The changes to the Code of Civil Procedure made by the CD. Cartabia Reform

1.2 The cooperation duties of the parties and third parties

Also on the level of general principles, a number of changes were introduced to strengthen the duties of loyal cooperation of the parties and third parties.

More specifically, first and foremost, Article 96 of the Code of Civil Procedure, which governs aggravated liability, was amended by adding a fourth paragraph, by which it was provided that, in the cases governed by the preceding paragraphs, the Judge may impose on the losing party the pecuniary penalty, determined in a sum of money not less than 500 euros and not more than 5,000 euros, to be paid to the fine fund, as compensation for the damage caused to the Administration of Justice for the unnecessary use of resources spent in the management of the trial.

With the same purpose of reinforcing the duties of loyal cooperation of the parties and third parties, Articles 118 and 210 of the Code of Civil Procedure were, then, also partially amended, through the inclusion of the provision of procedural consequences and financial penalties (see above) in cases of unjustified refusal to execute an order for inspection or things imposed by the judge during the course of the investigation and in cases of unjustified refusal or failure to comply with respect to allowing the order for exhibition.

However, the sanction is not automatic, always allowing the Judge to assess whether the failure to comply is justified.
Finally, a rather prejudicial consequence has been introduced, in the cases governed by Article 210 c.p.c., again in the hypothesis of an unjustified refusal to comply with the order to exhibit, in which case it has been provided that the Judge may infer from such failure arguments of evidence pursuant to Article 116, paragraph 2, c.p.c.

1.3 The new discipline of hearings

Among the most significant changes is certainly the provision regarding the "stabilization" of remote telematic hearings and paper hearings, which were introduced into our procedural system during the pandemic emergency.
More specifically, the new third paragraph of Article 127 of the Code of Civil Procedure, rubricated "Direction of the Hearing," dictates a provision of principle, according to which the Judge may order that the hearing be conducted by means of remote audiovisual connections or that it be replaced by the filing of written notes, in accordance with the provisions of the subsequent Articles 127 bis and 127 ter c.p.c., which regulate in detail these alternative modalities with respect to the hearing in presence.
And indeed, Article 127 bis c.p.c, under the heading "Hearing by means of audiovisual connections," provides in its first paragraph that the conduct of the hearing by means of remote audiovisual connections may be ordered by the judge when the presence of persons other than the defense counsel, the parties, the prosecutor and the judge's aides is not required.
The second paragraph, similarly to what is provided for the cartular hearing, regulates the terms of communication of the judge's order and the exercise of the parties' right of opposition.
In order to give effect to this faculty of opposition, in fact, it has been provided that the order by which the judge orders the hearing to be held by means of remote audiovisual connections shall be communicated to the parties at least fifteen days prior to the hearing and that each of the parties constituted, within five days of the communication, may request that the hearing be held in person.
The Judge, upon such a request, is obliged to rule within the next five days by a non-appealable decree, by which he may also order that the hearing be held in the presence of the parties who have requested it and with audiovisual connection for the other parties.
Similarly, the Legislature introduced Article 127b of the Code of Criminal Procedure, headed "Filing of written notes in lieu of the hearing," which first, in the first paragraph, provides that the hearing, even if previously scheduled, may be replaced by the filing of written notes, containing only the petitions and conclusions, if it does not require the presence of parties other than defense counsel, the parties, the prosecutor and the judge's aides.
It then adds that, in the same cases, the hearing is replaced by the filing of written notes when all the parties constituted request it.
Subsequent paragraphs regulate the procedure by which the judge orders the exchange of the written notes that replace the hearing, the manner through which the parties may file objections, and the consequences arising therefrom.
In particular, it is provided that with the order by which it replaces the hearing, the judge assigns a peremptory term of not less than fifteen days for the filing of the notes; that each party formed may object within five days of the communication; that the judge shall provide in the following five days with a non-appealable decree (similar to the provisions of Article 127 bis c.c.p.c.) and, in the case of an application proposed jointly by all parties, orders accordingly.
Assigned the time limit for the exchange of written notes, the Judge must, therefore, provide within thirty days from the expiration of the aforementioned.
In the event that none of the parties files the notes within the granted time limit, the Judge shall assign a new peremptory time limit for filing the written notes or set a hearing; if none of the parties, again, fails to file the notes within the new time limit or appear at the hearing, the Judge shall order that the case be removed from the register and declare the case extinct, with a mechanism similar to that provided, in the event of failure of all parties to appear at two successive hearings, by Articles. 181 and 309 c.p.c.
Finally, it should be pointed out that the Legislature has specified that the day of expiration of the time limit assigned by the judge for filing the notes is considered the date of the hearing, thus reconnecting to it all the effects consequent thereto.

