OF AVV. CLAUDIO BECHIS
Court of Turin, 30 January 2016 – Ciocchetti
Court costs – Compensation – Hypothesis – Taxation – Discretionary power of the judge – Non-existence – Violation of the principles of reasonableness and equality, of the right to take legal action and of the principle of due process – Question of constitutional legitimacy
(Const. Articles 3, paragraph 1, 24 paragraph 1 and 111, paragraph 1; Criminal Code articles 91, paragraph 1 and 92, paragraph 2)
The question of the constitutional legitimacy of art. 92, paragraph 2, cpc, where – unreasonably, as well as in contrast with the principle of equality, the right to take legal action and the principle of fair trial – identifies in an exhaustive way the hypotheses of compensation for the costs of the dispute, without admitting the discretionary power of the judge to act on you for serious and exceptional reasons (1).
Omitted. – Done:
The appellant is a working member of the defendant Cooperative, with duties of entrance and traffic control officer and with a subordinate employment relationship regulated by the Coop National Collective Labor Agreement. Tertiary and Services [omissis] 2001, therefore by the CCNL Coop. Multiservizi [omissis] 2004 and finally by the CCNL Coop. Supervision and Trust Services [omissis] 2013.
He challenges the remuneration parameters related to these CCNLs, which he believes do not comply with the combined provisions of art. 36 of the Constitution, of art. 3, paragraph 1, l. 3 April 2001, n. 142 and art. 7, paragraph 4, d.l. 31 December 2007, n. 248, conv. in l. February 28, 2008, n. 31, the latter regulation which requires cooperatives to apply only the CCNL stipulated by the “comparatively most representative employers and trade union organizations at national level in the category”.
Therefore, he primarily requests the application for his own benefit of the Legacoop Multiservice CCNL. [omissis], with consequent condemnation of the defendant to pay the amount of € 30,040.53 gross, by way of salary differences [omissis].
Asks, in the alternative, where the Court does not consider the application of the invoked CCNL [omissis] to be justified, the defendant be ordered to pay the amount of € 7,809.07, by way of contractual integration of the legal indemnities for injury and illness , calculated with reference [to the CCNL applied by the defendant: nde] [omissis].
The defendant in turn requests the rejection of the appeal and observes, as regards the main claim, that the remuneration paid to the worker complies with the regulatory parameters invoked by the same, having regard to: a) the level of remuneration paid to him since January 2014, in compliance with the CCNL for Supervision and Fiduciary Services 2013 [omissis], to be used as a fairness parameter for the previous period; b) the salary tables of the National Collective Labor Agreement for employees of building owners [omissis].
As for the subordinate question, he observes that the exclusion of the contractual integration of the legal sickness and accident indemnities follows the shareholders’ resolution of 20 June 2011, to be considered legitimate since it is accompanied by the temporary placement in a state of crisis and approved with the aim to guarantee the survival of the shareholding structure, due to the high debt existing towards credit institutions, in compliance with art. 6, paragraph 1, lett. d) and e), l. 3 April 2001, n. 142.
Following the completion of the accounting expert witness, which takes into consideration, for the purposes of the remuneration fairness judgment, the two CCNL indicated by the defendant, and the subsequent oral discussion, the Court pronounces a non-definitive sentence, with which it decides the entire merit of the dispute, with the rejection of both the main and subordinate claims [omissis].
At the same time, with a separate order, it provides for the continuation of the judgment for the definition of the residual issue, relating to the settlement of litigation costs and, in that case, the office proposes the question of the constitutionality of art. 92, paragraph 2, c.p.c. (in the text amended by art. 13 of Legislative Decree 12 September 2014, no. 132, converted with amendments into Law 10 November 2014, no. 162), with reference to Articles 3, 24 and 111 of the Constitution [omissis].
Right:
With judgments of 30 July 2008, nos. 20598 and 20599, the United Sections of the Court of Cassation settle the existing conflict within the same Court, [omissis] establishing the following principle of law, thus summarized in the judgment of the same Court of 27 April 2009, no. 9886: “in the regime prior to that introduced by art. 2, paragraph 1, lett. a), L. 28 December 2005, n. 263, the provision of partial or total compensation of expenses for “just reasons” must find adequate motivational support, even if, for this purpose, it is not necessary to adopt reasons specifically referring to said measure provided, however, the justifying reasons of the same are clearly and unequivocally inferable from the whole of the motivation adopted
in support of the ruling of merit (or ritual) [omissis] “.
