JUDGMENT NO. 96
YEAR 2024
Commentary on the decision by
Giuliano Scarselli
for g.c. of Giustizia Insieme
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Franco MODUGNO;
Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has pronounced the following
JUDGMENT
in the judgment concerning the constitutional legitimacy of Article 171-bis of the Code of Civil Procedure, initiated by the Ordinary Court of Verona, First Civil Section, in the proceedings between L. V. and A. K. I., a non-profit limited liability sports association, by order of September 23, 2023, registered under no. 150 of the 2023 ordinance register and published in the Official Gazette of the Republic No. 47, First Special Series, of the year 2023, the hearing of which was scheduled for the deliberation in the council chamber of April 16, 2024.
Having seen the act of intervention by the President of the Council of Ministers;
Having heard in the council chamber of May 9, 2024 the Reporting Judge Giovanni Amoroso;
Deliberated in the council chamber of May 9, 2024.
Considered in fact
1. - By order of September 23, 2023 (r.o. no. 150 of 2023), the Ordinary Court of Verona, First Civil Section, raised questions of constitutional legitimacy of Article 171-bis of the Code of Civil Procedure with reference to Articles 3, 24, 76 and 77 of the Constitution.
The referring judge reports that in the context of ordinary proceedings, a non-profit sports association had been sued to obtain, primarily, pursuant to Articles 2050 and 2051 of the Civil Code, or, alternatively, pursuant to Article 1218 of the Civil Code, compensation for damages suffered by the plaintiff as a result of an accident that occurred at the karting track managed by the defendant.
The referring judge also reports that the association, in entering an appearance in the proceedings, in addition to contesting the claim made in relation to both the *an* and the *quantum*, argued that, at the time of registration, customers are issued insurance coverage for the protection of any damages that may occur in the activities carried out at the karting track, contracted with the UnipolSai company, which should therefore be considered the sole entity with passive legitimacy with respect to the claim brought in court by the plaintiff.
The Court points out, on the point of relevance, that the writ of summons was notified on June 6, 2023, and therefore the rules dictated by Legislative Decree no. 149 of October 10, 2022 (Implementation of Law no. 206 of November 26, 2021, containing the delegation to the Government for the efficiency of civil proceedings and for the revision of the regulation of alternative dispute resolution tools and urgent measures for the rationalization of proceedings in matters of rights of individuals and families as well as in matters of enforcement) apply, which modified the ordinary procedure of cognition, introducing, among other things, the challenged Article 171-bis of the Code of Civil Procedure, which requires the judge to issue, within fifteen days of the expiry of the deadline for the defendant's appearance, the decree setting the hearing date. By means of this decree, the judge, on the one hand, verifies the regularity of the adversarial process and issues, where necessary, the measures referred to in Articles 102, paragraph two, 107, 164, paragraph two, three, five and six, 167, paragraph two and three, 171, paragraph three, 182, 269, paragraph two, 291 and 292 of the Code of Civil Procedure, and, on the other hand, indicates to the parties the issues that can be raised ex officio which it deems appropriate to address, including with respect to the conditions for the admissibility of the claim and the existence of the prerequisites for proceeding with the simplified procedure.
The referring judge emphasizes that the provision in question, as also attested to by the explanatory report to Legislative Decree no. 149 of 2022, is one of the most significant modifications to the regulation of the first-instance proceedings among those introduced by the aforementioned decree, since it has the function of achieving the procedural concentration that characterizes the new introductory and hearing stage, advancing to the hearing date setting decree all the preliminary verifications that the judge is called to perform at the first hearing.
The Court of Verona also points out that this measure must be issued compulsorily, as suggested both by the use of the indicative in the provision and by the circumstance that, in its absence, the parties would risk carrying out a futile procedural activity in the pleadings filed before the hearing, pursuant to Article 171-ter of the Code of Civil Procedure, if preliminary obligations functional to a correct implementation of the principle of the adversarial process were only subsequently ordered.
That being said, the judge *a quo* points out that he should take, in the case at hand, at least two of the measures underlying the verifications contemplated by Article 171-bis of the Code of Civil Procedure.
