🇮🇹 Italy

10    ITALY

10.1    LEGAL FRAMEWORK

The Italian legal system has a structure similar to all countries of civil law because of historical reasons.

Ordinary jurisdiction is divided into two sectors: (i) Criminal, to prosecute person who commits a crime, and (ii) Civil, to ensure  legal protection of the rights concerning the relations between individuals or between  the individuals and a Public Administration in the exercise of its  duties, when Public Administration harms the individual right of a person.

The reform of the Court districts, made by Legislative Decree 155/2012 in force from 14 September 2013, has been necessary to define appropriate method of treatment for  the data managed by computer systems in use in the civil registries of the courts. The object of such regulatory intervention was to review and amend the constituencies of judicial offices, making a significant revision of the judicial geography.

The reform of the judicial geography has resulted in:

  • deletion and incorporation of all the 220 sub-offices in the main offices  of the Courts ;
  • deletion and incorporation of 31 Courts and  corresponding public prosecutors.

10.2    MAIN PRINCIPLES

The main principles of civil procedures can be summarized as the following:

  1. Civil proceedings are governed by the Civil Procedure Code which provides for a system with four types of courts. The Justices of the Peace are appointed to assess the causes minor according a dual criterion of value and of matters. The jurisdiction for cases of greater magnitude is entrusted to the Courts, which are also judges of second instance for cases before the Justice of the Peace. Depending on the subject matter, the Courts are composed of a single judge or a panel of three members. Since 2003 specialized sections of Intellectual Property have been set up. These sections have changed their name following the entry into force of Decree Law no. 1/2012 transforming themselves in the Courts of Companies. The Courts of Appeal, which are judge of second instance for decisions of the Courts. The highest instance of judicial forum is the Supreme Court of Cassation, which is the judge of final instance for questions of law.
  2. The sources of law in Italy in the field of Industrial Property are represented by the Civil Code and the Code of Industrial Property. The second has been lastly modified by Law no. 194 of 2015.
  3. For cases of urgency, the Industrial Property Code provides that, for reasons of urgency, it is possible to obtain immediate legal protection. It states that whoever has a  good reason to fear that during the time necessary  to enforce its duty  in the ordinary way, this is threatened by an imminent and irreparable prejudice,  may request to the court for the application of the  interim measure, which appears under the circumstances, the most appropriate to ensure the temporary effects of the final decision on the merits. The precautionary protection is possible in the following types of actions: the technical appraisal for purposes of reconciliation (planned and disciplined by art. 696 bis of the Civil Procedure Code), the description and seizure, the injunction and the temporary transfer of the domain name. If the judge in issuing the interim measure doesn’t specify the period within the parties must begin the ordinary proceeding, it must be started within twenty working days or thirty-one calendar days, whichever is longer. The period starts from the delivery of the order if it occurred at the hearing or otherwise, from its communication by chancellor to the parties. If the trial proceeding is not begun within the peremptory period above, or if after its inception is extinguished, the interim measure loses its effectiveness.
  4. The foregoing provisions shall not apply to interim protection required under Article 700 of the Civil Procedure Code, because this type of precautionary measure retains its effectiveness even if it is not started in the ordinary trial.
  5. Each Court of Companies is located in the capital town of any region of Italy. The only two regions with the presence of two Courts of Companies are Lombardy, where one is in Milan and the other in Brescia, and Sicily, where one is in Palermo and the other in Catania.

10.3    IMPORTANT MILESTONES OF A TRIAL

10.3.1    First Instance Procedure

The civil trial  begins when the plaintiff through his attorney, notifies the writ of summons to the counterpart and, within ten days of notification, register the Case to the role of the Court. The first  hearing is fixed by the plaintiff not before  ninety days from the date of notification of the writ of summons. The defendant must put forward his  written defence statement on the first oral hearing or within twenty days before, if he wants to raise exceptions which are not detectable by Judge. At the oral hearing  , if the parties ask for it  and where appropriate, the judge may grant additional time for the filing of further pleadings and inquiries. The terms and the content of those statements are governed by Article 183 of the Civil Procedure Code. These pleadings  may contain specifications of  defenses illustrated in  introductory acts of the trial  (but cannot contain  modifications of initial applications or extensions of the questions raised), attach documentary evidence, request the admission of oral evidence and technical advice by an expert in the field. It is important to point out   Article 115 of   Civil Procedure Code provides that a  non-specific objection of the facts stated by the counterpart, constitutes an implicit admission of those facts in favor of  the opposing party, evaluated by the  judge as argument to decide the case.   Requests for oral and technical advice are examined by the judge at the second hearing.