Following art. 2 l. n. 263/2005 cit., The original text of art. 92, paragraph 2, c.p.c. is modified with the introduction of an additional term, which establishes that the “right reasons” must be “explicitly indicated in the motivation” [omissis] so that these reasons can no longer be inferred [omissis] from the motivational structure of the decision and therefore with a check carried out for relationem [omissis] [né: nde], the obligation to provide reasons can no longer be considered satisfied when the compensation is based, for example, on the “peculiarity of the case”, which does not allow control over the adequacy of the reasons underlying this decision, even if integrated by the motivational path (thus Cass. May 30, 2008, n. 14563 and Id. December 18, 2007, n. 26673). This change appears to be completely justified on a constitutional level, taking into account the motivating part of the order of the Constitutional Court of 21 December 2004, n. 395, in the precise and convincing reading that the United Sections of the Court of Cassation then give, with the aforementioned decisions [omissis], where they highlight [that: n.d.e.] [omissis] “art. 92 c.p.c. [omissis] gives the judge a discretionary power, and not an arbitrary one, to derogate from the legal rule based on the principle of losing (art. 91 of the criminal code) [omissis] “.
The jurisprudence of the Court of Cassation [omissis] – formed both under the validity of the original text of art. 92, paragraph 2, c.p.c. both after the change introduced [omissis] – considers the following cases to be valid grounds for compensation: i) the non-univocity of the jurisprudence, especially on the merits, on the interpretation of a particular legislative expression (Cass. 9 July 1993, no. 7535); ii) the particular complexity and novelty of the issues dealt with (Cass. May 23, 2003, n. 8210; Id., S.U., November 15, 1994, n. 9597) [omissis]; iii) the peculiarity and complexity of the issues dealt with (Cass. 1 December 2003, n. 18352) [omissis]; iv) the significant gap in the quantum between the original petitum and the judicial ruling of acceptance of the application (Court of Cassation, 6 December 2003, no. 18705); v) the concurrence of the totally winning party with the losing counterpart in the stipulation of an agreement, which is the subject of the dispute, contra legem (Cass. November 28, 2003, no. 18238); vi) the co-responsibility in the dispute of the judicially victorious party with the unsuccessful counterpart, due to the non-unequivocal nature of the agreement that is the subject of the dispute [omissis] (Cass. November 28, 2003, no. 18238); vii) the custody of the losing party (the Public Administration) in the results of a public register [omissis] (Cass. 21 January 2013, no. 1371). The sentences of the United Sections of the Court of Cassation [omissis] cited several times, also indicate, “by way of example”, the following cases of compensation of expenses for “just reasons”: [omissis] viii) the objective difficulties of the investigations in fact, capable of affecting the exact a priori knowledge of the respective reasons of the parties; ix) the procedural behavior of the party unjustifiably reluctant to formulate plausible conciliatory proposals, in relation to the concrete procedural results, etc.
Following the entry into force of art. 45, paragraph 11, l. 18 June 2009, n. 69, the term used by art. 92, paragraph 2, c.p.c. (in the text modified in 2005), to regulate the compensation of expenses, after the hypothesis of mutual unsuccessfulness, and that is: “or there are other just reasons, explicitly indicated in the motivation”, is replaced by the following: “or other serious and exceptional reasons, explicitly indicated in the motivation “.
In the opinion of the Court, this amendment was intended to provide a legal basis for the jurisprudence of the Court of Cassation [omissis], which, over time, is rigorously identifying cases of possible compensation for litigation costs [omissis]. With this it could be considered that the amendments to the procedural rule in question had reached [omissis] a reasonable conclusion, having remedied the practice of a part of the jurisprudence, which had used reasons for compensation that were completely lacking in consistency or tautological [omissis ].
Following the entry into force of art. 13 d.l. n. 132/2014 cit., [Omissis] the “open” provision which for 150 years has characterized the compensation regime for litigation costs [omissis] disappears [omissis] to leave room for a “mandatory” provision; however, it is restricted to only two cases (in addition to that of mutual unsuccessfulness, existing since 1940), namely “absolute novelty of the question dealt with” and “change in case law with respect to the dirimental issues”, outside of which cases the judge is therefore not allowed the compensation of litigation costs.
.L. of conv. d.l. cit. explains the reason for this reforming choice as follows: “[omissis] Despite the restrictive changes introduced in recent years, the application practice continues to make extensive use of the discretionary power to compensate court costs, with a consequent incentive for litigation, given that the unsuccessful it loses its natural and relevant cost, with equal damage for the party that turns out to have been right. With the function of discouraging the abuse of the trial, it is envisaged that compensation can be ordered by the judge only in cases of mutual unsuccessfulness or novelty of the question decided or change in case law. Given the particular reliance that the party introducing the judgment makes in the expenses regime, it was deemed appropriate to establish that the provision in question applies to proceedings introduced starting from the thirtieth day following the entry into force of the law converting the decree ” .