In the first place, in fact, by virtue of the defendant's objection regarding the exclusive passive legitimacy of the UnipolSai company, he should issue an order for integration of the adversarial process pursuant to Article 107 of the Code of Civil Procedure.
Secondly, since the claim concerns the payment of a sum of money less than the amount of EUR 50,000 and is consequently subject, by virtue of Article 3, paragraph 1, of Decree-Law No. 132 of September 12, 2014 (Urgent measures for the dejudicialization and other interventions for the definition of the backlog in civil proceedings), converted, with amendments, into Law No. 162 of November 10, 2014, to the condition for admissibility of assisted negotiation, which has not been carried out, he should indicate this issue, raised ex officio, among those that must be the subject of discussion in the pleadings referred to in Article 171-ter of the Code of Civil Procedure.
However, the Court doubts the conformity to certain constitutional parameters of Article 171-bis of the Code of Civil Procedure.
1.1. - First of all, the referring judge assumes a conflict of the challenged provision with the criteria indicated by the enabling law, and, consequently, with Articles 76 and 77 of the Constitution.
In this regard, he notes that Article 1, paragraph 5, letter *i*), of Law No. 206 of November 26, 2021 (Delegation to the Government for the efficiency of civil proceedings and for the revision of the regulation of alternative dispute resolution tools and urgent measures for the rationalization of proceedings in matters of rights of individuals and families as well as in matters of enforcement), although indicating very detailed principles relating to the hearing stage, does not contemplate any advance intervention by the judicial authority before the parties' appearance hearing.
He also emphasizes that the principles referred to in Article 1, paragraph 5, letters from *c*) to *g*), of the aforementioned Law no. 206 of 2021, do not include among the possible contents of the parties' pleadings, subsequent to the introductory acts, also the issues that can be raised ex officio by the judge.
Therefore, the judge *a quo* points out that the delegating legislator, even within the scope of very detailed delegation principles, has not contemplated a phase, prior to the first appearance hearing, intended for preliminary verifications, which would therefore constitute a discordant element with respect to the structure envisioned by the same.
The referring judge believes that he must therefore verify whether the intervention carried out, with the insertion of Article 171-bis into the Code of Civil Procedure, is consistent with the less specific principles of delegation that concern first-instance proceedings.
In primis, he questions the consistency of the provision with the objective of concentrating the procedural activity identified among the delegation principles by Article 1, paragraph 5, letter *a*), of Law No. 206 of 2021.
In this regard, he observes that the challenged provision achieves this concentration only in the first part of the first paragraph, where it requires the judge to adopt - as it is relevant in the underlying proceedings - a measure to supplement the adversarial process or to remedy defects in the introductory act, also sacrificing the principle of the adversarial process because the issuance of this measure takes place *inaudita altera parte*. According to the referring judge, the application of Article 101, paragraph two, of the Code of Civil Procedure could not be envisioned, since this provision provides for the granting to the parties of a minimum term of twenty days to intervene on the issues raised ex officio by the judge, while the decree setting the hearing date must be pronounced within fifteen days of the expiry of the deadline for the defendant's appearance in the proceedings.
In light of these observations, the referring judge doubts the compatibility of the challenged provision with the other general principles indicated by the same Article 1, paragraph 5, letter *a*), of the enabling law, i.e. those of simplicity and effectiveness of the protection, since the judge independently makes his own decisions on the issues raised ex officio, without any interaction with the parties at the end of which he could adopt a different decision.
On the other hand, adds the judge *a quo*, if the provision were understood in the sense of the duty of the judicial authority to interact previously with the parties on each of the issues raised ex officio, this would entail an expansion and not a reduction of procedural times, also conflicting with the general indications emanating from the aforementioned general principle of legislative delegation.
The Court also observes that the second part of the first paragraph of the same Article 171-bis of the Code of Civil Procedure, in providing that the judge invites the parties to interact in the supplementary pleadings on the issues raised ex officio, ensures respect for the principle of the adversarial process, but sacrifices that of concentration of the procedural activity.
