Recent Law-Decree no. 212 dated December 22, 2011, containing Urgent provisions on the settlement of crises caused by over-indebtedness and civil trials, may have perhaps escaped some people’s attention.
We will try here to analyze some of the some of the new civil procedure rules that have been introduced and, in particular, articles 13 and 14 of the aforementioned Law-Decree.
The first of these provisions introduces amendments to the Italian Code of Civil Procedure: “The Italian Code of Civil Procedure is amended as follows: a) The following words are added to article 82: «516.46 Euros» are replaced by the following: «One thousand Euros»; b) the following paragraph, finally, is added to article 91: «In the proceedings provided for under article 82, paragraph one, the legal expenses, costs and fees awarded by the judge cannot exceed the value of the action brought by the plaintiff.»”.
The value of proceedings in which parties may represent themselves (without the assistance of lawyer) has, therefore been increased from 516.46 Euros to 1,000.00 Euros and parties may not be awarded – in the event that the latter decide to be represented by a lawyer – legal expenses, costs and fees exceeding the value of the action brought by them.
It would appear, therefore, from a first analysis of such new provisions, that the Italian Legislator intends to continue penalizing Italian lawyers.
Even though, the first amendment to the civil procedure rules would, at first glance, seem to have a positive effect – from the point of view of ordinary citizens and not that of lawyers – insofar as it provides ordinary citizens with the possibility of personally appearing in a larger number of proceedings, one cannot help noting, however, the fact that the low value of the proceedings in question does not automatically mean that the legal issues involved therein are so basic that they can be easily dealt with by the parties thereto (without the assistance of a lawyer).
Private citizens are, in fact, encouraged by such new provisions to ad-lib as trial lawyers, taking inspiration from films or television serials, with the serious risk that that the latter will not receive proper (albeit free) representation.
This, in my opinion, even more scandalous if one considers the fact that such legislation not only deters ordinary citizens from choosing lawyers to represent them in proceedings whose value is less than one thousand Euros, but also deters lawyers from accepting to represent clients in such proceedings since legal expenses, costs and fees cannot be awarded in excess of the amount requested by the plaintiff.
Since – as has been pointed out above – the equation proceedings whose value is less than one thousand Euros = simple proceedings is not correct, there are serious doubts about the validity of the above-described provision.
Establishing in advance a threshold above which legal expenses cannot be awarded is an unjustified limitation imposed upon judges as well as an infringement of the constitutionally guaranteed principle (cfr. article 36 of the Italian Constitution) that earnings should be proportionate to the quantity and quality of work done.
The only effect which is achieved by such provision (the benefits of which are highly dubious) is that of pushing lawyers away from small claim proceedings.
Article 14 of Law-Decree no. 212/2011 introduces, instead, a series of amendments to article 26 of Law no. 183 dated November 12, 2011, establishing that: “Civil proceedings pending before the Italian Supreme Court, that have brought with notices of appeal filed against judgments published before the coming into force of Law no. 69 dated June 18, 2009, as well as proceedings that have been pending before the Court of Appeal for at least three years before the coming into force of this law, will be deemed to have been quitclaimed in the event that none of the parties declare – with a motion to be filed within a peremptory term of six months from the date on which this law comes into force and to be personally signed by the party who conferred the power to lodge such appeal and certified by the lawyer who brought such appeal – that there continues to be an interest in proceeding with such appeal”.
This means that, in the event that the lawyer does not file such motion within the aforementioned term, the President of the Appeal Board shall issue a decree declaring such appeal proceedings extinct. It must also pointed out that the aforementioned six month period cannot be calculated for the purposes of article 2 of Law no. 89 dated March 24, 2001, (the so-called “Pinto Law”).
In relation thereto, we must point out that such motion must be “personally signed by the party” and certified by the latter’s lawyer and that – contrary to first impressions – the clerk of the court has no obligation whatsoever to give notice thereof to the parties.