1.4 The changes in the rules on notification.

Of certain importance are certainly the novelties introduced by the Reform regarding notifications and relating to the introduction of the obligation of notification by means of PEC if the addressee is a person obliged to have a PEC address resulting from public lists, or has elected a digital domicile in accordance with Legislative Decree no. 82 of 2005.
Notifications by Certified Electronic Mail (PEC) or qualified certified electronic delivery service may be performed without time limits and are considered perfected, for the notifier, at the moment when the acceptance receipt is generated and, for the addressee, at the moment when the delivery receipt is generated.
If the latter is generated between 9 p.m. and 7 a.m. on the following day, service shall be deemed perfected for the addressee at 7 a.m.
If service is impossible or unsuccessful, for reasons attributable to the addressee, the lawyer shall effect service by entering the confidential web area provided for in the Business Crisis and Insolvency Code (Art. 359) and the
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service is deemed to have been effected on the tenth day following the day on which the entry is made.
If, on the other hand, the cause is not attributable to the addressee, service may be effected in the ordinary way.
In order to coordinate the changes introduced by the Reform with the codified rules, Article 137 of the Code of Civil Procedure has been amended through the addition of the sixth and seventh paragraphs.
In this regard, the sixth paragraph establishes that the lawyer performs notifications in the cases and in the manner provided by law, thus acknowledging the discipline contained in Law No. 53 of 1994, dedicated to notifications made directly by the lawyer.
The seventh paragraph, on the other hand, was necessary in order to coordinate the obligation of telematic service by the lawyer with the prohibition of the judicial officer, in such cases, to effect service, establishing that the judicial officer shall effect service at the lawyer's request if the latter does not have to effect service by certified electronic mail or qualified certified electronic delivery service or by a different method provided for by law, unless the lawyer declares that service by the aforementioned method is not possible or unsuccessful due to causes not attributable to the addressee. The declaration shall be noted in the service report.
Further amendments were also made to Article 139 of the Code of Civil Procedure, the fourth paragraph of which was replaced by the following: "If the copy is delivered to the doorman or neighbor, the bailiff shall record this in the service report, specifying the manner in which he ascertained their identity, and shall notify the addressee of the service of the document, by registered letter."
The suppression of the signature by the recipient, when the delivery is made by a person who, like the judicial officer, holds the capacity of public official and returns written report of the activity performed, with evidentiary value of the public act, extends to similar cases, without changing its nature, the certifying power that the officer already has with reference to the case in which the recipient refuses to sign or cannot sign, and facilitates the telematic flow of procedural acts.
Finally, Article 149 bis c.p.c. was amended, providing for service via pec also for the notification acts typically belonging to the judicial officer.

