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Jurisdiction of the courts - Italy

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TABLE OF CONTENTS

A. Should I apply to an ordinary civil court or to a specialised court? A.
B. Where the ordinary courts have jurisdiction, how I can find out which one I should apply to? B.
I. Is there a distinction between lower and higher ordinary civil courts, and if so which one is competent to judge my case? I.
II. Territorial jurisdiction II.
1. The basic rule of territorial jurisdiction. 1.
2. Exceptions to the basic rule 2.
a) When I can choose between the court of the place where the defendant lives and another court? a)
b) When do I have to choose a court other than that in the place where the defendant lives? b)
c) Can the parties designate a court which would not normally be competent? c)
C. Where specialised courts have jurisdiction how can I find out which one to address? C.

 

A. Should I apply to an ordinary civil court or to a specialised court?

At first-instance level courts are presided over by justices of the peace and ordinary trial courts. The role of justice of the peace was instituted by Law No 374/1991; justices of the peace are honorary judges, not career judges. They are appointed for a limited period of time but they are members of the judiciary (see "Organisation of Justice").

There are specialised courts to handle some matters, including:

Juvenile courts, special divisions to deal with agricultural matters attached to trial and appeals courts, and the regional court for cases concerning public waters. These bodies are made up of career judges and experts.

Recently (under Legislative Decree No 168/2003), special division to deal with disputes over industrial and intellectual property were set up at twelve trial and appeals courts (Bari, Bologna, Catania, Florence, Genoa, Milan, Naples, Palermo, Rome, Turin, Trieste and Venice). The sections are staffed by career judges.

B. Where the ordinary courts have jurisdiction, how I can find out which one I should apply to?

Competence refers to the sphere of jurisdiction attributed to each part of the judiciary. The Code of Civil Procedure lays down various criteria for identifying the competent court. Taken together, these criteria determine which court has jurisdiction over the case in question.

First, it must be established whether a justice of the peace or an ordinary court has jurisdiction; this depends on the nature of the case and the amount involved.

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Once the competent court is established, the location of the court must be decided on the basis of the territorial jurisdiction.

I. Is there a distinction between lower and higher ordinary civil courts, and if so which one is competent to judge my case? 

The division of jurisdiction between justices of the peace and ordinary courts is - as above - based the nature of the case and amount involved. Whatever the value, justices of the peace are competent in the following cases:

  1. disputes concerning the setting of boundaries and observance of legal distances for the planting of trees and hedges;
  2. use of condominial services;
  3. smoke, heat, and noise exceeding what are normal levels.

Justices of the peace also hear appeals against rulings or orders to pay fines, but fines of over €15 493.71 are handled by the ordinary courts, as are certain major offences (Law No 689/1981).

A justice of the peace is competent in cases involving the following amounts:

  1. cases involving movable assets with a value of not more than €2 582.28, unless the law assigns jurisdiction to another court;
  2. cases of compensation for damage caused by the circulation of vehicles and boats up to an amount of €15 493.71.

Ordinary courts are competent to judge all cases that do not fall within the jurisdiction of another court. They have exclusive competence for taxes, the status and legal capacity of persons, honorary rights, forgeries, enforcement, and in general any case involving an amount that is not established.

Ordinary courts also have powers of expropriation and generally handle injunction proceedings, even in cases which by their nature come within the jurisdiction of justices of the peace (Article 669ter and Article 669quater of the Code of Civil Procedure - CCP).

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II. Territorial jurisdiction

1. The basic rule of territorial jurisdiction.

The general criterion is the place of jurisdiction of the natural or legal person concerned (sections 18 and 19 CCP).

In particular, unless the law provides otherwise, the competent court is that of the place where the defendant is resident or domiciled or, if that place is unknown, the court of the place where the defendant is living. 

If the defendant has no residence, domicile or place of abode in the country, or if the abode is unknown, the competent court is that of the place of residence of the plaintiff.

For legal persons the place of jurisdiction is where they have their head office or (choice of the party) an establishment and a representative authorised to bring legal proceedings. Companies without legal personality, associations and committees have their headquarters in the place where they habitually carry out their activity.

2. Exceptions to the basic rule
a) When I can choose between the court of the place where the defendant lives and another court?

As well as the general forum of the natural or legal person, it is possible to bring actions before special courts that exist for cases concerning rights in personam. In such cases the party may, therefore, opt for the general forum or turn to the court of the place where the claim in question arose (the originating event may be contractual or non-contractual), i.e. where the claim must be executed (section 20 CCP). The two optional special courts provided for in section 20 CCP and the general forums are concurrent.

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In cases of non-contractual responsibility the courts have consistently ruled that the "place where the obligation is incurred" is the place where the harmful event took place. In cases of breach of contract the obligation at the basis of the action must be the original obligation and not a substitute obligation by way of compensation.

The agreed court, namely that established contractually by the parties, is the same, where not explicitly stated to be exclusive, as the general forum and the optional forum referred to in section 20 CCP.

Bringing suit as a civil party in criminal proceedings. It is possible for a victim of crime or their heirs and successors to bring a suit as a civil party in criminal proceedings against the accused or the party liable under civil law (sections 74 et seq. CCP). Civil proceedings initiated before a civil court can be transferred to a criminal court.

b) When do I have to choose a court other than that in the place where the defendant lives?
  • The claimant is obliged to choose a court other than the general forums where either the law or the parties have made provision for an exclusive place of jurisdiction.

    Exclusive jurisdiction overrides other jurisdictions provided for in law; however, competence determined by exclusive jurisdiction is not mandatory and may be changed where cases are related.