[Omissis] It is therefore a question of verifying whether the instrument used by the legislator [omissis] is adequate or not with respect to the proposed objective, having regard to the principles contained in the Constitutional Charter; and in this regard the following seven remarks are formulated.
I) The matter, as historically addressed by the jurisprudence of legitimacy, highlights a wide range of cases, as to the reasons deemed worthy of compensation for expenses; so that, due to this variety, the matter does not, by definition, lend itself to a normative intervention of an obligatory nature, but if ever of an exemplifying nature. The Court of Cassation expresses itself in this sense, with sentence no. 18705, where we read that “the just reasons are removed from any listing that is not merely illustrative”; This statement recalls, as precedents, the judgments of the same Court of 22 April 2000, n. 5305 and 9 October 1985, n. 4918 [omitted].
II) Art. 92, paragraph 2, in the text currently in force [omissis], has a deflationary function [omissis] and to this end it is envisaged that all cases falling within the general rule of losing will invariably have to be sanctioned with the condemnation of costs, except for three, which are therefore mandatory [omissis].
III) There is no doubt that the legislator, in dictating the procedural rules, “enjoys wide discretion”, as stated several times by the Constitutional Court, with rulings no. 59 of 1999, n. 158 of 2003, n. 446 of 2007, n. 270 of 2012 and, most recently, no. 157 of 2014 [omissis].
IV) If this is generally true, however, there are limits on the constitutional level that must in any case be respected, since the legislative discretion in the matter in question cannot be considered unlimited [omissis].
V) In the opinion of the Court, the aforementioned constitutional parameters appear to be damaged by the regulation currently in force, as it isolates three hypotheses of compensation, the first since 1940 present in the regulation and the other two choices, undoubtedly, in the context of the cases identified or treated by the Court of Cassation in the period prior to this modification, separating them from the others identified by the same Court [omissis], whose gravity (i.e. merit of protection) and exceptionality (i.e. suitability to constitute an exception to the general rule of losing) still appears such as to justify the partial or total compensation of expenses, like the two chosen by the last novel [omissis].
VI) We can see here, in a completely evident and clear way, that if the purpose of the new legislation, as declared by the competent Minister, is to oppose a judicial practice that continues to be centered on the discretionary power of compensation, destined in turn to encourage litigation, the instrument used [omissis] appears to be damaging: 1) the principle of reasonableness of legislative choices (Article 3, paragraph 1, of the Constitution), since: a) the previous amendment of 2009 is already completely sufficient to discourage any abuses by the judge in the use of the compensation instrument, as it already contains a completely rigorous and appropriate regulation; b) there is also a discrepancy between the aim pursued (contrast with a judicial practice in place) and the regulatory instrument used (extreme limitation and beyond any measure of compensation hypotheses), which therefore appears to be vitiated by excess of legislative power; c) this end could have been pursued with the introduction of a specific and quick procedural remedy, such as that of the complaint [omissis]; 2) of the principle of equality (Article 3, paragraph 1, of the Constitution), given the situations taken into consideration by the law, compared – as a tertium comparationis – with those excluded from it, such as (by way of example) those identified by the jurisprudence of legitimacy [omissis]; 3) the right to take legal action
lmente (Article 24, paragraph 1, of the Constitution), since it tends, in fact, to unduly discourage the exercise of rights in court, thus becoming an incongruous deflationary (and punitive) instrument, for example in the hypothesis in which the conduct of the party (later unsuccessful) is based on correctness, prudence, good faith, lack of information, difficulty in knowing the facts, erroneous reliance on the conduct of others (also pre-trial of the counterpart) and so on similar and relevant, that is to situations that are completely antithetical to those hypothesized by the law, related to the abuse of the process; 4) of the principle of due process (Article 111, paragraph 1, of the Constitution), since it limits the power-duty of the judge to render justice, also with regard to the settlement of litigation costs, in an appropriate manner in the specific case, as examined and reconstructed by the same.
VII) A further regulatory parameter that must be underlined at this point – as it confirms the reasonableness of the previous text of art. 92, paragraph 2, c.p.c. [omissis] and, at the same time, the unreasonableness of the text currently in force – is also par. 3, paragraph 1, of art. 69, Rules of Procedure of the Court of Justice of 19 June 1991, which provide for the compensation of litigation costs for “exceptional reasons”. This rule is applied by the Court of Justice when there are valid reasons to consider the “good faith” of the losing party, for example depending on the objective complexity of the dispute or as a result of the attitudes of the procedurally victorious party that have generated errors in the other part [omitted].
