Legal representation for civil proceedings is mandatory except for disputes:
- for which the giudice di pace is competent. The giudice di pace is a judge of first instance who is competent for disputes below a given (low) value and / or disputes concerning specific subject matters; and
- where the amount in dispute either (i) does not exceed EUR1,100; or (ii) exceeds EUR1,100 but the giudice di pace, in light of the nature and amount of the dispute, expressly authorizes that a party does not need to be represented by an attorney.
Writ of summons
In Italy, civil proceedings are commenced when the claimant serves a writ of summons, through the use of a bailiff, on the defendant.
The writ will summon the defendant to appear at the hearing on the date indicated by the claimant in the writ itself. The writ shall also contain the following information:
- details of the court before which the claim is filed;
- all the relevant information required to identify the plaintiff and the defendant;
- the object of the claim;
- the description of the factual and legal grounds of the claim and the relative conclusions;
- a specific indication of the evidence which the plaintiff intends to offer or request in the proceedings (for example, a party may request that witnesses are heard on specific topics or an expert is appointed by the court) and, in particular, an indication of the documents which the plaintiff exhibits with the writ of summons;
- the name and last name of the lawyer(s) and the power of attorney;
- an invitation to the defendant to file its statement of defense and to appear at the hearing, with the warning that, where the defendant intends to: (i) raise a counterclaim; (ii) join a third party to the proceedings; or (iii) raise objections based on procedural deficiencies or merit that the judge cannot raise ex officio, it must file its statement of defense at least 20 days before the date of the first hearing. Conversely, where the defendant does not wish to pursue (i) to (iii) above, it may file the statement of defense directly at the first hearing.
The first hearing
Between the date of the first hearing and the date of the service of the writ of summons on the defendant, there must be a term of at least 90 days (if the place of service is in Italy) or 150 days (if the place of service is abroad). When setting the date of the first hearing, the claimant must ensure it complies with these terms. Otherwise, the court shall declare the writ of summons null and void. Although the claimant schedules the first hearing, and indicates the date in the writ of summons, the judge may postpone the date of the hearing ex officio depending on their backlog and / or calendar. The postponement should not exceed 45 days compared to the date scheduled by the claimant. These terms are not always respected and it is likely that the postponement is longer than 45 days.
The first hearing is used to verify the preliminary procedural issues, such as the successful service of the writ of summons on all parties and the capacity of the claimant to bring the claim. The judge may also use this as an opportunity to explore the possibility of an amicable settlement between the parties.
After the first hearing and at any of the parties' request, the judge will grant the parties three consecutive terms (a first term of 30 days from the date of the first hearing or any subsequent date that the judge deems appropriate, then a term of a further 30 days and a last term of 20 days), identical for both parties, to simultaneously: (i) file supplemental written submissions particularizing or modifying the prayers for relief and the objections outlined in the writ of summons and / or in the statements of defense; and (ii) supplement the evidence requests that they made, respectively, in the writ of summons and in the statement of defense.
Once these three further submissions have been made, two different scenarios can be envisaged. The first of these is that, if the judge deems the dispute ready to be decided, the hearing for the submission of the parties' final prayers for relief is immediately scheduled. Alternatively, if the judge does not deem the dispute ready to be decided, a hearing is scheduled to decide on the acceptance or dismissal of the evidence requested by the parties. The judge will decide on these issues at the hearing and then the evidence-taking phase begins.
The taking of evidence
Where the judge does not deem the dispute ready to be decided, the judge establishes the timing, place and method of the taking of evidence. For example, if witness testimony is admitted, the judge will schedule a hearing for the witness(es) to render their testimony. If the taking of evidence should be accomplished outside the court's district, the judge delegates a judge in the relevant location, unless the parties jointly request, and the president of the tribunal agrees, that the judge shall move to that location for accomplishing the taking of the evidence. This is seldom the case.
The judge taking the evidence decides (by issuing the relevant order) all the issues that arise during the evidence-taking phase. The taking of evidence is recorded into minutes, drafted under the judge's supervision.
Once the evidence-taking phase is concluded, the hearing for the parties to submit their final prayers for relief will be scheduled.
The final hearing
The hearing for the parties to submit their final prayers for relief will usually take place between one and two years after the decision of the judge that the dispute is ready to be decided or after conclusion of the evidence-taking phase. The parties are then given 60 days (or a shorter period that should not be shorter than 20 days) from the date of the hearing to file their conclusive briefs and a further 20 days for the reply briefs.
The judge's decision is issued approximately five months after the date on which the parties file their reply briefs. The decision is temporarily enforceable, notwithstanding any appeal. The appeal judge may stay in whole or in part the enforceability or the execution of the challenged judgment, with or without a bond. However, the judge may only grant a stay upon receipt of a motion filed by one of the parties with the main appeal or with the incident appeal, when there are serious and well-grounded reasons to do so and also with reference to the possibility that one of the parties may become insolvent.
The average length of first instance proceedings is approximately 36 months.
In addition to ordinary proceedings, there is a simplified judicial procedure mainly aimed at commercial debt collection. Such debt collection is obtained through the issuance of a payment injunction (Decreto Ingiuntivo) by the competent court. The procedure applies to debts which are:
- quantified in their amounts;
- due and payable (i.e. liquidi and esigibili); and
- supported by written evidence.
As part of this simplified judicial procedure, the judge normally proceeds, without the knowledge of the alleged debtor, to a brief assessment of the documentation filed. Where the legal requirements referred to above are met, the judge will issue an order for payment which becomes enforceable if the debtor fails to oppose it within 40 days (where the debtor is situated in Italy) from receipt of service of a certified copy of the order (or 50 days where the debtor has its registered office elsewhere in the EU and 60 days in all other cases). If the debtor serves the creditor with an opposition in the form of an ordinary writ of summons with the specific indication that it is aimed at opposing the order, the proceedings will follow the ordinary procedural steps and timings referred to earlier in this section. Even where an opposition is served, provisional enforcement of the judgment may be granted if certain legal requirements are met.