Service of documents - Italy

TABLE OF CONTENTS 1. What does the legal term “service of documents” mean in practical terms? Why are there specific rules on the “service of documents”?  2. Which documents need to be served formally?  3. Who is responsible for serving a document?  4. How is the document in practice normally served?  5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?  6. Is there any written proof that the document has been served?  7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)?  8. Do I have to pay for the service of a document, and if so, how much?

 

1. What does the legal term “service of documents” mean in practical terms? Why are there specific rules on the “service of documents”?

Simple service (section 136 of the Code of Civil Procedure) is an act whereby the court registry informs the parties or other persons involved in a court case (prosecution service, experts and other auxiliaries, witnesses) that specified facts relevant to the case have been ascertained.

Simple service, therefore, serves an information function and has no effect in terms of starting time-limits for stages of the procedure, except in the rare cases provided for by the law (e.g. service of judgment for the purposes of launching the time-limit for bringing an appeal).

Formal notification, on the other hand, is an act whereby a bailiff, acting on application by a party, the prosecution service or the court registry, acquaints the addressee with another document of which he is given a certified copy of the original. The object of the exercise is that the addressee should be aware of the document.

The different purposes served justify the use of different procedures for service of documents (cf. sections 136 – 151 of the Code of Civil Procedure)

2. Which documents need to be served formally?

Simple service is carried out in cases where it is provided for by statute or ordered by the court (e.g. the law provides for simple service of orders issued by the judge in chambers, under section 176 of the Code of Civil Procedure, and orders deferring proceedings where the parties fail to appear, under section 181 of the Code of Civil Procedure).

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Formal notification is carried out in cases where it is provided for by statute for the purposes of attaining specific procedural results. It covers formal court documents (e.g. judgment where only a short period is allowed for an appeal), court registry documents (registrar’s notification), documents emanating from parties to a case (e.g. writs of summons), and documents issued by the prosecution service (e.g. appeals).

3. Who is responsible for serving a document?

Simple service is carried out exclusively by the court registry.

Formal notification of documents is effected by court bailiffs acting in accordance with precise rules of territorial jurisdiction (cf. Act 1959/1229).

By Act 1994/53 the power to effect formal notification, previously enjoyed exclusively by bailiffs, was extended to advocates, for all documents in civil, administrative and non-judicial matters.

For that purpose the lawyer must be entered in the register of advocates, hold a power of attorney, be licensed by the council of the bar at which he practises and hold a registration certificate valid for the period in question.

The lawyer can effect formal notification by means of direct delivery after authentification of the document by the local bar council, provided the addressee is another advocate registered in the same local bar as the lawyer effecting service.

Notification can also be effected by post (the most commonly used form), in accordance with the rules laid down by Act 1982/890, except where the judicial authority orders personal service.

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4. How is the document in practice normally served?

Simple service is made with a “registry note” in two parts, one of which is kept by the addressee and the other is filed at the registry.

The document may be served in one of the two forms provided for by statute: direct personal delivery to the addressee, who signs a receipt form, or by a bailiff. In the latter case, service may be made either personally or by post.

Act 2005/80 (ratifying Legislative Decree 35 of 14 March 2005) amended various provisions of the Code of Civil Procedure (sections 133, 134 and 176), so that the registry can now serve notices of cases brought, judgments given, orders made by the court outside the formal hearings and all decisions by the examining judge by fax or e-mail, subject to the legislation governing the signing, transmission and reception of documents by computer or remote communication technologies (Presidential Decree 2000/445, as amended). For that purpose the defence lawyer must state in the first document registered for the purposes of the case at what fax number or e-mail address he wishes to receive notification.

Presidential Decree 2001/123 provides in general terms for the use of computerised technologies for communication (and service) of documents in civil proceedings.

Formal notification is effected on application by a party or at the request of the prosecution service; where a party is legally represented, the application must be made by the representative.

Formal notification always consists of delivery of a certified copy of the original, and there are two basic modes of delivery: 1) direct personal service, and 2) service by post, except where the judicial authority or the requesting party demands personal service. Specific forms can be ordered by the court in specific cases (e.g. the telegraph); service by public announcement may also be ordered if there are major difficulties with the more conventional modes of service on account of the number of addressees.

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Personal service is carried out at the times of day specified in section 147 of the Code of Civil Procedure by handing a certified copy of the original to the addressee, and the bailiff effecting service records the fact by endorsing the original and the copy.

Service by post is carried out by sending a registered letter with advice of delivery in accordance with Act 1982/890.