1.2. - The same judge *a quo* also assumes that the challenged provision would also be incompatible with Articles 3 and 24 of the Constitution.
1.2.1. - In particular, with reference to the invoked parameter referred to in Article 3 of the Constitution, the Court emphasizes that a decision *inaudita altera parte* is only provided for those issues raised ex officio that condition the introduction of the proceedings or its subjective extension, while, for all the others, the related decision is deferred to the first hearing, without there being a reasonable justification for this different treatment, which would reveal an arbitrary choice, precluded to the legislator even in a matter, such as the procedural one, in which it enjoys broad discretion.
1.2.2. - On the other hand, according to the referring judge, Article 171-bis of the Code of Civil Procedure would conflict with Article 24 of the Constitution, insofar as it allows for the adoption of interlocutory measures without any prior consultation with the parties, thus also conflicting with the related general rule expressed by Article 101, paragraph two, of the Code of Civil Procedure, which has now become a guiding principle of civil proceedings.
2. - By act filed on December 12, 2023, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings and raised, as a preliminary matter, the inadmissibility of the questions on the grounds that, on the one hand, the referring judge would have asked this Court to carry out a review of the merits of the legislation in procedural matters, in which the ordinary legislator enjoys broad discretion, and, on the other hand, would not have considered the broad wording of the guiding criteria provided for by the enabling law.
The State defense then argues, as to the merits, that the questions are unfounded.
2.1. - With reference to the invoked violation of Articles 76 and 77 of the Constitution, the State Attorney General's Office observes that, even if the enabling law has not expressly provided for the issuance of measures by the judge prior to the first hearing, they are functional to ensure the procedural concentration indicated among the general guiding principles by Article 1, paragraph 5, letter *a*), of Law No. 206 of 2021, as well as to ensure that the pleadings filed by the parties before the hearing are not useless - as also noted by the judge *a quo* - which would occur if the judge issued at the hearing a measure aimed at the correct establishment of the adversarial process with the original parties or ordered a measure aimed at extending said adversarial process to other subjects.
From this perspective, according to the State defense, the challenged provision allows both to reduce the duration of the ordinary first-instance proceedings by about fifty/sixty days, and to ensure that the activity of processing the case actually takes place at the first hearing, which otherwise would risk being postponed by a further four/five months.
The State Attorney General's Office also adds that, through the control carried out by the judge *in limine litis* with the issuance of the decree setting the hearing, the delegated legislator wanted to overcome one of the problems that had occurred in the experience of the so-called corporate proceedings, introduced by Legislative Decree No. 5 of January 17, 2003 (Definition of proceedings regarding company law and financial intermediation, as well as in banking and credit matters, in implementation of Article 12 of Law No. 366 of October 3, 2001), in which the phase before the judge took place only after the notification of the request for setting the hearing, while the preparatory phase was left to the exclusive management of the parties, without any control by the judicial authority. This had often led to the fact that at the discussion hearing before the panel, after the exchange of pleadings, sometimes numerous, between the parties, a preliminary procedural issue was raised ex officio, with a consequent regression of the proceedings.
The State Attorney General's Office then emphasizes that the different treatment contemplated for issues that can be raised ex officio would not be without justification, since the advance decision only for some of them with respect to the moment of the hearing depends on the need to prevent this from leading to a postponement of the hearing itself, when the parties have already filed the supplementary pleadings.
Furthermore, the assumption that the simplicity and effectiveness of the protection would be compromised by the "solitary" decision of the judge, rendered with the decree setting the hearing, does not take into account the powers of direction of the proceedings in any case recognized to the judicial authority by Article 175 of the Code of Civil Procedure, which, together with the possibility of conducting hearings remotely or replacing them with the exchange of written notes, easily allows the judge to interact with the lawyers even in the preliminary verification phase, setting, without any preclusion by current legislation, a special hearing.
The State Attorney General's Office notes that, in any case, the interlocutory measures issued pursuant to Article 171-bis of the Code of Civil Procedure are revocable and modifiable, so that the exercise of the adversarial process and the right of defense can be carried out, as also happens in other cases, *ex post*.