10.3.2    Judgment

When the parties are not asking for the time-limits for pleadings  at the first  hearing, or when the believe that the case is already ripe for decision, the judge may order  a specific  hearing to keep oral discussion of the case. This type of discussion, without written pleadings subsequent to the initial ones, is governed by Article 281 of the Civil Procedure Code. At this hearing, the case is discussed orally by lawyers of the parties. The judge, at the end of the discussion, verbally pronounces the Judgment. Otherwise, when it is necessary to listen to  witnesses, the judge, at the second  hearing, decides how many witnesses to hear and about what issues;  then  he sets the hearing to listen  to them. The judge may also decide to have a technical advice, also if it’s not  requested by  one of the parties. After the acquisition of evidences the judge sets  another hearing, where parties  specify their final conclusions  and he  assigns  terms to the parties to deposit the final statements and rejoinders, which are a summary in fact and in law of the case. Upon expiry of such terms the case is decided by Judgment filed in Chancery and communicated to the parties.

10.3.3    The Appeal

The Appeal is a review of the judgment of first instance  with reference to the facts and points of law. The Parties must specifically appeal every single part of the Judgment because each part which is  not appealed becomes definitive. Except in special cases,  parties cannot  present in  Appeal new circumstances or new evidences. The deadline for appeal is 6 months from the publication of the court decision or 30 days from its  notification  made by the counterpart. The period from August 1st to August 31th doesn’t count.

10.3.4    Revision (Supreme Court)

In Italy, the Supreme Court is responsible for the revision of an appeal judgment, but only for questions of law. The procedure can be activated within 60 days from receipt of notification of the Appeal judgment by the counterpart, or within  six month  from its publication. New facts or evidence are never admitted.

10.4    THE PRELIMINARY RULING QUESTION BEFORE THE EUROPEAN COURT

This procedure is open to the national courts of the EU Member States , that may apply to the European Court asking for interpretation or validity of European law in the context of a pending case. Unlike other proceedings in front of European Court  the reference is not an action against an European or national act, but a question on the application of European law in a specific national case. The preliminary ruling question thus promotes active cooperation between national judges and the Court of Justice in order to obtain uniform application of EU law.

Any Italian judge seised of a dispute where the application of a provision of European law raises questions (main proceedings), may decide to apply to the Court of Justice to resolve them before deciding the case. There are two types of preliminary ruling question:

  1. the reference for the interpretation of European standard: the national court asks the Court of Justice to issue an opinion on the interpretation of European law in order to apply the rule correctly;
  2. the reference for examining the validity of the European standard: the national court asks the Court of Justice to verify the validity about an act of European law.

During the time necessary to obtain the Court of Justice decision the national proceeding is suspended. After that decision the Italian judge continues the proceeding and judges the case according to the interpretation of the European Court.

10.5    PROCEDURAL COSTS

The party who  starts a lawsuit or proposes a counter-claim or sues a third party in the proceeding must pay to the State a fee, proportional to the amount of the claim, the type and the degree of proceeding, from €  43,00 to €  6.744,00.

Moreover, the party bringing an appeal is required by the court to pay the same amount if the appeal is rejected in its entirety or is declared unacceptable for any reason.

On the basis of Civil Procedure Code, the party who loses the case pays trial costs (state fee above and lawyer’s fees) in favor of the party who wins.

In Italy lawyers’ fees  are defined by a set of parameters contained in the Ministerial Decree 55/2014. The main parameter is the value of the case but there are some additional criteria, including the complexity and the urgency of the work provided.

10.6    CRIMINAL PROCEEDINGS

The prosecutor is the Magistrate who prosecutes. The prosecutor evaluates the merits of each  news of crime and  fulfills the necessary investigations to decide whether it is necessary to ask for a trial or not. This principle does not absolutely require that the prosecutor must necessarily ask for a trialfor a person suspected of a crime;  his institutional obligation is to make sure that the law is respected. Therefore, the prosecutor asks to archive the claim if the collected items are not suitable to support the accusation in court; but later  he can  carry out new investigations and then ask the judge to reopen the case. The mandatory prosecution must ensure two basic principles:

  • if the victim doesn’t have economic possibilities, this should not prevent the offender being prosecuted;
  • only a rule of law must determinate who shall be punished and who shall  go free from punishment,  it cannot  depend on a choice of political expediency.

As the civil justice even the criminal one has three levels of courts: the first two regarding merit, the last (Supreme Court of Cassation) for legitimacy.

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