9. That said, at this point it is a question of assessing the conduct of the appellant, for having promoted the dispute and activated the two aforementioned requests, both of which were found to be unfounded, having regard to the regime of litigation costs and their possible compensation, as outlined by the current text of art. 92 c.p.c.
Taking into consideration the outcome of the judgment with reference to the main question, it must be said that it does not in any way integrate a situation of abuse of the process, showing on the other hand, for the worker, a completely correct conduct based on total good faith.
[Omissis] The main case does not in any way present the features of the absolute novelty of the issue [omissis], as evidenced by the previous judgments produced by the appellant and cited by the Court in the non-definitive sentence.
As for the hypothesis [omissis] of the change in jurisprudence with respect to dirimental issues, [omissis] [such: nde] the term [omissis] is commonly used [omissis] to indicate the overturning of a principle of law sanctioned by the Court of Cassation [ omissis], a question that [omissis] roughly corresponds to the revirement in the jurisprudence of the French Supreme Court and the overruling of the English one; [omissis] this situation, which pertains exclusively to the field of interpretation of legal norms, is in no way verifiable in the case under discussion [omissis], since [omissis] the particular outcome of the judgment with respect to some previous rulings moreover, it did not depend on the different reading of the reference rules, but, as explained above, on a different (and unpredictable for the appellant) defensive structure proposed by the defendant, which makes it necessary for the Court to take into consideration CCNL different from that used in previous disputes and invoked by the appellant [omissis].
Having regard to the subordinate application, it is highlighted the objective difficulty for the appellant to foresee the evaluations and the findings that can then be carried out by the judge, in the light of the specific defenses of the defendant, in order to establish whether the suppression of supplementary treatments [omissis] whether or not it is legitimate; in both cases, therefore, we find ourselves in the presence of circumstances that are difficult to know a priori, as regards the respective reasons of the parties and those of the defendant in particular [omissis].
In the context outlined above [omitted], the Court could not exempt itself, on the basis of the current provisions of art. 92, paragraph 2, cpc, from the obligation to order the appellant to pay the costs of litigation [omissis]; the Court could reach a different conclusion if, conversely, the previous text of art. 92, paragraph 2, c.p.c. [omissis] [o: n.d.e.] if the current law presents an exemplary formulation [omissis]; this last path [omissis] however [omissis] is placed beyond and outside the possible interpretative interventions of the judge, including that of interpreting the rules in a manner consistent with the Constitution [omissis].
It should be noted at this point that the question of the constitutional legitimacy of
art. 92, paragraph 2, c.p.c. [omissis] undoubtedly appears relevant with respect to the portion of judgment not yet decided [omissis] [e. n.d.e.] not manifestly unfounded [omissis].
The Constitutional Court will evaluate whether to adopt a ruling of constitutional illegitimacy of the denounced provision, which would revive the previous text, since the first constitutes a mere modification of the second, or to keep the current text, indicating with an interpretative ruling of rejection or partial acceptance , the path intended to allow the rule to be understood as an “open case” [omissis], so as to constitute a reference parameter for the identification of further cases, compared to those typified in terms of “seriousness and exceptionality”.
The new art. 92 c.p.c. under examination by the Council: is non-discretionary compensation for expenses legitimate?
(1) 1. A working member of a cooperative has sued his employer to hear her order to pay: i) primarily, the pay differences due to the insufficiency of the parameters indicated by the national collective bargaining agreements applied during the relationship; ii) in the alternative, the supplementary allowance for illness and injury provided for by this conventional regulation (where deemed applicable).
The Court, while concluding that both questions proposed were unfounded, questioned the obligation (also deriving from the current content of art. 92 of the Italian Civil Code) to order the unsuccessful party to pay the litigation costs pursuant to art. 91, paragraph 1, cpc: on the one hand, due to the unpredictability of the defenses with which the defendant was able to demonstrate the appropriateness of the disputed remuneration (by offering the expert witness collective agreements other than those used by the contrary precedents of the Turin court); on the other hand, due to the complexity of the issues underlying the temporary reduction of the supplementary payments provided by the cooperatives pursuant to art. 6, paragraph 1, lett. d) and e), l. 3 April 2001, n. 142.
Given the current irrelevance of these profiles of innocence, the court seised decided the merits of the dispute with a non-definitive ruling (of complete rejection), raising with the annotated order the question of the constitutional legitimacy of art. 92, paragraph 2, c.p.c. – as replaced by art. 13, d.l. 12 September 2014 n. 132 [1] – in function of the residual ruling on the costs of the trial (consequently suspended pursuant to art. 23, paragraph 2, l. March 11, 1953 n. 87).
According to the Court, the contested provision became unconstitutional following the elimination of the judge’s discretion to compensate, in whole or in part, the costs of the dispute.