2. THE CHANGES RELATED TO THE ORDINARY PROCEDURE OF COGNITION.

2.1 The introductory stage of trial

The most important innovations introduced by the so-called Cartabia Reform concern the introductory phase of the civil judgment of first instance before the Court.
And in fact, the Reform has provided for an inversion with respect to the current scanning of procedural time, in the sense that the written pleadings, with which the parties define their assertive activity and advance the preliminary investigation requests, are no longer filed
after the first appearance hearing, with terms to run from it, but, on the contrary, must be filed before the first appearance hearing, within terms to be calculated backwards from it.
To this end, first of all, Articles 163(3) and (4) and 167(1) of the Code of Civil Procedure were amended.
More specifically, the codification of the principles of clarity and conciseness entailed the insertion of the phrase "clearly and specifically" where the content of the summons and the response is regulated.
Subsequently, No. 7) of Article 163(3) of the Code of Civil Procedure was amended through the addition of a new caveat that the summons must necessarily state in the vocatio in ius, namely, "that technical defense by counsel is mandatory in all judgments before the court, except for the cases provided for in Article 86 or by special laws, and that the party, if the legal prerequisites exist, may apply for admission to legal aid."
In addition, in order to coordinate the new procedural framework, the deadline for the defendant's appearance (which must be the subject of a warning contained in the summons) has been set at seventy days before the hearing, in order to allow the exchange of written pleadings prior to the first appearance hearing.
Again with the intent of coordination and with the goal of ensuring concentration and reasonable duration of the trial, an additional requirement of the writ of summons was added, in item 3 bis, consisting of the indication, in cases where the application is subject to a condition of procedability, of the fulfillment of the burdens provided for its fulfillment.
The need to reshape all procedural deadlines of the introductory stage made it necessary to amend Article 163 bis of the Code of Civil Procedure, with the extension of the time limit to appear to one hundred and twenty days.
The term of seventy days before the appearance hearing set in the summons becomes, therefore, the new time limit for preclusions and forfeitures under Article 167 c.p.c.

2.2 Preliminary verifications by the judge

With the new system, in which the definition of the thema decidendum and the thema probandum must take place at a stage prior to the first appearance hearing, through the exchange of written pleadings to be filed within deadlines to be calculated backwards from it, it has become necessary to provide a mechanism that allows the Judge to make all preliminary verifications even before the aforementioned deadlines begin to run.
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Therefore, in the fifteen days following the expiration of the period referred to in Article 166 of the Code of Civil Procedure. for the constitution of the defendant, the Judge is required to make all ex officio verifications functional to ensure the regularity of the cross-examination, such as, in particular: (i) the verification of its ritual establishment and its integrity if there is a hypothesis of necessary lis pendens; (ii) the calling in of third parties; (iii) the nullity of the introductory acts; (iv) defects of representation, assistance or authorization; (v) the existence of conditions of procedural nature or additional issues detectable ex officio to be indicated to the parties, which he deems appropriate to be dealt with.
At the outcome of these verifications, if the Judge has to make findings and take measures regarding these profiles, the same are then dealt with by the parties in the supplementary pleadings referred to in Article 171b of the Code of Civil Procedure.
If measures are taken, the Judge, if necessary, schedules a new hearing for the parties to appear, with respect to which the terms provided for in Article 171 ter c.p.c. will run.
In any case, then, provision has been made for the Judge, even if he does not take action pursuant to the second paragraph, to postpone, up to a maximum of forty-five days, the date of the first hearing.
With regard to the checks, however, it seems appropriate to highlight the inclusion of two new checks: the first, relating to the conditions for the procedability of the application and, the second, relating to the existence of the prerequisites for proceeding by simplified procedure.
In these cases, it is provided that the judge must indicate the issues to the parties, soliciting cross-examination in this regard, as part of the pleadings under Article 171b of the Code of Civil Procedure.
Among the preliminary verifications that the judge is required to carry out, there is also the verification of the regularity of the power of attorney to the defense counsel, in order to detect any defects in representation, assistance or authorization.
Another change relates to the second paragraph of Article 182 of the Code of Civil Procedure, which appropriately clarified that the time limit for amnesty is to be assigned by the judge even in the case of total lack of power of attorney to the defense counsel.

2.3 The delimitation of the thema decidendum and thema probandum

As already anticipated, in order to make sure that the first appearance hearing is reached after the complete definition of the thema decidendum and thema probandum, the current scansion of procedural time has been reversed, in the sense that the written pleadings, with which the parties define their assertive activity and make preliminary requests, are no longer filed after the first appearance hearing, with deadlines running from it, but, on the contrary, must be filed before the first appearance hearing, within deadlines to be calculated backward from it.
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To this end, the delegated legislature inserted Article 171b c.p.c., aimed at regulating the supplementary pleadings that the parties may file once the judge's preliminary verifications have taken place and always before the hearing.
Therefore, with the supplementary pleadings, the parties may, under penalty of forfeiture:
1) at least forty days before the hearing referred to in Article 183, propose the claims and exceptions that are a consequence of the counterclaim or the exceptions proposed by the defendant or the third party, as well as specify or modify the claims, exceptions and conclusions already proposed. In the same pleading, the plaintiff may ask to be allowed to call in a third party if the need has arisen as a result of the defendant's defenses in the response;
2) at least twenty days before the hearing, reply to the new or amended claims and exceptions made by the other parties, propose the exceptions that are a consequence of the new claims made by them in the pleading referred to in number 1), as well as indicate the means of proof and make documentary productions;
3) at least ten days before the hearing, reply to the new exceptions and indicate the contrary evidence.
The three supplementary pleadings coincide, in substance, with those currently covered by Article 183, paragraph 6, c.p.c, but must be filed prior to the first hearing.

