Summary
THE JUDGMENT OF APPEAL
1.1 Introduction
The so-called Cartabia Reform also made significant changes with reference to the appellate trial, with the same intent that inspired the reform of the trial at first instance, namely to ensure greater celerity and simplification of the procedure. In particular, the most relevant novelties of the reform pertain to (i) the introduction of a new filter to the judgment of appeal; (ii) the new role attributed to the Investigating Counsel; as well as (iii) the reduction of the cases of referral to the Judge of first instance.1.2 The elimination of the filter on appeal
One of the main innovations brought by the Cartabia Reform to the appellate process is undoubtedly the elimination of the filter of inadmissibility of appeals lacking a reasonable likelihood of success, through the introduction of a simplified decisional form for cases of manifest groundlessness of the relevant appeals. The reason for the change is probably to be found in the preference, with the same amount of time required for the Judge to study the file and draft the decision, for the adoption of a decision on the merits of the appeal, in the simplified forms provided for in Article 281 sexies of the Code of Civil Procedure, rather than a mere declaration of inadmissibility. Implementing this principle of delegation, therefore, the Legislature revised the discipline of filters in appeals, completely reformulating Article 348 bis c.p.c. and introducing a tool that allows an accelerated and simplified decision for both manifestly unfounded appeals and inadmissible appeals. And in fact, in both cases it seems appropriate to maintain a "filter," since the appeal does not have a reasonable likelihood of being upheld and a settlement can be reached already at the initial stage, allowing the parties to present orally to the panel the reasons for or against such an outcome.1.3 The new role of the investigating counselor
Another important novelty brought by the Cartabia Reform to the appellate judgment concerns the role of the Instructional Counsel, who is now entrusted with the performance of all tasks prior to the decisional phase. The adoption of this new model has led to the introduction of Article 349 bis c.p.c., providing for the appointment of the Instructional Judge by the President. However, again in order to privilege the streamlining and celerity of the decision when appropriate, it is provided that the President makes a preliminary assessment as to the inadmissibility or manifest groundlessness of the appeal, being able in such a case to directly set the hearing before the Board for the oral discussion of the case, avoiding the appointment of the Instructing Counsel and directly appointing the Rapporteur. The second paragraph of Article 349 bis c.p.c. reproduces the content of Article 168 bis c.p.c., allowing both the President, in setting the hearing for oral discussion, and the Instructing Judge, once appointed, to postpone, by decree to be communicated to the parties, the hearing indicated by the appellant in the summons. Article 350 c.p.c. has also been amended, which lists the new functions of the Investigating Judge, namely to: (i) preliminarily verify the integrity of the cross-examination; (ii) declare any default; (iii) unite the appeals brought against the same judgment; (iv) carry out the attempt at conciliation; and (v) decide on the possible admission and consequent assumption of the investigative means. In addition, the Instructing Counsel is also granted the power to order the oral discussion of the case before the Board for decision in simplified form not only in the cases provided for by the filter in Article 348 bis c.p.c., but also in all cases in which he deems it appropriate, in light of the reduced complexity of the dispute or when there is an urgent need for its definition.1.4 The changes in the rules on notification.
