The Europeanization of Italian Civil Procedure Law: The Italian Supreme Court and The Jurisdiction to Give Preliminary Rulings

The real binding force of a judicial precedent

The 2022 reform of the Italian civil proceeding, aimed at ensuring efficiency and a reasonable duration of proceedings, has assigned an increasingly important role to judges. 

While on one hand the pursuit of this goal has characterized many reforms of civil procedural law in the last years, on the other hand, these periodic changes have also produced many interpretative and applicative problems, which have resulted in interpretative divergences between courts, hence rendering decisions in similar cases unpredictable.

Therefore, the 2022 reform, in addition to aiming for efficiency and reasonable timing, sought to overcome the difficulties coming from decades of legislative innovations. The most relevant novelty of this reform lies in the recognition of an increasingly important role to judges, as the new rules give more importance to the role of the precedent, which is arguably the most important outcome of judicial activity.

Is the expansion of judges’ powers in civil proceedings a good choice? Does it represent an effective option with respect to the goal of ensuring a reasonable duration of the judicial decision-making process? The answer is not that simple, as there are many elements involved which include, inter alia, the appointment of new judges and the modernization of civil proceedings. What is certain is that the strengthening of the role of the judges can obtain the reduction of conflict between judicial decisions, increasing the degree of predictability.

On the other hand, many scholars acknowledge that this novelty can actually cause uncertainty of the law. They also argue that the existence of interpretative conflict is not a bad thing, because interpretative conflicts show that the law is evolving, and this means that improvement and refinement of the law is assured. However, while it is true that the law evolves through interpretation, the existence of interpretative conflicts rarely causes the law to evolve: indeed, for the law to evolve, conflicts must be first resolved.

The new rule

Hence, the 2022 reform set out in art. 363 bis a new tool for preventing and resolving interpretative conflicts, which provides that any Italian court can ask the Supreme Court (Corte di Cassazione) to give a preliminary ruling on a pending legal issue when the question:

• Is necessary to resolve the case
• Involves difficulties concerning interpretation
• Is likely to arise in many cases

Moreover, any decision on the merit by the lower court which submitted the question is suspended until the opinion is delivered or three months go by.

This mechanism surely resembles the preliminary reference system before the European Court of Justice, and also a mechanism already existing in France. In particular, according to the French Civil Code, lower courts, before ruling on an issue raising a new question of law that presents serious problems of interpretation, may seek the opinion of the Cour de Cassation. As in the new Italian provision, any decision on the merit by the lower court which submitted the question is suspended until the opinion is delivered. 

An important difference between the French rule and the Italian one is that while the Italian Supreme Court’s decision is binding for the court which submitted the question, the decision of the French court is merely persuasive, and lower courts are free to not comply with it and thus to disregard the precedent. However, it should also be noted that usually lower French courts tend to conform to the Supreme Court’s decisions, as they are persuasive and effective and possess great authoritative force.

Another main difference between the French and the Italian provision is that the Italian Supreme Court’s order manifests itself in the so-called “principio di diritto”, which identifies the Supreme Court’s interpretation of the law, while this concept has no space in the French provision. Indeed, unlike the French rule, the Italian rule expressly provides that the Supreme Court’s order is binding.

The model of the European Court of Justice

Therefore, the Italian rule is much more similar to the preliminary rulings of the European Court of Justice. The references for preliminary rulings serve to assure nondivergent interpretations of EU law. The European Court of Justice’s decision, like the Italian rule, is not just an opinion but takes the form of a judgment. The lower court which submitted the question is bound by the interpretation given as well as other national courts before which the same problem arises. Indeed, throughout the history of the European Union, several important principles of EU law have been laid down through preliminary rulings.

The 2022 Italian reform provides for something very similar in order to ensure the effective and uniform application of Italian law and to prevent divergent interpretations. Lower courts can now refer to the Supreme Court and ask to solve an issue concerning the interpretation of Italian law, and the precedent of the Supreme Court is much more important than in the past. 

This exchange of procedural tools clearly shows that legal systems develop and evolve, distance themselves and then get close. Indeed, nowadays, even talking about a rigid distinction between the civil law and the common law legal systems is a simplification, and this is demonstrated by the fact that the Italian legal system is pursuing the common law model of the binding precedent.The new Italian rule is a clear example of this fading separation as it shows that the Italian legal system is consistently moving towards the precedent based system traditionally associated with common law jurisdictions.

The role of the "Sezioni Unite"

The increasing importance of the Italian Supreme Court’s precedent can be captured also in another rule, which prevents the Supreme Court from disregarding its own precedents pronounced by its most important section, namely the “Sezioni Unite”.

The “Sezioni Unite” are the Supreme Court of Cassation’s most authoritative section; they come into play when it is necessary to settle contrasts that have arisen between the decisions of the individual sections or when the proposed issues are of special importance (e.g., because it is an issue arising for the first time). 

If one of the sections of the Supreme Court intends to overrule a precedent established by the Sezioni Unite, it is obliged to refer the question of law to the mentioned section. Therefore, it cannot freely disregard it, even if it can avoid following it. Hence, this legal pattern shows that the Italian legal system is progressively being directed toward a transformation of precedents in binding decisions. However, while for the Supreme Court its own precedents can be considered binding, for the lower courts they possess merely persuasive force, as there are no rules that make them binding.

Viewing things from a broader perspective, it can be concluded that the real force of a precedent should be found in its argumentative force. Indeed, when the precedent’s reasonableness fails and the precedent no longer exhibits persuasive force, it is progressively disregarded and can therefore be modified or overcome. As a matter of fact, common law systems have never explicitly written the principle of stare decisis but have instead always assumed it.

Looking at the aforementioned reform, the interpretation given by the Corte di Cassazione after the preliminary reference will only bind the lower court which made the referral and not all lower courts. Therefore, this new reform can be seen as a confirmation of the conclusion that the real reason for considering a judicial precedent binding lies in its persuasiveness and reasonableness.

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