The recent ruling no. 152 of 23 June 2016 of the Corte Costituzionale has confirmed the constitutionality of Article 96, paragraph 3 of the Italian Code of Civil Procedure on the subject of vexatious action, according to which “in any case, when the Judge awards the legal costs pursuant to Article 91 [in the event, that is, of losing the case], he may also, even ex-officio, order the losing party to pay the opposite party an equitably determined sum”.
The procedural facts which have led to the Court’s decision can be briefly summarized as follows.
By order of referral of 16 December 2014, the Court of Florence, Third Civil Chamber, raised ex officio the question of the constitutionality of the said rule considering it contrary to Articles 3, 24 and 111 of the Constitution, where it provides that the beneficiary of the “equitably determined sum” should be the winning “opposite party”, and not the Italian Inland Revenue.
In this case the Tuscan Court rejected the opposition against a temporarily enforceable order for payment, because “clearly and entirely unjustified and inconsistent”. In particular, according to the judge, the opposite party’s attitude was characterized by a subjective state of “bad faith or gross negligence in starting a dispute not based on any element which could make it acceptable”, which was established in order to “delay the due payment for the long time required for the proceedings”, taking advantage of “the backlog of cases in court which the opposition itself has increased and partly determined”.
In light of those reasons, the Court ruled that the party who filed the opposition and lost the case had to be “punished ex officio with the measure provided for by Article 96 paragraph 3 of the Civil Procedure Code, through the additional sentence in an equitably determined amount”. However, doubts rise about the possible unconstitutionality of the provision, in the part in which the legislator has not provided for the payment to be made to the Inland Revenue, the latter undoubtedly affected in exercising its institutional function of ensuring “a fair and equitable trial, within a reasonable period of time”. According to the Court, the measure provided for by Article 96, paragraph 3 of the Code of Civil Procedure appears to be “punitive and officious”, and as such susceptible to “very […] possibly move away from the request of the party and from the evidence of damage, as required instead by the first paragraph of the provision” at issue.
Following this reconstruction, Article 96, paragraph 3 of the Code of Civil Procedure would give the state a significant tool of “procedural response” aimed at suppressing and preventing “the unreasonable use of the jurisdiction [and] its abuse”. Thereby, the winning party in the proceedings would have no reason to benefit from that sum of money, since already satisfied by the mechanism provided for in paragraph 1 of Article 96 Code of Civil Procedure, which provides that “if it appears that the losing party has filed the action or appeared in the proceedings with bad faith or gross negligence, the judge, at the request of the other party, sentences it, in addition to the costs, also to the compensation of damages, which are awarded, also ex officio, in the judgment”: in the latter case there is a genuine right of action that a party can exercise in order to obtain compensation for the damages that the abusive conduct of the other party has caused.
Requested to rule on the issue, the Corte Costituzionale has adhered to the exegesis of the rule offered by the referring court in the present case confirming that the 3rd paragraph of art. 96 of the Italian code of civil procedure represents an instrument: a) of a “punitive” nature; b) operable ex officio by the court regardless of any allegation of evidence of the damage caused by the behaviour of the losing party; c) which has an “undeniably” public connotation, since it is aimed at safeguarding interests which do not belong exclusively to the winning party.
It is then emphasized that the Court expressly recognizes “the reasonableness of the solution advocated by the referring subject”, and this in view of the fact that the rule protects the interest – of a constitutional status – of the guarantee for a reasonable duration of a fair trial.
Despite this explicit recognition, the judges consider “groundless” the question raised by the Court of Florence, denying the existence of any “features of unreasonableness”: the reasonableness of the interpretation offered by the national court does not imply in itself the unreasonableness of the choice of the Italian legislature to identify the beneficiary of the norm with the winning party. On this point the Court “defends” the freedom of choice of the legislature in the concrete case, which enjoys an exercise of “not constitutionally bound” “discretion” on the discipline of procedural institutes. Furthermore, the Court illustrates the reasons for which the choice made by the legislature appears, in any case, preferable: the winning party, recipient of such amount of money, can “likely” “provide for [its] collection […] in less time and with lower costs than those that would weigh on a public body”.
The scope of this last statement allows the conclusion in favour of the explicit admission of an increased effectiveness of the deflationary remedy under consideration, in case of recognition of the relevant benefits to the party in the proceedings, – rather than to the judicial authority -, and this despite the fact that the conduct characterized by vexatiousness is detrimental to the public interests of which the State is the bearer.
(Bologna Office – 0039 (0)51 2750020)