2.4 The new first hearing under Article 183 c.p.c.

With the changes brought about by the reform, the first appearance hearing acquires a central role, being delineated as the moment when the judge is already in a position to assess whether there is a need for a preliminary investigation, that is, whether the case is already ripe for decision
First of all, a compulsory attempt at conciliation has been introduced as a general rule for the ordinary procedure.
For this reason, it is stipulated that the parties must appear in person at the first hearing and that failure to appear, without a justifiable reason, is assessable under Article 116(2) of the Code of Civil Procedure.
Then, the third paragraph stipulates that the judge shall freely interrogate the parties and ask for the necessary clarifications on the basis of the attached facts, then proceeding to the mandatory attempt at conciliation under Article 185 of the Code of Civil Procedure, the express reference to which allows the parties, if they so desire, to be represented for such fulfillment.
The fourth paragraph provides that, at the same hearing, the Judge shall provide for the preliminary motions, preparing the trial schedule and setting the hearing for the taking of evidence within ninety days.

2.5 The decision-making phase

Similarly to the introductory phase, also with reference to the decisional phase, the Reform under consideration has implemented a reversal of the deadlines for filing closing briefs with respect to the remittal of the case for decision.
This important change necessitated first of all the deletion of Article 190 c.p.c, which provided time limits for the filing of closing statements and rebuttal briefs following the statement of conclusions.
Then, action was taken on Articles 189 and 275 of the Code of Civil Procedure, for cases of collegiate jurisdiction, and on Article 281 quinquies of the Code of Civil Procedure, for cases of monocratic jurisdiction.
In both cases, the new decisional form provides for a hearing to be set, known as the hearing of the case back to the collegium or the hearing of the case for decision, with respect to which three terms run backwards, respectively: (i) for the filing of the notes for the statement of conclusions (60 days before); (ii) for the filing of the closing statements (30 days before); and finally, (iii) for the filing of the reply briefs (15 days before).
These deadlines may be waived by the parties, in which case the Judge may hold the case immediately for decision.
In the new system, the time limit for the filing of the judgment (which has remained unchanged in the measure of 60 days for collegiate cases and 30 days for monocratic cases) no longer runs from the expiration of the time limit for the filing of the parties' reply briefs, but rather, given the mechanism of backward deadlines, from the hearing at which the case is remitted to the panel, i.e., in decision.
In addition, Articles 275 and 281 quinquies of the Code of Civil Procedure reserve, however, for the party the possibility of requesting that the case be discussed orally, regulating decision-making forms of mixed type, with partly written and partly oral discussion.
In conclusion, as a result of the interventions of the delegated legislature, various decision-making forms can thus be outlined, which are essentially specular for cases of collegial competence and for those of monocratic competence.
The ordinary scheme is the one with written treatment, in which the judge, deeming the case ripe for decision, sets the hearing for remittal for decision (or to the panel) and assigns the parties three peremptory deadlines: 1) up to sixty days before that hearing, for the filing of written notes containing only the specification of the conclusions; 2) up to thirty days before that hearing, for the filing of closing statements; 3) up to fifteen days before the hearing for the filing of reply briefs.
Alternatively, a mixed-treatment decisional scheme may be adopted, but in that case a party's petition is always required and cannot be ordered ex officio. This scheme provides for the setting of the hearing for oral argument and for the remittal of the case for decision, as well as for the assignment of only two mandatory deadlines: 1) up to sixty days before the hearing, for the filing of written notes containing only the specification of the conclusions; 2) up to thirty days before the hearing, for the filing of closing statements.
Finally, the decisional scheme of exclusively oral treatment may be adopted, in which the judge, even on his own motion, invites the parties to specify the conclusions and sets the hearing for the oral discussion of the case, during which the defense attorneys illustrate the reasons underlying the conclusions to which they refer, and decides the dispute, pronouncing the judgment incorporated in the minutes and reading the operative part and the concise statement of the factual and legal reasons for the decision. Alternatively, the judge invites the parties to state their conclusions and sets a hearing for oral argument, at the outcome of which he or she holds the case for decision.
More articulated is the oral-decision scheme for cases of collegial jurisdiction, because in this case there is still a time limit for filing the briefs and an additional time limit for closing statements.
What characterizes this decisional scheme is that, at the conclusion of the discussion, the panel pronounces the judgment by reading the operative part and the concise statement of the factual and legal reasons for the decision, and the judgment is deemed to be published when the president signs the minutes containing it.

