With a another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).
Decree Law n. 168/2016 was converted into law on October 25, 2016 (“L. 197/2016”) and contains a series of amendments aimed at facilitating a quicker resolution of disputes before the Supreme Court.
In particular, the legislator intervened through:
- the attribution to the President of the Supreme Court and to the Presidents of the Chambers of the Court of the power to issue a presidential preliminary order to decide questions that, before the amendment, required a decision on behalf of the collegiate body, that is:
- the order to serve or renew the service of the challenge of a decision in indivisible claim (art. 377, para. 3, code of civil procedure);
- the declaration of the extinction of the proceedings in case of renouncement and in the other cases provided for by the law, if the date for the decision has not been fixed (art. 391, para. 1, code of civil procedure);
- the extension of the scope of application of the proceedings in chamber (so called “camera di consgilio”), which becomes the “general” procedural type of proceedings, with consequential reduction of the discussions in a public hearing to mere “residual” hypotheses: if, before the amendment, the proceedings in chamber were held only in the cases expressly provided for by art. 375 of the code of civil procedure, with the entry into force of the new legislation, the Court decides in camera di consiglio (with the obvious exception of the cases in which the President can issue the presidential preliminary order, see above) not only in the cases already expressly provided for by art. 375 code of civil procedure, but also “in every other case, save when the discussion in a public hearing is appropriate, given the particular importance of the legal issue discussed” (art. 375, n. 5, code of civil procedure);
- the limitation of oral discussion in the proceedings before the Supreme court: if, before the amendment, oral discussion was admitted as a general rule (including in the proceedings in chamber), after the last reform, oral discussion is admitted only if the recourse needs to be decided before a public audience (art. 379 code of civil procedure) (thus, as mentioned, only in residual hypotheses); in every other case in which the recourse is decided in camera di consiglio (which is now the general rule), oral discussion is no longer admitted (arts. 380-bis, 380-bis para. 1, 380-ter code of civil procedure).
If the extension of the scope of application of the proceedings in chamber and, more importantly, the attribution to the President of the Supreme Court and to the Presidents of the Chambers of the Court of the power to decide certain issues with a presidential preliminary order can both be seen as adequate innovations to allow a more rapid resolution of the proceedings before the Supreme Court, the limitation to the admissibility of oral discussion does not seem to have the same impact to that end, and instead affects a right which, to this day, has always been recognized to all parties as a general rule.
In any case, the (eventual) positive effect of the reform on the rapid definition of the proceedings before the Supreme court is encouraged by the application of this new legislation not only (i) to the recourses filed after the entry into force of the reform (i.e. October 31, 2016), but also (ii) to the recourses filed on the date of entry into force for which “the hearing or the convocation in camera has not yet been fixed”.