    Exclusive jurisdictions are: the jurisdiction established by law for cases involving rights in rem and possessory actions (law of the place where immovable property is situated, section 21 CCP); that of inheritance cases (place where the succession is opened, section 22 CCP); that of cases involving business associates or co-owners of property (place where the company has its registered office or place where the jointly-owned property is located, section 23 CCP); that of cases involving the management of assets (place where the assets are managed, section 24 CCP).

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  • There are also mandatory special jurisdictions for which there is no exemption, for reasons of public interest. Such jurisdiction may not be moved where cases are related because of the rules on prevention and assimilation or joinders (ex sections et seq. CCP).

    Jurisdiction is mandatory in cases involving state revenue where a government department is a party the competent court is that of the place where the head office of the government department is located, section 25 CCP); opposition to enforcement section 27 CCP); interim injunctions (sections 669ter and 669quater CCP); possessory actions and quia timet injunctions.

    Competence is also invariable in cases involving the public prosecutor's office (cases brought by the prosecution service itself, matrimonial matters, cases involving the state and the legal capacity of persons and other cases laid down by law, section 70 CCP) and cases explicitly provided for by law (section 28 CCP) such as labour disputes (section 413 CCP) and validation of evictions (section 661CCP).

  • Mandatory special courts of particular interest

    Ordinary courts acting as employment tribunals have jurisdiction over disputes concerning individual employment contracts. Territorial competence lies with the court of the place where the employment relationship was formed, i.e.where the worker is employed, or was employed when the relationship ended (section 413 CCP). Any clauses derogating from the competence referred to above are null and void. The defendant may argue lack of competence only in the statement of defence provided for in section 416 CCP or it may be decided by the court itself, but not after the hearing (section 428 CCP).

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    Agency relationships and other forms of permanent collaboration come under the jurisdiction of the court of the place where the commercial agent or representative is domiciled (section 413 CCP).

    For divorce the competent court is the defendant spouse's place of residence or domicile or, where the defendant cannot be traced or resides abroad, at the applicant's place of residence or domicile. Where both parties live abroad, any court in the country may hear the case. Where divorce is by mutual consent, the spouses may choose the place of residence or domicile of one or the other.

    In legal separation proceedings petition is made to the court of the defendant's place of residence or domicile (section 706 CCP). The parties cannot choose by mutual consent a jurisdiction different from that of the residence or domicile of the defendant. However, this does not exclude the possibility of having recourse to the jurisdiction of the applicant where it is impossible to identify the residence or domicile of the defendant.

    In the case of appeals against enforcement jurisdiction on the basis of the nature and value of cases is governed by general rules while territorial competence is invariably attributed to the court of the place of execution, namely the place where execution is pending.

  • What are the consequences of not observing the rules on establishing competence by nature of case, value and territory?

    With the 1990 reform the rules were simplified so that simple incompetence by virtue of territory (excluding, therefore, cases of mandatory competence) may be pleaded only by the defendant in the statement of response. In all other cases (incompetence by virtue of the nature of the case or value, incompetence where the territorial jurisdiction is mandatory) incompetence may also be decided by the judge, but not after the first hearing. To sum up, unless an application is made or if application is made too late, the issue of competence is precluded and competence remains with the court seized (section 38 CCP).

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c) Can the parties designate a court which would not normally be competent?
  • Other than in cases where the law provides for mandatory territorial competence, the parties may modify the rules on competence. The agreement must be set down in writing and concern specific transactions.

    The agreed jurisdiction shall be concurrent with other jurisdictions unless it is expressly specified to be exclusive. Since it is not a mandatory competence, agreed competence (even if exclusive) may in turn be changed where cases are joined.

    A clause derogating from territorial competence contained in contracts entered into by agreement or by signing forms must be explicitly approved in writing. Such explicit approval is not necessary when the contract is freely negotiated between the parties.

    In contracts between consumers and professionals a clause establishing a place other than the residence or domicile of the consumer as the competent jurisdiction is regarded as unfair (section 1469bis CC).

  • Agreement may also be implicit in the address for service (jurisdiction of the address for service).

C. Where specialised courts have jurisdiction how can I find out which one to address?

The nature of the dispute is the criterion determining competence; concurrent with it is the criterion laid down in law for establishing territorial competence.

  • All disputes over agricultural contracts come under the jurisdiction of the special agricultural sections of ordinary courts. This competence is exclusive and mandatory, in part for reasons of territory, competence being rooted in the place where the property lies (Act No 1990/29).
  • In cases involving parental authority, where one or both parents behave in a manner harmful to the child (ex sections 330 et seq. CC), the competence to take the appropriate steps lies with the juvenile court. To identify the court by the territorial criterion, consideration must be given to the de facto residence of the child and hence to their habitual residence on the date of the application or, if proceedings are initiated by the court, on the date the proceedings started. This is a mandatory functional competence.
  • For disputes over industrial and intellectual property (national, international and Community trademarks, licences for inventions and new plant varieties, registered designs, designs, models and copyright, and cases of unfair competition that interfere with the protection of industrial and intellectual property) competence lies with specialised divisions set up by Legislative Decree No 2003/168. Attached to 12 courts (and appeals courts) are specialised divisions competent for disputes that by ordinary criteria would have to be handled by the courts referred to in Article of Legislative Decree No 2003/168. For example, disputes that would have been dealt with by one of the courts in the appeal court districts of Milan and Brescia come under the specialised divisions in Milan.

Useful link: www.giustizia.it

Updated 30.4.2007

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Last update: 10-10-2007

 
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