3. THE NEW SIMPLIFIED PROCEDURE OF COGNITION

La Riforma in esame, sulla falsariga del procedimento disciplinato dall’art. 702 bis e s.s. c.p.c., ha introdotto nel Libro II, il nuovo «procedimento semplificato di cognizione».
Tale procedimento si caratterizza per l’essere pienamente alternativo a quello ordinario, in quanto a cognizione piena, ma sommario e deformalizzato solo per quanto riguarda l’istruttoria e l’iter procedimentale.
Al fine di disciplinare tale nuovo istituto, il legislatore delegato ha, innanzitutto, inserito un primo articolo, l’art. 281 decies c.p.c., volto a definire l’ambito di applicazione del rito semplificato.
Il primo comma di tale norma, infatti, indica quali caratteristiche devono avere le cause per essere obbligatoriamente trattate con il rito semplificato, facendo riferimento a quattro alternativi presupposti: (i) quando i fatti di causa non sono controversi; (ii) quando la domanda è fondata su prova documentale; (iii) o è di pronta soluzione; ovvero (iv) richiede un’istruzione non complessa.
Il secondo comma prevede, poi, che il rito semplificato possa essere adottato, a scelta della parte, in tutte le cause nelle quali il Tribunale giudica in composizione monocratica.
Il successivo art. 281 undecies c.p.c. disciplina, invece, la forma della domanda e la costituzione delle parti.
A tal fine, il primo comma prevede che la comanda debba essere introdotta con ricorso contenente le indicazioni di cui ai numeri 1), 2), 3), 3 bis), 4), 5), 6) e l’avvertimento di cui al numero 7) del terzo comma dell’articolo 163 c.p.c.
Il secondo comma disciplina, secondo criteri acceleratori, le modalità di fissazione dell’udienza con decreto del Giudice che assegna anche il termine di costituzione del convenuto, e si prevede, a garanzia del diritto di difesa, che il termine minimo a comparire per il convenuto sia di quaranta giorni liberi se il luogo della notificazione si trova in Italia e di sessanta giorni se si trova all’estero.
Il terzo e il quarto comma disciplinano le modalità di costituzione del convenuto, le decadenze e preclusioni e le modalità con cui chiedere la chiamata di un terzo in causa, prevedendo a tal fine che il convenuto si costituisce mediante deposito della comparsa di risposta, nella quale deve proporre le sue difese e prendere posizione in modo chiaro e specifico sui fatti posti dall’attore a fondamento della domanda, indicare i mezzi di prova di cui intende avvalersi e i documenti che offre in comunicazione, nonché formulare le conclusioni.
A pena di decadenza, inoltre, il convenuto deve proporre le eventuali domande riconvenzionali e le eccezioni processuali e di merito che non sono rilevabili d’ufficio.
Infine, ai sensi del quarto comma, se il convenuto intende chiamare un terzo deve, a pena di decadenza, farne dichiarazione nella comparsa di costituzione e chiedere lo spostamento dell’udienza. Il Giudice, con decreto comunicato dal cancelliere alle parti costituite, fissa la data della nuova udienza assegnando un termine perentorio per la citazione del terzo.
Restano, invece, invariati il termine per la costituzione del convenuto (non oltre dieci giorni prima dell’udienza) ed il termine che deve intercorrere tra la notificazione del ricorso e l’udienza di comparizione (quaranta giorni), con riferimento al quale si precisa che deve trattarsi di termine libero.
Avvenuta la regolare instaurazione del contraddittorio e fissata l’udienza di comparizione delle parti, il procedimento successivo è disciplinato dall’art. 281 duodecies c.p.c., il cui primo comma prevede che all’udienza il Giudice proceda alla verifica della ricorrenza dei presupposti per il rito semplificato, di cui all’art. 281 decies, comma 1, c.p.c., eventualmente disponendo il mutamento del rito nelle forme ordinarie. Tale facoltà di mutamento del rito, con valutazione caso per caso, è esercitabile anche nelle ipotesi in cui, trattandosi di controversia di competenza del Tribunale in composizione monocratica, la scelta del rito semplificato sia stata effettuata discrezionalmente dal ricorrente, ai sensi dell’art. 281 decies c.p.c., ma non risulti opportuna in relazione alle caratteristiche della controversia.
