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Procedural time limits- Applicable law
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Procedural time limits - Italy
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1. Various types of deadlines applicable under the various procedural rules in civil matters (for example, procedural time limits, periods of prescription or limitation, prefixed periods, etc.)
A procedural time limit is a period of time by which or after which a certain procedural step must or may be taken.
Procedural time limits are laid down by statute (statutory time limits (termini legali)); they may also be set by the court (which may make them a matter of limitation, so that rights will be extinguished if they are not complied with), but only where that is expressly provided for by statute (judicial time limits (termini giudiziari)).
Procedural time limits may be put into one of three traditional categories: minimum intervals (e.g. the minimum period before an appearance in court), mandatory time limits (e.g. for appeals or for joinder of a party), and directive time limits (e.g. for entering a judgment).
Minimum intervals (termini dilatori) consist of a period of time between an act that is complete in itself (e.g. a summons) and a certain legal effect (e.g. the possibility of an appearance); they temporarily suspend the effect of an act that is complete in its essential elements.
Mandatory time limits (termini perentori) are only those that are expressly declared to be so by statute or by the court where that is provided for by statute. The mandatory nature of a time limit may also be inferred from the function which the limit is intended to discharge (Constitutional Court in Corte Cost. ord. 107/2003).
The category of directive time limits (termini ordinatori) is a residual category which gathers together all time limits that are not minimum intervals or mandatory time limits.
The distinction is important, not only because the consequences of failure to comply are different, but also because mandatory time limits cannot be shortened or extended, not even with the agreement of the parties, whereas directive time limits may be shortened or extended before they expire, on application or of the court's own motion, as provided by Articles 153 and 154 of the Code of Civil Procedure. Even minimum intervals may be varied (exemption, shortening) in the cases provided for by statute; the question whether Article 154 of the Code of Civil Procedure is generally applicable to minimum intervals is a subject of disagreement in the literature.
These procedural time limits have to be distinguished from periods of prescription or limitation, which are a matter of substantive law governed by the Civil Code itself (Articles 2934‑2963 and 2964‑2969 respectively).
In particular, prescription (prescrizione) extinguishes a right where it has not been exercised by the entitled party for a statutory period.
Limitation (decadenza) extinguishes a right (normally a power or faculty) on the expiry of a mandatory time limit established by statute or by the parties for the performance of certain acts; the objective or subjective circumstances that led to the fruitless passing of time are irrelevant.
Prescription is not automatic, but must be solicited by a party, either in an action brought by that party or in an objection to an action brought by someone else. An application or objection by a party is necessary for limitation too, except that where an entitlement is outside the discretion of the parties (rights not capable of assignment such as rights relating to status, personality rights, family law rights etc.), the court must of its own motion find that the action is inadmissible.
Suspension. Under Law 1969/742, time limits running during the summer recess (1 August – 15 September every year), or which are to begin running during such period, are suspended by law from 1 August to 15 September of each year, and resume operation or commence operation from the end of the period of suspension. The law provides for exceptions: the suspension does not apply to the suits and proceedings indicated in Article 92 of the Judicial Rules (ordinamento giudiziario; such as for example actions for maintenance, actions in respect of employment, statutory welfare and social security, actions against enforcement or interim proceedings).
Excluded from the scope of Law 1969/742 are the time limits for the exercise of substantive entitlements (e.g. time limits for reporting defects in goods sold).
Sources: Articles 152-155 of the Code of Civil Procedure; Law 1969/742.
2. List of the various days envisaged as non-working days pursuant to the Regulation (EEC, Euratom) n° 1182/71 of 3 June 1971.
The following are regarded as non-working days: all Sundays, 1 January, 6 January, 25 April, Monday after Easter, 1 May, 2 June, 15 August, 1 November, 18 December, and 25 and 26 December.
Sources: Law 1949/260, amended by Laws 1954/90 and 1977/54, by Presidential Order (DPR) 1985/793 and by Law 2000/336.
3. What are the applicable general rules on time limits for the various civil procedures? Quote references of applicable legislation.
In computing time limits expressed in days or hours, the initial day or hour is excluded, whilst the dies ad quem is taken into account.
To compute time limits expressed in months or years, the common calendar is used; thus the time limit expires upon the expiry of the last moment of the day of the month corresponding to the initial one, or in the case of time limits in years the last moment of the day of the month and the subsequent year corresponding to the initial ones, it being of no importance that the months may have 31 or 28 days or that the calculation may include February of a leap year.
If the time limit expires on a public holiday, it is extended to the first day following that is not a public holiday (Article 155 of the Code of Civil Procedure). The courts have recently held, contrary to the earlier case‑law, that the same rule applies to procedural time limits that run retrogressively; for example, in the case of a sale by auction fixed for a Monday, if the time limit for submission of bids is stated to be "the day before the sale", it ends on the previous Saturday (Court of Cassation in Cass. 2003, no. 19041).
At times the law indicates a time limit in terms of clear days (giorni liberi, an example being the time limits for entering an appearance pursuant to Article 163 bis of the Code of Civil Procedure). In such cases both the dies a quo and the dies ad quem must be excluded from the calculation.
Procedural steps are also provided for in laws governing specific matters, but the rules in the Code of Civil Procedure are of general application in any event.
Sources: Article 155 of the Code of Civil Procedure.
4. When an act or a formality has to be carried out within a given period, what is the starting time - i.e. the initial moment from which the period runs ("terminus a quo") - of this act or of this formality (e.g.: the date of the act, of the event, of the decision or of the date of service and/or intimation from which it runs)?
Time limits, except where they are expressed in terms of hours, start to run from the day on which the act that gives rise to them is performed (e.g. entry of a judgment or notification of an act or measure).
