The author of this post is Giovanni Chiapponi, research fellow at the MPI Luxembourg. The post is based on a presentation given at the weekly meeting of researchers of Department 1 of the MPI Luxembourg on 11 March 2020. This is the first in a series of posts aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself (see the other contributions on the topic by Matthias Lehmann and Tomaso Ferrando).
As the Covid-19 (corona virus) spreads out, the Italian government has taken some important measures, which have a strong impact on the structure of the internal judicial system. Thus, the Decree-Law No 11/2020 of 8 March 2020 contains extraordinary and urgent measures on the management of the judicial workload and on the internal organization of the judiciary to contrast the negative effects of the virus on the functioning of judicial activities.
Indeed, even in a period of crisis, where there are many risks at stake for the health of the population, it is important to ensure a proper administration of justice. Hence, the rationale of the decree is to guarantee an effective and efficient functioning of the judicial system.
In this regard, the decree provides for the postponement of hearings and for the suspension of time limits in civil, criminal, fiscal and military proceedings. Consequences follow in all these fields of law, however my remarks will only focus on the consequences affecting civil matters.
According to Article 1(1), most civil hearings scheduled between the day following the entry into force of the decree (9 March 2020) and 22 March 2020 will not take place due to a mandatory postponement.
In the same way, pursuant to Article 1(2), time limits for exercising judicial acts within civil proceedings are automatically suspended for the period 9 to 22 March 2020. Where a time limit would normally begin during the period of suspension, the starting point is delayed until the end of the latter period.
Despite the urgency of the situation, some exceptional rules are provided under Article 2 of the decree. Both the mandatory postponement of hearings and the suspension of time limits do not concern some categories of proceedings that deal with urgent issues. In this regard, Article 2(2)(g) lists the following exceptions: determinations as to the adoptability of children, matters relating unaccompanied minors, the removal of minors from their family and situations of serious prejudices; matters relating to maintenance obligations; provisional measures affecting fundamental rights; decisions regarding compulsory health treatments; matters in respect of the voluntary termination of pregnancy; measures of protection from domestic violence; measures of expulsion; decision on provisional enforceability of judgments before Courts of Appeal and the Court of Cassation; all matters entailing the risk of serious prejudice to the parties.
Furthermore, Article 2(1) provides that the presidents of individual courts may adopt technical and organisational measures aimed to respond to health concerns while ensuring, as far as practical, the proper administration of justice.
The following measures, among others, may be adopted for the above purposes: purely organisational measures such as limitations to the access to, or the opening hours of, courthouses; guidelines as regards the conduct of hearings; exceptions to the publicity of hearings in civil matters; the use of IT technologies in court hearings; the postponement of non urgent hearings.
The decree impacts on some fundamental principles of civil procedure (e.g. the right of defense, the equality of arms, the reasonable length of the proceedings) enshrined in the Italian Constitution, the Charter of Fundamental rights of the European Union and the European Convention on Human rights. It aims at ensuring a balance between the right to health and health care (recognized at a constitutional and European level by the Charter of Fundamental rights and the European Convention on Human Rights) and the rights of the parties in the context of civil proceedings.
Despite the urgency and uncertainty of the situation, it is indeed important to ensure the respect of the fundamental procedural rights of the parties. In this regard, the decree suspends limitation periods to file a claim with the court and procedural time limits for the exercise of parties’ rights in order not to undermine parties’ prerogatives. The lapse of time is “locked” and in principle, this does not entail negative consequences for the parties in the proceedings.
However, some doubts on the interpretation of the text of the decree arise. In such a technical question as time limits, clear indications are needed as regards, in particular, the calculation of time limits.
Namely, the decree refers to “time limits … within the proceedings”. Which time limits are concerned, precisely? Does the suspension of time limits apply to all pending legal disputes (including the objections against injunctions and the appeal procedure) or does it apply only to those legal disputes in which hearings were fixed in the period 9 to 22 March 2020 and that have been postponed by the decree?
For instance, if no hearing is scheduled , but the deadline to submit an appeal before the Court of Appeal expires on 11 March, is the time to appeal suspended? Arguably, the first reading should be preferred, since it allows the parties to better safeguard and protect their rights.
If the first reading were adopted, another issue would arises: how should time limits be calculated retroactively if they expire within the period of suspension? For instance, if a time limit expires on 11 March, what would be the new expiry date? The expiry date, it is argued, should be 24 March (9+2/22+2), as the suspension period is to be applied.
In the meantime, the Government’s department for the relations with the Parliament in an explanatory note delivered on 11 March has indicated that the broad interpretation suspending time limits in all pending legal disputes should apply.
However, the note has no binding effect as such and does not bridge the existing legal gap. As required by the Italian Bar Council, the Italian legislator should intervene to guarantee certainty.
As the immediate conversion of the decree into law seems to be difficult, the government may provide for an authentic interpretation of the rules at stake. This would ensure that the parties’ legitimate expectations on the proper administration of justice are not undermined or frustrated.
The foreign proceedings, it is contended, should then prevail on the ground that they were brought first. The fact that the justice system in one EU Member State has come to a stand-still cannot entail that other Member States have to stop their systems, too. That would run counter the interest of the parties.
Finally, some considerations may be made on the implications of this emergency legislation for judicial cooperation at the European level. These uncertainties on time limits will inevitably entail uncertainty in cross-border cases. As Italian procedural law applies under the lex fori principle, the parties must act in accordance with Italian procedural time limits including these extraordinary rules provided by the law decree. As issues arise for parties in the context of national proceedings, in the same way they will spill over in cross-border settings.
In this respect, it is interesting to underline that some European instruments in the field of judicial cooperation in civil matters provide for strict time limits (e.g. Article 5(3) of the Small Claims Regulation or Article 18 of the Regulation on the European Account Preservation Order).
What happens to those time limits if the Italian law applies under the lex fori principle? Are they suspended in the period 9 to 22 March according to the Law decree? In order to safeguard the rights of the parties, which are even more at risk in cross-border cases, it would be reasonable to suspend also these time limits. However, the Italian legislator is not competent to suspend time limits laid down in EU Regulations. Should the European legislator intervene?
Another key issue, which may have negative consequences in cross border cases, concerns Article 32 of the Brussels I bis Regulation, which provides for an autonomous definition of the time in which a court is deemed to be seized of a dispute. May we consider that an Italian Court is seized of a dispute during the period 9 to 22 March? The same considerations pointed out above can be reiterated: the activity of Italian courts should, in principle, be suspended, but as we are dealing with a concept laid down in a European Regulation, the Italian lawmaker cannot provide for exceptional rules applying to the Brussels I bis Regulation. This is again an open question, which shines a light on the risk that the lis pendens rule may be frustrated.
To conclude, as Covid-19 spreads out throughout the EU, the exceptional situation may lead other Member States to adopt urgent measures to contain the spread of the virus. As the system of judicial cooperation in civil matters is based on mutual trust and the application of provisions under the law of the Member State of origin, the question arises how the EU procedural law system may react to the introduction of extraordinary measures.
Judicial cooperation in civil matters, indeed, is based on the assumption that there is no state of emergency. Thus, if Member States start to introduce exceptional procedural rules in their own systems, there is the high risk that the EU procedural system would not be ready to face emergency measures. The EU should arguably allow Member States a certain degree of flexibility at least to provide exceptional rules for the urgent circumstances at stake.