The step can be said to be epochal, considering that, in our legal system, this prerogative – envisaged for needs of an equitable nature [2] – has always been governed by elastic regulatory formulations.
Already art. 370, paragraph 2, c.p.c. 1865 allowed the compensation of expenses for “just reasons” [3], to which the current code gave continuity [4], limiting itself, with the first paragraph of art. 92 of the Italian Civil Code, to put the attribute before the noun.
More significant was the impact of art. 2, paragraph 1, lett. to the. December 28, 2005 n. 263, which – revising the rule in compliance with the winner’s right of defense – imposed the specific motivation [5] for the choice to derogate [6] from the rule of losing.
Subsequently, art. 45, paragraph 11, l. June 18, 2009 n. 69 went for the first time to affect (with restrictive intentions [7]) the very conditions of the institute, allowing the compensation of expenses only in the presence of “serious and exceptional” reasons (therefore, no longer simply just and still clear) .
Lastly, the 2014 Legislator – without waiting any longer for the response of the living law – considered this provision still too permissive [8]; having abandoned the path of purely lexical adjustments, the regulatory intervention has changed the very structure of the provision, identifying the individual hypotheses of compensation for expenses [9].
The intent to limit the operation of the institute was pursued with great determination, with a view to enhancing as much as possible the deflationary scope of the unsuccessful rule [10] (as a means of empowering the party [11]).
The unprecedented closure of the legal case did not, however, prevent us from describing in very stringent terms the residual cases of compensation for expenses – still exceptionally admitted due to the “absolute novelty” of the matter dealt with and the change in the jurisprudence on “dirimenti” profiles [ 12] – without prejudice to the further alternative assumption of mutual defeat [13].
The referring judge supported the contrast of the outlined discipline with articles 3, paragraph 1, 24, paragraph 1 and 111, paragraph 1, of the Constitution – also in light of art. 69, par. 3, paragraph 1,
Reg. Court of Justice (generally aimed at admitting the compensation of expenses “for exceptional reasons”) [14] – as an obstacle to the ethical correctness of the decision and an unreasonable disincentive to action in cases where the party has no way of providing for the outcome of the dispute for reasons other than those contemplated by law.
This, with particular reference to the (other) situations in the past that could be subsumed in the context of the contested provision, such as, for example [15], the lack of homogeneity of the previous jurisprudential solutions [16], the complexity of the issues dealt with [17] and the marginal acceptance demand on the quantum level [18].
In summary, the reaction is thrown against the choice of abandoning to the rule of succumbing those who have always protected themselves – if and because they are irreproachable – fueled by the suspicion of the privilege for the only two “exemptions” left (for example, because the absence of decisions on a new question should justify what a perfect jurisprudential contrast no longer justifies?).
The acceptance of the Council seems unlikely, since the regulation of court costs is a merely accessory problem to the decision on the merits of the dispute [19], whose discipline is at the discretion of the legislator pursuant to art. 28 l. 11 March 1953 n. 87 [20]; also because the economic difficulties associated with legal assistance represent mere drawbacks of fact [21]; consistently, not even the unsuccessful rule is imposed by the Constitution [22].
In other words, if the costs of the trial can erode the utility to which the procedural victory gives access – thus damaging the traditional rationale of art. 91, paragraph 1, c.p.c. [23] – the alleged aggravation of the position of the innocent loser should appear even more admissible.
The reasoning becomes less persuasive when one considers the matter incidentally affected by the Court’s objections: in fact, labor law disputes can sometimes be characterized by information asymmetry [24] to the detriment of the weaker party; denying any corrective measures in the settlement of expenses could stifle fundamental protection initiatives, compromising the free and dignified existence of citizens (see Article 36 of the Constitution) [25].
Moreover, with the repeal of the so-called tariff system – initiated by art. 2, paragraph 1, lett. a), d.l. July 4, 2006 n. 223 [26] and completed by art. 9 d.l. 24 January 2012 n. 1 [27] – the discretion removed downstream could be said to be recovered upstream, given that the judge settles the lawyer’s remuneration in full autonomy (even below the minimum parameters referred to in Ministerial Decree no. 55 of 10 March 2014 [28] ).
At least on an empirical level [29], the data attenuates the significance of the evolutionary thesis of the Supreme Court according to which the compensation of expenses should necessarily be regulated through a “general clause”, which allows its adaptation to the “historical-social context or to special situations, not exactly and effectively determinable “a priori”, but to be specified in an interpretative way “[30].
Equally unlikely would be the hypothesized affirmation of the purely illustrative nature of the case law, given that such an interpretative rejection sentence – returning to the contested provision its typical elasticity – would degrade the reform in question to a mere “aesthetic” intervention, with an impact substantially similar to that of the ablative ruling invoked by the Court (for the purpose of restoring the previous regime); in reality, the expansive attitudes of art. 92, paragraph 2, c.p.c. they appear strongly limited by the littera legis.