Of certain importance are certainly the novelties introduced by the Reform in the area of notifications and relating to the introduction of the obligation of notification by 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 means of PEC or qualified certified electronic delivery service may be executed without hourly 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. the next day, service is deemed perfected for the addressee at 7 a.m. If service is impossible or unsuccessful, for reasons attributable to the addressee, the lawyer must effect service by entering it in the reserved web area provided for in the Business Crisis and Insolvency Code (Article 359), and service is deemed to have been effected on the tenth day following the day on which entry is made. If, on the other hand, the cause is not attributable to the addressee, service may be made in the ordinary way. In order to coordinate the novelties introduced by the Reform with the codified rules, Article 137 of the Code of Civil Procedure was amended by adding 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 on 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 methods is not possible or has not been successful for reasons not attributable to the addressee. The declaration is 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 judicial officer 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 deletion 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, Art. 149 bis c.p.c. has been amended, providing for service via pec also for the notification acts typically belonging to the judicial officer.1.4 The changes at the decision-making stage
The Reform under consideration also intervened on the decisional phase of the appeal judgment, providing, first, for a simplified decisional model following oral argument, in cases of inadmissibility and manifest groundlessness or unfoundedness, governed by the new Article 350 bis c.p.c.This decisional form, expressly recalling that provided for the first instance by Article 281 sexies c.p.c., provides that the Investigating Judge directly fixes the oral discussion before the Board, inviting the parties to specify the conclusions, and at the outcome of the oral discussion, the Board pronounces the judgment or reserves the right to file it within the time limit prescribed by law. The oral argument may, also, be set directly by the President, without the appointment of the Investigating Judge, by directly appointing the Rapporteur. The last paragraph, then, provides for a simplified form of judgment, motivated also by exclusive reference to the point of fact or question of law considered decisive or by reference to conforming precedents. It turns out, then, that Article 351 c.p.c., concerning the handling of proceedings on provisional execution, has been amended, which provides that the President of the College, in such cases, without prejudice to the powers of immediate suspension provided for in Article 351, paragraph 3, c.p.c., may designate the Investigating Counsel, ordering the parties to appear before the latter, who, after hearing the parties, reports to the College for the adoption of measures on provisional execution. This provision, moreover, allows the parties to propose the application for a stay even during the appeal proceedings, specifying that the measures on provisional execution must be adopted by collegial order. Without prejudice to the possibility of the parties to request the setting of a special hearing for the decision on the suspension, finally, as in the past, it has been provided, in the event that before the Court of Appeals the hearing of the parties has been held before the investigating judge, that the collegium in the order by which it adopts the measures on provisional execution, if it considers that the case is ripe for decision in the forms of oral argument, shall set for this purpose a hearing before it, assigning to the parties a time limit for the filing of closing briefs to enable them to fully explicate their right of defense. The Cartabia Reform, as anticipated earlier, also intervened by simplifying the ordinary decision form of the appellate level. More specifically, it has been provided that, when the case is ripe for decision and the conditions for ordering oral argument and decision in a simplified form do not exist, the Instructor shall set another hearing before him to remand the case for decision, assigning the parties three peremptory deadlines, calculated backward from the date of the remand hearing, for filing: (i) a notice of specification of conclusions; (ii) the closing statement; and (iii) reply briefs. At that hearing, the Instructor will refer the case to the Board for decision (or, in appeals before the Tribunal, which decides in a monocratic composition, will hold the case for decision), subject to the sixty-day deadline for filing the judgment.
1.5 The reduction in the number of cases referred to the first judge
In order to limit the cases of remittal of the case to the first Judge to cases of violation of the adversarial process, Article 353 c.p.c. was repealed in its entirety, which provided for the remittal to the first Judge on jurisdictional grounds, limiting the remittal to the first Judge only to the most serious cases of violation of the adversarial process, such as (i) the nullity of the service of the introductory summons; (ii) the failure to integrate the adversarial process; (iii) the erroneous exclusion of a party; (iv) the nullity of the judgment of the first instance pursuant to Article 161, paragraph 2, c.p.c. (Article 354 c.p.c.). Since it is no longer possible to refer the case back to the first Judge in cases where the existence of jurisdiction, previously denied, is recognized, or in cases where the nullity of other acts, other than those expressly provided for in Article 345 c.p.c., is declared, the Appellate Judge must, therefore, in such cases, decide the case on the merits, even by carrying out activities not carried out during the first instance judgment. For this reason, the last sentence of Article 354 c.p.c. has been amended, providing that the Appellate Judge may admit the parties to the performance of activities that would be precluded to them, when this requirement arises from the need to restore the adversarial process and, at the same time, proceed to the renewal of the void acts. To this end, the power of the Appellate Court Judge to proceed with the taking of evidence that was not taken in the trial at first instance has been maintained, specifying that, when the taking or renewal of evidence is ordered, the College of the Court of Appeals delegates the task to the Instructor or the Rapporteur (Article 356 of the Code of Civil Procedure). It is further provided that in appeals brought before the Court of Appeals, the Board, when it deems it necessary, may also on its own motion order the renewal before it of one or more means of evidence taken by the Instructor.1.6 The reduction in the number of cases referred to the first judge