Presidential Decree 2001/123 provides for electronic transmission as a means of effecting service (request for service, carrying out of service, presentation by the bailiff to the party of the signed document as served, with delivery receipt signed electronically); but the bailiff may still serve the document in the conventional way if there are difficulties with electronic transmission.

Telecommunication techniques may be used for the transmission of procedural documents between advocates for the same party, provided they have the power of attorney and all the other requirements of Act 1993/183 are met.

Company cases. In cases concerning companies and financial intermediaries, including banks and credit institutions, service can always be made not only by the conventional means under sections 136 et. seq. of the Code of Civil Procedure but also:

1. by fax;
2. by e-mail;
3. by direct exchange between legal representatives with signatures endorsed for receipt on the original, even by staff employed in the lawyers’ offices.

Transmission by fax or e-mail must comply with the legislation on the signing and transmission of computerised documents transmitted electronically (see Legislative Decree 2004/5).

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5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?

A) Formal notification by personal service

1. The bailiff always begins by seeking to serve documents personally on the addressee; he will usually begin by going to the addressee’s home or, if that is not possible, wherever he can find him, though always within the limits of his geographical jurisdiction; refusal to accept the copy is treated as personal service (section 138 of the Code of Civil Procedure).
2. If this procedure is not possible, service can be made: a) in the district in which the addressee lives, at (in the following order) the house in which he lives or has his office or exercises his industry or trade, by delivery to a member of his family or a person employed in his office or firm, but not to minors aged 14 or less or to persons who are manifestly not capable of acting legally; b) in the absence of such persons, the copy is handed to the warden or caretaker of the house in which he lives or has his office or place of work; c) if there is no warden or caretaker, to a next-door neighbour who accepts it; the warden/caretaker or neighbour must then sign a receipt and the bailiff informs the addressee by registered letter that service has been thus effected (section 139 of the Code of Civil Procedure).
3. If the addressee cannot be found (including cases of temporary absence), or is incapable of acting, or the substitutes listed above refuse to accept the service, service must be effected in accordance with the following procedure: a) copy of the document deposited at the town hall; b) notice of deposit affixed to the door of the addressee’s home, office or place of work; c) registered letter with advice of delivery sent to the addressee to inform him that the document has been deposited for him at the town hall (section 140 of the Code of Civil Procedure);
4. If the addressee’s habitual residence, abode and official residence are unknown, service is carried out by depositing a copy at the town hall of his last place of residence or, if that is unknown, at the town hall of his place of birth. If these places are also unknown, the copy will be sent to the prosecution service (section 143 of the Code of Civil Procedure).

B) Formal notification by post

1. Where service is effected by post, the bailiff records the fact, specifying the post office at which the document was handed in. The post office must hand the document personally to the addressee, and service is deemed to have been effected even if the addressee refuses to accept it.
2. If the addressee is temporarily absent, the document is delivered to the person designated under section 7 of Act 1982/890.
3. If those persons are absent, or are not appropriate persons to receive service or refuse to do so, the document is deposited at the post office, where the staff display a notice at the entrance or place it in the letter box for the address; the addressee is also sent a notice by registered letter with advice of delivery.

The Constitutional Court has given judgment in a case concerning this question (Case 346 of 1998), where it held that section 8 of Act 1982/90 was unconstitutional is so far as it provided that the document was to be returned to sender after ten days had elapsed following the date of deposit and that service was deemed to have been effected at that point.

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Once he has entered an appearance in the case the prosecutor is the addressee for service of all documents; the judgment must also be served on the prosecutor for the purpose of launching time-limits for appeals (sections 170 and 285 of the Code of Civil Procedure).

Special forms of formal service

• Service abroad is carried out on the basis of international conventions and, only when none is applicable or they cannot be applied, on the basis of section 142 of the Code of Civil Procedure (transmission to the addressee by post with another copy being sent to the prosecution service which arranges transmission to the Ministry of Foreign Affairs for forwarding to the addressee). For formal notification and simple service of judicial and extra-judicial documents in civil and commercial matters in the Member States of the EU (except Denmark), Council Regulation (EC) No 1348/2000 applies.
• Where an address for service is selected, documents can be served at that address unless the person designated to receive service dies or relocates or no longer exercises the relevant function; this form of service is compulsory if the address for service is elected in a contract and the parties have expressly stated their intention accordingly (section 141 of the Code of Civil Procedure).
• There are special rules for service on active military personnel (section 146 of the Code of Civil Procedure).
• In the case of service on a legal person (e.g. a company) or a collective body not possessing legal personality (partnerships, associations), the copy is delivered to the representative or the other persons indicated in section 145 of the Code of Civil Procedure, at the registered office of the company or other body or, if there is none, to the natural person indicated in the constitutional document as being the legal representative, in accordance with the ordinary forms set out in sections 138 et seq. of the Code of Civil Procedure.
• Service on State Administrations is effected at the office of the State Attorney for the territorial area in which the judicial authority having jurisdiction in the case is located (section 11 of Consolidated Act 1933/1611). If the Administration is legally represented by a private-sector lawyer or one of its own civil servants (e.g. in certain proceedings before the justice of the peace), service proceeds in accordance with the ordinary rules.