Finally, with respect to the deflationary aims pursued, the suggestion to make the ruling in expensis reclaimable (rather than commonly challengeable) seems ineffective [31].
Claudio Bechis
[1] Conv. With amendments in l. 10 November 2014 n. 162.
[2] What exceptional temperament of the principle of the victus victori: v. Luiso, Civil procedural law, I, Milan, 2015, 438, Mandrioli, Civil procedural law, I, Turin, 2015, 428, Montesano-Arieta, Treaty of civil procedural law, I, Padua, 2001, 579; Lupano, Responsibility for the expenses and conduct of the parties, 2013, Turin, 2013, 95 ss, Proto Pisani, Lessons of civil procedural law, Naples, 2014, 307 and Bongiorno, Judicial expenses, in Enc. Giur., XXX, Rome, 1993.
[3] With the authoritative clarification that “it must be understood that this does not happen except in the case of mutual defeat”, deriving “from a traditional confusion of concepts the abuse that is done in practice, contrary to any raison d’etre of the institute, of all sorts of reasons for compensation “: thus, Chiovenda, Principles of civil procedural law, Naples, 1923, rist. 1980, 202.
[4] For a broad overview of living law following the entry into force of art. 92, paragraph 2, c.p.c. v. Gualandi, Judicial expenses, in Riv. Trim. Dir. And Proc. Civ., 1957,
1214 ff and 1655 ff.
[5] Previously also implicitly inferable from the reasons given in support of the decision on the merits: Cass., 2 December 2010, 24531, in Mass. Giur. It., 2010, Id, 31 July 2009, n. 17868, ibid., 2009 and Id., March 27, 2009, n. 7523, ibid. Regarding the related jurisprudential debate – and the internal contradictions of the prevailing orientation – see Cordopatri, Still on the motivation for the compensation measure for the costs of litigation, in Riv. Dir. Proc., 2005, 1379 ss, note to the Supreme Court, ord., 22 April 2005 n. 8540 and Russo, note to Cass., S.U., 30 July 2008, n. 20598, in Giur. It., 2009, 1212 as well as, from a historical perspective, Gualandi, Expenditure, cit., 1227 et seq. In this regard, Scarselli, Il nuovo, cit., 51, notes that the latest rewriting of art. 92, paragraph 2, c.p.c. make the related complaints easier, if advanced on the basis of the violation of the law pursuant to art. 360, paragraph 1, n. 3 c.p.c.
[6] See Cass., 28 April 2014, n. 9368 in Mass. Giur. It., 2014 and Id., 20 October 2014 n. 22224, ibidem, according to which the application of art. 91, paragraph 1, c.p.c. on the other hand, it does not require any motivation.
[7] On this point, skeptical, Scarselli, Changes in the theme of expenses, in Foro It., 2009, V, 262 s. According to the provision noted here, the 2009 reform was essentially intended to “provide a legal basis” to the living law of the time (already positively founded on the previous art. 92, paragraph 2, c.p.c.). Regarding the exegetical significance of the legislative change, see Cass., 27 January 2016, n. 1521, in Mass. Giur. It., 2016, according to which “if the reference to the objective controversiality of the question addressed, in the absence of jurisprudential precedents of legitimacy, could integrate, in the previous regime of expenses and in the context of the verification of the defect in motivation (art. 360 cpc , n. 5), an argument that is neither incongruous nor illogical, the same argument does not seem to be able to be adduced as a “serious and exceptional reason” capable of justifying the compensation of expenses “.
[8] See the ministerial report to the d.d.l. of conv. d.l. n. 132/2014 cit., According to which “in the application practice the discretionary power to compensate court costs continues to be widely used” (for Bergamini, The compensation of expenses pursuant to art 92, paragraph 2, cpc, in Giur. It. , 2015, 1745, so much so as to overturn the relationship between rule and exception). In any case, the finding does not seem to justify the reconstruction of the legislative change under analysis in terms of “contrast with an ongoing judicial practice”, as observed by the Court in supporting the “discrepancy between the aim pursued [in reality, declaredly different (see below): nda] and the regulatory instrument used […] which therefore appears to be vitiated by excess of legislative power “.
[9] In accordance with the reform project of the code of civil procedure prepared by the Tarzia commission, in Riv. Dir. Proc., 1996, 951 (point 11), which, on the sidelines of the mutual defeat, typified the hypotheses of the complexity of the cause and the novelty of the issues decided (as we shall see, in partial analogy with the current discipline).