2.2. - The State defense believes, also in light of the considerations made in relation to the other parameters, that the questions raised with reference to Articles 3 and 24 of the Constitution are likewise unfounded.
With reference to the censure of violation of Article 3 of the Constitution, it reiterates, also given the broad discretion of the legislator in shaping procedural institutions, that the different treatment reserved for issues that can be raised by the judge ex officio is justified by the different consequences that the adoption of measures aimed at the correct establishment of the adversarial process (with the parties in the case or with others towards whom it is necessary to extend the same) and the ex officio raising of issues have on the timing of the proceedings, which can only be affected by the former, extending them.
On the other hand, notes the State defense, the different temporal modulation of the judge's powers re-proposes that already contemplated by Article 183 of the Code of Civil Procedure, in the wording prior to the intervention of Legislative Decree No. 149 of 2022, according to which the judge, only after having carried out checks on the regular constitution of the adversarial process with a positive outcome, indicated to the parties, as established by the fourth paragraph, the issues that can be raised ex officio that it deemed appropriate to address.
With reference to the parameter referred to in Article 24 of the Constitution, the State Attorney General's Office reiterates that an interaction with the parties is in any case possible, also by setting a hearing *ad hoc*, already in the preliminary verification phase, and that, in any case, the measures adopted can always be modified or revoked following the adversarial process with the parties.
The State defense observes, finally, that, as has been repeatedly affirmed in constitutional jurisprudence, that of the adversarial process is a principle that can be balanced with other values of equal rank, such as the reasonable duration of the proceedings, such that, to ensure the same, a possible weakening of the adversarial process may be justified at an initial stage and limited to certain issues.
3. - The National Union of Civil Chambers (hereinafter: UNCC), which was declared admissible by presidential decree of March 11, 2024, has also filed a written opinion in the proceedings as *amicus curiae*.
The UNCC emphasizes that, effectively, the interpretation of the challenged provision made by the referring judge would seem to conflict with the principle of the adversarial process, which cannot be adequately carried out, also in light of Article 101, paragraph two, of the Code of Civil Procedure, all the more so as amended by Legislative Decree no. 149 of 2022, only *ex post*.
The opinion emphasizes that, however, among the operators an interpretation of the challenged provision is emerging according to which the judge can, in the exercise of the general powers of direction of the proceedings entrusted to him by Article 175 of the Code of Civil Procedure, possibly deferring the first appearance hearing, set a specific hearing, in which to decide on the preliminary issues relating to the correct establishment of the adversarial process.
This interpretation of the challenged provision would allow, according to the UNCC, also to overcome the doubt of excess of delegation being able, unlike what was envisaged by the judge *a quo*, to be carried out the adversarial process with the parties also on the issues raised ex officio pursuant to the first part of the first paragraph of Article 171-bis of the Code of Civil Procedure.
Considered in law
1. - By order of September 23, 2023 (r.o. no. 150 of 2023), the Court of Verona, First Civil Section, raised questions of constitutional legitimacy of Article 171-bis of the Code of Civil Procedure with reference to Articles 3, 24, 76 and 77 of the Constitution.
The referring judge points out that the challenged provision, as also attested to by the Explanatory Report to Legislative Decree no. 149 of 2022, plays a central role in the structure of first-instance proceedings reformed by this decree, since it has the function, in an attempt to achieve the procedural concentration that characterizes the new introductory and hearing stage, of preventing the judge from being called upon to carry out preliminary verifications at the first hearing, advancing them to the decree setting the hearing date. The Court of Verona emphasizes that there is no doubt about the judge's duty to issue the decree referred to in Article 171-bis of the Code of Civil Procedure, as can be seen both from the use of the indicative by this provision and from the circumstance that, in its absence, the parties would risk carrying out a futile procedural activity in the pleadings filed before the hearing, pursuant to Article 171-ter of the Code of Civil Procedure, if preliminary obligations functional to a correct implementation of the principle of the adversarial process were only subsequently ordered.