6. Is there any written proof that the document has been served?

In the case of formal notification by personal delivery, the bailiff must make a documentary record of his activity by endorsing the original and the copy of the relevant document with an indication of the manner and place in which service was effected (person and status), the time, refusal (if any) to accept service of the copy or to sign the original, the researches undertaken, grounds for failure to serve and information gathered on location of the addressee.

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In the event of service by post, documentary evidence of service is further provided by the bailiff’s report and by the receipt returned with the endorsement by the post office that made the delivery.

The bailiff’s report is an official document, and it is an authentic record, unless proved to be a forgery, of the inquiries made, the facts that occurred in the bailiff’s presence and the statements made to him; it constitutes authentic evidence subject to proof to the contrary of other circumstances that he did not ascertain personally (e.g. the status of family member or domestic staff of the person who accepted service).

As regards service by electronic communications, the bailiff returns the document served by the same technique, accompanied by a receipt authenticated by his electronic signature.

In simple service, evidence is given by the receipt signed by the addressee or the bailiff’s report, together with the receipt for the registered letter in the event of service by post.

For service by electronic techniques or e-mail, evidence is given by the delivery receipt with computer-recorded electronic signature.

7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)?

The effectiveness of service flows from the fact that the copy is handed over in due form (principle of reception or knowledge in accordance with the law); the fact that the addressee has actually been acquainted with the content of the document or was acquainted with it in some other way or by some other procedure is therefore quite irrelevant.

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Non-existence – nullity

Formal notification has not taken place if the document is not delivered to the addressee or is delivered to a place or person that is unrelated to the addressee.

It is null and void if statutory provisions concerning the person to whom the copy is to be handed over are not complied with, if there is real uncertainty as to the person to whom or the date on which it was handed over or if the provisions governing the bailiff’s powers have been violated.

The distinction is important, because only a notification that is null and void rather than one which is non-existent for legal or practical reasons can be remedied.

Nullity of a notification can be remedied with ab initio effect if a repeated attempt is successful or if the object pursued is attained anyway. For example, if the addressee enters an appearance to defend his case, the nullity of notification of the writ is automatically remedied.

Simple service can also be non-existent or null and void. The courts have held that there was no valid service when judicial documents were communicated to one of the parties by delivery of a registry document to a person not duly empowered to receive it by the party’s legal representative.

If the registry avails itself of the bailiff’s services to deliver a document, any nullity of notification renders the communication null and void. Communications can be validly effected in equivalent forms, provided they actually come from the registry and it is visibly clear that the document was delivered to the addressee and on what date.

8. Do I have to pay for the service of a document, and if so, how much?

Parties who request formal notification must pay the bailiff, in advance, the charges and costs of delivering or carrying the documents to be served (Consolidated Act 2002/115 on costs in legal proceedings).

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The charges are payable on the scales provided for by statute and vary with the number of addressees (from €2.58 for two addressees to €12.39 for a further six addressees).

Carriage costs are payable on the scales provided for by statute and vary on a progressive scale with the distance in kilometres to be covered; the rates are modest (for distances of more than 18 km the cost is €3.06, plus €0.65 per additional 6 km or fraction of at least 3 km). The charges and carriage costs are raised by a half for urgent documents for same-day or next-day delivery.

For formal notification requested by the judicial authorities (meaning the prosecution service or the court registry), the first party who commences the proceedings must pay in advance the carriage and delivery charges at a standard rate determined by the table in Annex 1 to Consolidated Act 2002/115 (€2.46 for all cases, with a few exceptions; but the difference is then only a few euros).

There are no specific charges for simple service effected direct by the court registry by sending the registry document to the addressee or his legal representative.

If the party is eligible for legal aid, the bailiff’s charges and carriage costs and all costs of service are payable in advance by the Treasury or debited to it.

For employment, welfare and social security disputes, there is an exemption from all charges and costs for acts done by the bailiff (section 10 of Act 1973/533 and sections 30 and 32 of Consolidated Act 2002/115). There is a similar exemption in cases concerning the adoption of minors (Act 1983/184).

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Last update: 26-06-2006