[10] As explicitly clarified by the aforementioned ministerial report (see annotated ordinance, motivation, point 7). See Alunni, The principle of causality and compensation of expenses, note to Cass., January 13, 2015, n. 373, in Giur. It., 2015, 600 and 602, according to which even the compensation of expenses can discourage the judicial initiative.
[11] V. Mandrioli, Law, cit., 428 and Green, Civil procedural law, I, Bologna, 2015, 284 s.
[12] Hypothesis that Scarselli, Il Nuovo, cit., 51, considers “more theoretical than practical”, noting, in particular, how the change in jurisprudence pursuant to art. 92, paragraph 2, c.p.c. – concerning the regula iuris in its abstractness (and not, as in the case in question, the concrete results of the judicial assessment) – must necessarily intervene in the course of the case. See Bergamini, The compensation, cit., 1748.
[13] Mere specification of the general rule referred to in art. 91, paragraph 1, c.p.c .: v. Giordano, Brief considerations on the motivation for the compensation measure for litigation costs, note to Cass., February 15, 2006, n. 3282, in Giust. Civ., 2006, 1166 and Luiso, Law, cit., 431 ff.
[14] Indeed, long since replaced by art. 138 Reg. Court of Justice of 29 September 2012, which admits the compensation of litigation costs only more in the event of mutual unsuccessful opposite of what the Remitter argued – the compensation of expenses can not only be confined to mandatory hypotheses, but can even be excluded from the system. With regard to the previous art. 69 infra cit., V. Biavati-Carpi, Community procedural law, Milan, 1994, 123 ss.
[15] For a more complete review, see. Finocchiaro,
in Richter-Richter, The jurisprudence on the code of civil procedure coordinated with the doctrine, edited by Finocchiaro-Corsini, Milan, 2014, 622 ss.
[16] Cass., Ord. 10 February 2014 n. 2883, cit. and Id. 9 July 1993, n. 7535, in Mass. Giur. It., 1993. See Cass., January 20, 2003, n. 770, ibid, 2003, for which the data loses relevance only to the affirmation of an orientation of legitimacy.
[17] Cass., 1 December 2003 n. 18352, in Mass. Giur. It., 2003, Id. 23 May 2003, n. 8210, ibidem and Id., S.U., November 15, 1994, n. 9597, therein, 1994.
[18] See Cass., 6 December 2003, n. 18705, in Mass. Giur. It., 2003, which observes that “if it is true that there is a debate as to whether the acceptance of the request for a quantum lower than the requested amount constitutes mutual defeat […] it is also true that the reduction of the sum requested (in this case from 75.418 lire. 887 to 4,738,810 lire) can presumably be assessed as a “just reason” for partial compensation “. Evidence of the theoretical contrast noted Cass., 22 February 2016, n. 3438, in Mass. Giur. It. 2016 (which, recognizing partial unsuccessfulness in the face of the marginal acceptance of the application, partially compensates for the costs) and Id, 21 March 1994, n. 2653 (which instead excludes mutual unsuccessfulness and settles the decision to burden the victorious part with three quarters of the expenses paid). See Bergamini, La compensation, cit., 1747, according to which precluding the compensation of expenses in the cases in question could “in fact, result in an incentive to formulate disproportionate questions”.
[19] Thus, C. Cost., Ord., July 30, 2008 n. 314, in Giur. Const., 2008, 4, 3389, noting the impossibility of requesting the reimbursement of expenses in the context of an independent judgment and the offensive nature of the relative ruling.
[20] C. Const. 4 June 2014 n. 157, in Giur. Const., 2014, 2511, Id., Ord. November 28, 2012 n. 270, ibid, 2012, Id., Ord., 21 December 2007 n. 446, in Giust. Civ., 2008, I, 846 and Id., Ord., 2 April 1999, n. 117, in Foro It., 2000, I, 392.
[21] As such, irrelevant in the context of the constitutional legitimacy judgment, since they are not directly related to the abstract provision of the contested provision, but related to the concrete application of the same: v. C. Const. 4 June 2014 n. 157, cit. and Id., ord. November 28, 2012 n. 270, cit.
[22] V. C. Cost., Ord., 21 December 2007 n. 446, cit. and Id., ord., 2 April 1999, n. 117, cit., For which the reimbursement of court costs is not relevant for the purposes of the right to act and defend oneself in court (as well as, according to C. Cost., Ord., July 30, 2008 n. 314, cit., For the respect for the principles of due process). See C. Const. 4 June 2014 n. 157, cit. and Id. 31 December 1986 n. 303, ibid., 1987, I, 671. Agree, in doctrine, Alunni, The principle, cit., 600 and Lupano, Responsibility for expenses, cit., 7 ss. (Which recalls how, for example, the US procedural system regardless of the repetition of litigation costs). Contra Luiso, op. loc. ult. cit. and Cordopatri, Anchor on the motivation, cit., 1384.