In caso di mutamento del rito da semplificato a ordinario il Giudice è tenuto a fissare l’udienza ex art. 183 c.p.c. rispetto alla quale decorrono, ex lege, i termini per le memorie integrative di cui all’art. 171 ter c.p.c.
Il secondo comma disciplina la possibilità per il ricorrente di chiedere di essere a sua volta autorizzato a chiamare in causa un terzo, con i medesimi limiti previsti per il giudizio ordinario.
Il terzo comma disciplina le facoltà che le parti possono esercitare a pena di decadenza all’udienza.
Il quarto comma prevede che le parti possano chiedere l’assegnazione di termini per memorie integrative e istruttorie, di cui il Giudice è tenuto a valutare la necessità, potendo modulare l’assegnazione di termini anche più brevi rispetto a quelli massimi previsti dalla norma, e comunque ridotti rispetto a quelli ordinari.
Il quinto comma prevede che, quando non provvede ai sensi del secondo e del quarto comma, e non ritiene la causa matura per la decisione, il giudice ammette i mezzi di prova a tal fine rilevanti, e procede alla loro assunzione.
Il mutamento del rito in ordinario deve essere disposto nella prima udienza, al verificarsi di due ipotesi: 1) quando non ricorrono i presupposti previsti dall’art. 281 decies, comma 1, c.p.c.; 2) quando la lite e l’istruzione probatoria si presenti complessa.
Qualora venga disposto il mutamento del rito, le preclusioni maturate nel corso del procedimento semplificato sembrano non torvare applicazione nel rito ordinario successivo, considerato che nulla viene previsto al riguardo dall’art. 281 duodecies c.p.c.
Il nuovo rito semplificato sembrerebbe incompatibile con il rito lavoro e locatizio, tenuto conto anche del diverso regime delle preclusioni.
La disciplina del nuovo rito semplificato, invece, prevede che, alla prima udienza, le parti possano, a pena di decadenza, proporre le eccezioni che sono conseguenza della domanda riconvenzionale e delle eccezioni proposte dalle altre parti.
Sempre nella prima udienza, le parti possono anche chiedere al Giudice, se sussiste un giustificato motivo, un primo termine perentorio non superiore a venti giorni, per precisare e modificare le domande, le eccezioni e le conclusioni, per indicare i mezzi di prova e produrre documenti, nonché un ulteriore termine non superiore a dieci giorni, per replicare e dedurre prova contraria.
Di regola, quindi, le parti hanno l’onere, a pena di decadenza, di formulare già negli atti introduttivi, le richieste istruttorie, poiché il doppio termine suindicato può essere concesso solo in presenza di un giustificato motivo.
Infine, la fase decisoria del procedimento semplificato è disciplinata dall’art. 281 terdecies c.p.c., prevedendo che il rito si concluda con sentenza, applicando il modulo decisorio di cui all’art. 281 sexies c.p.c., per le cause in cui il Tribunale giudica in composizione monocratica, e quello previsto dall’art. 275 bis c.p.c., per le cause in cui il Tribunale giudica in composizione collegiale.
Il secondo comma, poi, stabilisce semplicemente che la sentenza è impugnabile secondo i modi ordinari.
L’introduzione del nuovo rito semplificato ha reso necessaria la modifica dell’art. 183 bis c.p.c., che disciplinava il passaggio dal rito ordinario al rito sommario di cognizione. È stato, quindi, previsto che all’udienza di trattazione il Giudice, valutata la complessità della lite e dell’istruzione probatoria e sentite le parti, se rileva che in relazione a tutte le domande proposte ricorrono i presupposti di cui al primo comma dell’articolo 281 decies c.p.c., dispone con ordinanza non impugnabile la prosecuzione del processo nelle forme del rito semplificato e si applicano i commi quinto, sesto e settimo dell’art. 281 duodecies c.p.c., ovvero le disposizioni compatibili con tale passaggio.

