressions. (Considerations of Law No. 4.2, para. 1.) Concerning the consultation mechanism, the court recalled its own jurisprudence noting that through this mechanism the legislator has offered the parties the possibility of obtaining, before a trial, a technical evaluation regarding the existence of facts and the extent of the damages, with the expectation that, on the basis of this evaluation, the parties may be able to settle their disputes. (No. 4.1, para. 2.)

The court also noted that under the challenged provision, the judge must verify the conditions of admissibility of the consultation mechanism, which pivot around the inadmissibility or baselessness of factual questions and the relevance of the facts as determined through an expert investigation. (No. 4.4.1, para. 1.) The court highlighted that the respective judge must also assess whether the controversy is legally susceptible to a conciliatory solution and whether there are no discernible legal obstacles to this solution. (No. 4.4.1, para. 2.) Furthermore, the court mentioned that upon instituting the consultation mechanism, the judge must appoint an expert and formulate the questions relevant for a technical-scientific evaluation of the facts. (No. 4.4.2.) The court noted that if the parties reach a settlement, this must be approved by the judge through an enforceable judicial decree; if not, the judge must order a formal trial on the merits. (No. 4.1, paras. 1 & 2.) In this sense, the court sustained, like judicial conciliation, the consultation procedure does not constitute an alternative to judicial jurisdiction, but a different form in which the judiciary performs its functions. (No. 4.5, para. 2.)

The court declared that, as is the situation with all ADRs, the consultation mechanism is made available to all litigants under the Italian Constitution. (No. 4.5, para. 4.) The court definitively held that by not allowing the consultation mechanism for cases other than those based on contractual or tort damages claims, the challenged provision had violated the Italian Constitution. (No. 5.3, para. 1.)

Decision of the Constitutional Court

The court declared the constitutional illegitimacy of article 696-bis, paragraph 1, first phrase of the Italian Civil Procedure Code, in light of articles 3 and 24 of the Constitution, because it admitted the consultation mechanism only for credits deriving from contractual or tort obligations, and not also for credits deriving from acts or facts suitable for producing credits in accordance with general Italian law. (No. 6.1 and Holding.)

Dante Figueroa, Law Library of Congress
February 14, 2024

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Chicago citation style:

Figueroa, Dante. Italy: Constitutional Court Declares Civil Procedure Code Provision on Availability of Alternative Dispute Resolution Mechanism for Credit Collection Unconstitutional. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-02-13/italy-constitutional-court-declares-civil-procedure-code-provision-on-availability-of-alternative-dispute-resolution-mechanism-for-credit-collection-unconstitutional/.

APA citation style:

Figueroa, D. (2024) Italy: Constitutional Court Declares Civil Procedure Code Provision on Availability of Alternative Dispute Resolution Mechanism for Credit Collection Unconstitutional. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-02-13/italy-constitutional-court-declares-civil-procedure-code-provision-on-availability-of-alternative-dispute-resolution-mechanism-for-credit-collection-unconstitutional/.

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Figueroa, Dante. Italy: Constitutional Court Declares Civil Procedure Code Provision on Availability of Alternative Dispute Resolution Mechanism for Credit Collection Unconstitutional. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-02-13/italy-constitutional-court-declares-civil-procedure-code-provision-on-availability-of-alternative-dispute-resolution-mechanism-for-credit-collection-unconstitutional/>.