The Italian Civil Trial Looks to Brussels

In the first months of 2023, the reform of Italian civil procedure came into force (Legislative Decree 10 October 2022, no. 149). It introduces a series of significant innovations to the Civil Procedure Code. Also on this occasion, the main objective was to reduce the unreasonable length of trials, for example favoring the use of a simplified procedure for the decision of less complex cases and making it more difficult to appeal sentences and to opening of further levels of judgement.
Among the most interesting innovations there is certainly the art. 363-bis, which regulates the preliminary ruling to the Court of Cassation. The provision refers to the case in which the civil judge is called upon to resolve a question of law that presents "serious interpretative difficulties". This is far from a remote eventuality if we consider that the main activity of the judge in the trial is precisely the application of laws to the established facts. Since applying the law means interpreting its meaning in cases where the latter is obscure or uncertain, it is evident that there can be many reasons to question the meaning of a law and its applicability to a concrete case. According to the new provision, when doubts about the meaning of the law are particularly serious, the civil judge can refrain from examining the question independently and leave the solution to the Court of Cassation. In order to prevent abuse and guarantee efficiency of the procedure, the provision also prevents the judge from being able to petition the country's high court of appeals when: (i) it cannot be considered "new" because it has already been addressed by previous decisions of the Court and (ii) it does not appear likely to appear "in numerous court rulings".

What is the purpose of this provision? And why could it be very important for the good functioning of our jurisprudence? The introduction of preliminary ruling reflects a mechanism that was already known, not only in the French law, but also in the EU legal system. For many years, in fact, art. 237 of the EU Treaty has allowed national judges to turn to the European Court of Justice to obtain the interpretation of a EU law that must be applied in a pending dispute. The mechanism pursues the aim of ensuring clarity and uniformity in the interpretation of the law throughout the EU, preventing that rulings of national judges produce contradictory interpretations of the same norms. Similarly, art. 363-bis the Italian Code of Civil Procedure aims to standardize the interpretation of Italian law in cases where its meaning is seriously uncertain and susceptible to different or incorrect applications by judges in lower courts.

But the new provision must also be read in relation to the function that the law assigns to the Court of Cassation. The latter is not only the judge of last resort for civil and criminal cases, but is also a body to which the law assigns the function of guaranteeing the exact observance and uniform interpretation of the law throughout the national territory. This function, described with the term nomophilachy (literally: custody of the law), requires the Court, the judge of legitimacy, to clarify the meaning of the law by resolving interpretative conflicts and offering clear and effective legal interpretations: today this function is also carried out by preventing potential interpretative disagreements through preliminary rulings.