4. INNOVATIONS RELATED TO THE LABOR RITE

The Reform under consideration, admittedly, does not significantly intervene in reference to the labor rite, but it does introduce some innovations that are certainly worth noting, namely (i) the introduction of assisted negotiation and (ii) the provision of the new Article 441 bis for dismissal disputes.

4.1 Assisted negotiation in labor matters

With reference to the first novelty mentioned above, Decree Law No. 132 of 2014 was amended by introducing Article 2b, which provides that for disputes referred to in Article 409 of the Code of Civil Procedure, without prejudice to the provisions of Article 412b of the Code of Civil Procedure the parties may have recourse to assisted negotiation without this constituting a condition for the admissibility of the court application.
Each party shall be assisted by at least one lawyer and may also be assisted by an employment consultant.
Article 2113, paragraph 4, of the Civil Code shall apply to the agreement reached as a result of the assisted negotiation procedure.
The reference made to Article 2113, paragraph 4, of the Civil Code leads to the assumption that the intervention of lawyers has been equated with that of the Judge, the administrative authority and the professional association, so that the agreement reached at the end of the negotiation will be subject to a legal regime derogating from the general rule - established by the second and third paragraphs of Article 2113
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c.c. - of appealability within the six-month time limit, since the intervention of lawyers - third parties vested with a public function - was deemed suitable to overcome the presumption of non-freedom of the employee's consent, precluding the appealability of the agreement reached.

4.2 Introduction of Article 441a et seq. in the Code of Civil Procedure

The second important novelty in the field of labor rite, concerns the introduction, in the new Chapter I bis "Of disputes concerning dismissals" of Title IV, of Article 441 bis, which applies in all cases in which, with the challenge of a dismissal act, reinstatement in the workplace is requested.
The text of Article. 441 bis, in particular, now provides that "the handling and decision of disputes concerning the appeal of dismissals in which a request for reinstatement in the workplace is proposed shall have priority over the others pending on the role of the court, even when questions concerning the qualification of the relationship are to be resolved.
Except as established in this article, the disputes referred to in the first paragraph shall be subject to the rules of the first chapter.
Taking into account the circumstances set forth in the appeal, the Judge may reduce the time limit for the proceedings by up to one-half, it being understood that a time limit of not less than twenty days shall elapse between the date of service on the defendant or the third party called and the date of the hearing of the case and that, in such a case, the time limit for the defendant or the third party called shall be reduced by one-half.
At the hearing of discussion the Judge shall order, in relation to the needs of celerity also envisaged by the parties, the joint handling of any related and counterclaims or their separation, ensuring in any case the concentration of the preliminary investigation phase and the decisional phase in relation to the claims for reinstatement in the workplace. To this end, the judge shall reserve particular days, even close together, in the calendar of hearings.
Appeals and cassation judgments shall be decided taking into account the same requirements of celerity and concentration."
Despite the repeal of the rules relating to the so-called Fornero rite, the purpose of proceeding to a rapid settlement of disputes at the outcome of which the employment relationship may be restored is thus reaffirmed.
Compared to the past, however, the Legislature has not introduced alternative rites, but has simplified the existing discipline by restoring the uniqueness of the rite, so that all dismissal disputes will, as of the Reform's entry into force, be subject to the discipline set forth in Articles 409 ff. c.p.c, with the consequent abrogation of the special procedure set forth in Law No. 92 of 2012.
In the cases under consideration, therefore, the labor rite is not substantially modified, allowing, however, the Judge to reduce the time of the proceedings by up to half, taking into account the circumstances set forth in the appeal and providing for a congruous period, in any case not less than 20 days, between the date of notification of the appeal and the hearing for discussion, leaving the Judge both the possibility of exercising this power ex officio and a certain discretion in the an and quomodo of its exercise.