Again with the aim of ensuring greater expeditiousness and simplification of the appellate process, further changes were made to the commencement of time limits for appeals and the introductory phase of the trial. More specifically, in Article 326 of the Code of Civil Procedure, it has been provided that the terms established by Article 325 of the Code of Civil Procedure run from the time of service of the judgment, both for the notifying party and for the addressee of service, from the time when the relevant proceedings are perfected for the addressee. It is, likewise, established, compared to the past, that a late cross-appeal loses effectiveness even when the main appeal is declared unsuccessful (Article 334 of the Code of Civil Procedure). Parallel to the provisions, in principle, for the trial at first instance, also at this procedural stage, by amending Articles 342 and 434 c.p.c., the Legislature provided that in the introductory acts of the ordinary appeal and the appeal in the labor trial, the indications provided under penalty of inadmissibility should be set forth in a clear, concise and specific manner, although no express sanctions are provided for in the case of violation of these principles. Similarly, the provision regarding the indication, in relation to each ground of appeal, of the chapter of the decision that is being appealed has been reformulated, again with a view to conciseness, in order to avoid unnecessary transcriptions in the act of the pages of the appealed pronouncements. Finally, Article 348 c.p.c. was amended, identifying the form in which the appeal is declared inadmissible and the related regime of control. Taking into account that in appeals brought before the Tribunal, the Tribunal judges in monocratic composition, while in appeals before the Court of Appeals, the handling is taken care of by the Instructing Counsel and the decision is collegial, the delegated Legislature has preserved the form of the judgment, which will be appealable in the ordinary ways. However, in order to simplify the forms and make the ruling immediate, it has been provided that, when the hearing is set before the Instructing Officer, the inadmissibility will be declared by him by order, against which it will be possible to appeal to the College, which will decide by judgment, if it rejects the complaint, or by non-appealable order if it accepts it and gives the provisions for the further course of the appeal.1.7 The preliminary referral
Another important novelty of the Cartabia Reform is the institution of the so-called preliminary reference by the Judge of the merits, which will come into effect as of June 30, 2023, also for proceedings in progress on that date, and consisting of the possibility for the latter to submit directly to the Supreme Court a question of law, on which it must decide and in relation to which it has previously provoked cross-examination between the parties. The Legislature, however, has delimited the type of question that the trial judge may submit to the Supreme Court, specifying that it must be a question: (i) exclusively of law; (ii) new, having not yet been addressed by the Court of Cassation; (iii) of particular importance; (iv) with serious difficulties of interpretation; and (v) such as to recur in numerous disputes. It is, furthermore, necessary, as stated above, that the issue has been submitted in advance to the parties' cross-examination. With this in mind, therefore, Article 363 bis of the Code of Civil Procedure, under the heading "Preliminary Referral," was introduced, which provides that the trial judge, by order and after hearing the constituted parties, may order the preliminary referral of the acts to the Court of Cassation for the resolution of an exclusively question of law.To this end, the first paragraph of Article 363 bis c.p.c. lists the characteristics that the question of law must have, for the useful access to the instrument under consideration and namely: (i) that the question is necessary to the even partial definition of the judgment and has not yet been resolved by the Court of Cassation; (ii) that the question presents serious interpretative difficulties; (iii) that it is likely to arise in numerous judgments. The second paragraph of this article then describes the characteristics of the remittal order, stipulating that it must be reasoned and, in particular, with reference to requirement No. 2, it is required that an indication be given of the various possible interpretations. In light of this specification, it seems to be possible to assume that the question of law that presents serious difficulties of interpretation is one for which several interpretative options are possible, all of which are equally reliable. Furthermore, the filing of the order ordering the preliminary reference entails the automatic suspension of the proceedings on the merits, but the provision is without prejudice to the performance of urgent acts and investigative activity not dependent on the resolution of the question referred for a preliminary ruling. Finally, the third paragraph of Article 363 bis c.p.c. introduces a kind of filtering of the remittal orders by the First President of the Court of Cassation, who, upon receipt of the acts, within the period of ninety days, assesses the existence of the conditions provided for in the rule. In case of positive assessment, he assigns the matter to the United Sections or the Simple Section; while, in case of negative assessment, he declares the matter inadmissible by decree. Once the admissibility screening has been passed, the proceedings conclude with the Court's enunciation of the principle of law, which is expressly provided for as binding in the judgment in which the question was referred. If, then, that judgment is extinguished, the last paragraph of the article under consideration extends the binding of the principle of law enunciated by the Court also to the new trial instituted between the same parties, with the re-submission of the same question. The text does not set any limits with reference to the stage of the trial on the merits, within which the question may be raised by the Judge, having, therefore, to consider that the preliminary reference may be raised by the Judge on the merits at any stage of the trial. In another respect, finally, it should be pointed out that, if the question is raised by the Judge of first instance, the principle of law should be binding not only on the Judge who, on the basis of a discretionary assessment, decided to raise the question of a preliminary reference, but also with respect to the Judge of appeal, who, on the other hand, made no assessment in this regard.