[23] As a safeguard for the effectiveness of judicial protection: v. Chiovenda, Principi, cit., 901 et seq., According to which “the basis of this sentence is the objective fact of the loss”, given that “the implementation of the law must not represent a reduction in assets for the party in favor of it” and with the clarification that “only at the moment of the ruling on the matter, that is, when the unsuccessful party is determined, does not the winner have the right to pay the costs, but the obligation of the judge to order the unsuccessful in the costs themselves”. See Lupano, Responsibility for expenses, cit., 14 ss and 97, Scarselli, The new art. 92, paragraph 2, cpc, in Foro It., 2015, V, 50 and Alunni, The principle, cit., 602, who recall the attention that jurisprudence instead usually reserves for the imputability of the judgment on a subjective level (see Cass., 13 January 2015, n. 373, cit., Id., 15 July 2008, n. 19456, in Mas. Giur. It., 2008 and Id., 16 May 2003, n. 7716, therein. , 2003). A composite system has thus been outlined, within which, with the criterion of losing, those of interest, causality and fault concur (see Bongiorno, Court expenses, cit., 3). This, for a long time and precisely through the discretionary breach (already) ensured by art. 92, paragraph 2, c.p.c. (see Gualandi, Expenditure, cit., 1216 and 1659). Art. 91 c.p.c. consequently assumed sanctioning traits in the light of which the correlation of the provision by the Court to the repression of the abuse of the process is explained (in the same terms, Cordopatri, Ancora sulla motivazione, cit., 1388). However, one wonders what time will happen to this orientation, given that the mandatory provision of the few residual compensation cases would seem to eliminate at the root any residual space for evaluation by the magistrate.
[24] See Cass., 27 January 2015, n. 1443, in Guida al dir., 2015, 22, 59 (as amended), Id.
May 28, 2012 n. 8486, ibid, 2012, 31, 69, Id., S.U., 30 July 2008, n. 20598, cit. and n. 20599, in Mass. Giur. It., 2008, which, as an example, include among the possible (former) reasons for compensating expenses the objective difficulty of the assessment, if such as to undermine the exact a priori knowledge of the respective reasons of the parties.
[25] So much so that, in the early months of 2016, a first opinion of the unconstitutionality of art. 92, paragraph 2, c.p.c .: v. Scarselli, Il nuovo, cit., 51 ff, who – recalling that losing does not always mean “wrong” – condemns the intent to discourage disputes through inadmissible differences in treatment in terms of rights of action and defense.
[26] Conv. With amendments in l. 4 August 2006 n. 248.
[27] Conv. With amendments in l. 24 March 2012 n. 27.
[28] Indeed, the Ministerial Decree n. 55/2015 cit. – unlike the previous Ministerial Decree 20 July 2012 n. 140, which in art. 1, paragraph 7, proclaimed that “in no case are the numerical thresholds indicated […] both in the minimums and in the maximums […] binding for the settlement itself” – does not explicitly clarify the purely indicative scope of the relative parameters. However, this gap cannot be used to revive the outdated tariff constraint, also because the new decree falls within the same (primary) regulatory framework as the previous decree, also engraved by the aforementioned art. 2, paragraph 1, lett. a), d.l. n. 223/2006 cit. (which repealed all “the legislative and regulatory provisions that provide with reference to free professional and intellectual activities: a) the mandatory nature of fixed or minimum rates”).
[29] See Scarselli, Il nuovo, cit., 53, according to which the new art. 92, paragraph 2, of the Italian Criminal Code, by encouraging an equitably tempered settlement of expenses, will ensure that “irrationality will be compounded by other and different inconsistencies”, considering that the unsuccessful person’s irreproachability should not logically be relevant in the economic evaluation of legal services.
[30] Also given the relevance of the “subjective attitude of the losing party […] to be assessed with reference to the time when the dispute was introduced”. Thus Cass., Ord., 24 October 2014 n. 22675, in Mass. Giur. It., 2014, Id., Ord. 10 February 2014 n. 2883, ibidem and Id. 22 February 2012 n. 2572, therein, 2012 (formerly Cass., 6 August 1953, n. 2667, in Rep. Foro It., 1953). Agree, in doctrine, Scarselli, The new, cit., 51 and Alunni, The principle, cit., 602.
[31] Giordano, Brevi considerazioni, cit., 1171, recalls in this regard the example offered by the Austrian system, where the decision on the costs of the litigation is made with a special order, together with the sentence that defines the judgment.