1.1. - That being said, in the first place, the judge *a quo* assumes, with reference to Articles 76 and 77 of the Constitution, a conflict of the challenged provision with the criteria indicated by the enabling law.
In this regard, he notes, first of all, that Article 1, paragraph 5, letter *i*), of Law No. 206 of 2021, although indicating very detailed principles relating to the hearing stage, does not contemplate any advance intervention by the judicial authority before the parties' appearance hearing.
He also emphasizes that the principles referred to in Article 1, paragraph 5, letters from *c*) to *g*), of the aforementioned law do not indicate among the possible contents of the parties' pleadings, subsequent to the introductory acts, also the issues that can be raised ex officio by the judge.
From this perspective, the Court *a quo* points out that the delegating legislator, even within the scope of very detailed delegation principles, has not contemplated a phase, prior to the first appearance hearing, intended for preliminary verifications, which would therefore constitute a discordant element with respect to the structure envisioned by the same.
1.2. - The referring judge also assumes that the challenged provision would also be incompatible with Articles 3 and 24 of the Constitution.
1.2.1. - In particular, as to the possible violation of Article 3 of the Constitution, he observes that a decision *inaudita altera parte* is only provided for those issues raised ex officio that condition the introduction of the proceedings or its subjective extension, while, for all the others, the related decision is deferred to the first hearing, without there being a reasonable justification for this different treatment so as to reveal an arbitrary choice that would be precluded to the legislator in a matter, such as the procedural one, in which it enjoys broad discretion.
1.2.2. - The judge *a quo* also notes that Article 171-bis of the Code of Civil Procedure would conflict with Article 24 of the Constitution, insofar as it allows for the issuance of interlocutory measures without any prior adversarial process between the parties, thus conflicting, in this respect, also with the related general rule expressed by Article 101, paragraph two, of the Code of Civil Procedure, which has now become a guiding principle of civil proceedings.
2. - It is necessary to examine, first of all, the preliminary objection of the State Attorney General's Office which assumes the inadmissibility of the questions, both that based on the violation of Article 76 of the Constitution, by virtue of the broad criteria of the enabling legislation, and those relating to Articles 3 and 24 of the Constitution, through which a review on the merits of the legislator's choices would be required.
The objection is unfounded, given that both the conformity of the challenged provision to the enabling law for the failure of the referring judge to consider the broad margins of discretion of the delegated legislator (judgment no. 248 of 2020), and the possible not manifestly unreasonable nature of the legislative choice constitute, if anything, elements for the rejection of the questions on the merits and not for their inadmissibility (among others, judgments no. 126 of 2021; no. 260 and no. 224 of 2020; no. 35 of 2017).
3. - From a separate perspective, the referring judge invokes, in making his censures for violation of the delegation criteria, in addition to Article 76 of the Constitution, also Article 77 of the Constitution.
However, as is known, the latter provision concerns not the legislative decrees, like the former, but indicates the prerequisites, identified in the necessity and urgency, in the presence of which the Government may exceptionally issue decree-laws immediately in force, until their conversion into law, within the following sixty days.
This is therefore an irrelevant parameter, since the challenged provision was not issued by decree-law, with consequent inadmissibility of the question in relation to the same (among the many, judgments no. 225, no. 171, no. 46 and no. 8 of 2023, no. 259 and no. 248 of 2022 and no. 198 of 2021).
4. - When examining the questions of constitutional legitimacy raised by the Court of Verona, with reference to the other parameters (Articles 76, 3 and 24 of the Constitution), it is appropriate to premise a brief reconstruction of the regulatory framework of reference in which the challenged provision is placed.
5. - Article 171-bis of the Code of Civil Procedure falls within the scope of the rules with which Legislative Decree no. 149 of 2022 reformed the ordinary first-instance proceedings pursuant to the delegation criteria set forth in Article 1, paragraph 5, of Law no. 206 of 2021.
5.1. - The aforementioned Article 1, paragraph 5, in requiring the Government to issue one or more legislative decrees aimed at amending the Code of Civil Procedure in matters of first-instance proceedings before the court in a single-judge formation, indicates, in letter *a*), the general principles and guiding criteria, identified in those of «ensuring the simplicity, concentration and effectiveness of the protection and the reasonable duration of the proceedings».
The subsequent letters from *b*) to *i*), dedicated to the introductory and hearing stage, set out a series of more specific criteria aimed at allowing the filing of pleadings aimed at defining the *thema decidendum* and the *thema probandum* before the hearing and not after it, as was the case in the system in force at the time with the granting of the deadlines referred to in Article 183, paragraph six, of the Code of Civil Procedure.
In essence, the enabling law has designed a new structure for the introductory and hearing stage of ordinary first-instance proceedings in which, prior to the first hearing, the parties must "say and request everything", not only in the introductory acts, but by specifying their claims and defenses, as well as by conveying the evidentiary requests formulated in a direct and contrary manner in the supplementary pleadings to be filed before the hearing.
5.2. - The delegation criteria, contained in Article 1, paragraph 5, letters from *a*) to *i*), of Law No. 206 of 2021, were implemented by the delegated legislator with Legislative Decree No. 149 of 2022.
In particular, the defendant's appearance deadline was increased, redetermined from the previous ninety to the current one hundred and twenty days, in order to allow that, after the appearance of the same, which must take place within seventy days (and no longer twenty days) before the hearing referred to in Article 183 of the Code of Civil Procedure, the parties can file the supplementary pleadings that precede that hearing.
The challenged provision also provided that the judge is required, within fifteen days of the expiry of the deadline for the defendant's appearance in the proceedings (*id est*, in a period between seventy and fifty-five days before the hearing), to issue the decree setting the hearing date; a decree with which the same judge is called upon to carry out a series of preliminary verifications on the correct establishment of the adversarial process and on the existence of certain procedural flaws, issuing, where necessary, the consequent measures, as well as to indicate to the parties the issues raised ex officio that it deems appropriate to address in the supplementary pleadings.
More specifically, the challenged provision provides that, for the purposes of issuing the decree setting the hearing date, the judge verifies the «regularity of the adversarial process» (Article 171-bis, first paragraph, first part, of the Code of Civil Procedure), carrying out a series of checks, i.e. those concerning: a) the integrity of the adversarial process in cases of necessary joint litigation (Article 102, paragraph two, of the Code of Civil Procedure); b) the appropriateness that the proceedings take place in comparison with a third party to whom the case is common (Article 107 of the Code of Civil Procedure); c) the nullity of the writ of summons (Article 164, paragraph two, three, five and six, of the Code of Civil Procedure); d) the nullity of the statement of defense in terms of the identifiability of the counterclaim (Article 167, paragraph two and three, of the Code of Civil Procedure); e) the appearance of the parties and the declaration of default (Article 171, paragraph three, of the Code of Civil Procedure); f) the defects of representation and authorization and the nullities or the lack of power of attorney to the lawyer (Article 182 of the Code of Civil Procedure); g) the possible setting of a new hearing if the defendant calls a third party into the proceedings (Article 269, paragraph two, of the Code of Civil Procedure); h) the validity of the notification of the original writ of summons for the purposes of the declaration of default (Article 291 of the Code of Civil Procedure); i) the need to notify the defaulting party of the acts provided for by law (Article 292 of the Code of Civil Procedure).
If, in the face of these checks, it becomes necessary to remedy one of the flaws found or to order the renewal of the notification of the writ of summons to the non-appearing defendant or, again, to integrate the adversarial process with subjects not summoned in the proceedings, the judge, in the same decree setting the hearing, issues the consequent measures, deferring, where necessary, the hearing referred to in Article 183 of the Code of Civil Procedure.
On the other hand, with the same decree referred to in Article 171-bis of the Code of Civil Procedure, the judge must indicate to the parties the other issues raised ex officio that he deems appropriate to address, including with regard to the conditions for the admissibility of the claim and the existence of the prerequisites for proceeding with the simplified procedure.
The two types of intervention that the judge can carry out in the preliminary verifications consist of different activities: the first is aimed