It is irrelevant at which moment of the day such act was effected, because the dies a quo is never taken into account in calculating the time limit.
This is a general principle ("dies a quo non computatur in termino”) which in the absence of any contrary provision applies both to procedural and to substantive matters.
A time limit will often begin to run from the date of notification of an act or the date of publication of a judgment, but time limits can also run from other events.
By way of example:
- the (brief) time limit for appeal or for application for revision under Article 395(4) and (5) of the Code of Civil Procedure begins to run from the service of the judgment;
- the time limit for the determination of jurisdiction or the time limit for contestation of orders made by a judge in chambers begins to run from the communication of the judgment or other measure;
- the general time limit for the limitation of appeals under Article 327 of the Code begins to run from the date of publication of the judgment;
- the time limit for revision under Article 395(1)(2)(3) of the code begins to run from the day on which the fraud or falsehood is discovered or the document is obtained.
4.a) Can the starting point from which the period runs be affected or modified by the method of transmission or service of documents (personal service by a huissier or postal service)?
The question arises with reference to time limits that begin to run from the date of service or notification of proceedings (as, for example, the time limits for appeal against a judgment).
For the purposes of an appeal within the brief time limit laid down in Article 325 of the Code of Civil Procedure (30 days for a first appeal, 60 days for an appeal on a point of law to the Court of Cassation) what counts is the moment of receipt of the copy of the judgment by the addressee, so that the moment from which the time limit begins to run can indeed vary depending on the method of service, since the postal method can entail longer service times than those for delivery by a court bailiff.
But the question is one of practical convenience only, in the sense that the need for speedy action may dictate the use of the court bailiff, since in any event the time limit for an appeal begins to run from the end of the service procedure, and hence from receipt of the document by the addressee.
A question of a different order was recently considered by the Court of Cassation, which, following judgments by the Constitutional Court regarding service by post (judgments No 477 of 2002 and No 28 of 2004), affirmed the principle that the service of a court document is taken to be complete as far as the party serving the document is concerned at the moment the document is given to the court bailiff, whatever the method of transmission thereafter (by post or delivery by the bailiff), whilst vis-à-vis the addressee the service procedure is completed on the date of receipt of the document (judgments of the Court of Cassation Nos 4289 and 13970 of 2004).
The moment the party wishing to have the document served can be said to have completed the service is here separated from the moment when service is complete with respect to the addressee, a principle already accepted by Community Regulation 1348/2000. The principle is concerned only with the timeliness of the service of the document, in that the legal time limit must be deemed to have been observed by the serving party if the document to be served is given to the court bailiff before the time limit expires; it does not affect the starting point or dies a quo of the time limit ‑ the point referred to in the questionnaire ‑ which is the moment of service or communication of a document, the publication of a judgment, or one of various other events explained in greater detail above (see point 4).
For example, an appeal against a judgment at first instance is not barred by the time limit of 30 days from service of the judgment if the writ of appeal is given to the court bailiff within that time, even if it is actually delivered to the addressee after the expiry of the term. As far as the addressee is concerned the service procedure is deemed to be complete only when the document is received.
5. From when does this period begin to run:
5.a) When such a period is expressed in days, does the actual date of the act, of the event, of the decision or of the date of service and/or intimation which begins it count?
If the time limit is expressed in days, the starting day or dies a quo is not included in the calculation.
5.b) When a time limit is expressed in days, does the indicated number of days include calendar days or only working days?
If the time limit is expressed in days, the number of days refers to calendar days, including public holidays (the dies a quo may likewise be a public holiday).
5.c) When such a period is expressed in months or in years?
Time limits expressed in years or months are calculated according to the common calendar. They do not refer to the number of days elapsing: the time limit expires on the day that bears the same number as the dies a quo. A one-year time limit for appeal against a judgment delivered on 30 June in a labour dispute, to which the suspension for the summer recess does not apply, expires on 30 June of the following year; but in a case where the suspension for the summer recess provided for in Law 1969/742 does apply, a one-year time limit calculated as described has to be extended by the 46 days of suspension (1 August – 15 September).
5.d) When do such deadlines expire?
Procedural time limits expire at the last moment of the day, month or year indicated.
6. If the period expires on a Saturday, Sunday or a public holiday or non-working day, is it extended until the first following working day? Is this extension applicable even when the period in question has as a starting point a future event?
- Saturday is regarded as a working day and not as a public holiday. For the list of public holidays, see the reply to question 2.
- Where a time limit would expire on a public holiday, it is extended to the first following day that is not a public holiday; this also applies where the time limit is to run from a future event.
7. When the request is taken to a jurisdiction which has its seat in the mainland territory of the Member State, are deadlines increased for persons who live/reside in one of these entities or for those which live/reside abroad?
The question is not relevant to Italy.
8. Conversely, when the request is taken to a jurisdiction which has its seat in one of these entities distinct geographically from the mainland, are deadlines increased for persons who do not live/reside in these entities or for persons who live/reside abroad?
The question is not relevant to Italy.
9. Are there time limits for appeals specific to certain civil matters?
Restricting the answer to the instrument of appeal itself, specific time limits are provided in bankruptcy cases.
For judgments entered in proceedings opposing a declaration of bankruptcy, the time limit for appeal is short, at 15 days from notification of the judgment (Article 19 of Royal Order (regio decreto) No 267 of 1942).
Bankruptcy proceedings have recently been radically reformed, by Legislative Order (decreto legislativo) No 5 of 9 January 2006 (published in Gazzetta Ufficiale No 12 of 16 January 2006), which is to enter into force on 16 July 2006. Under Article 18 of the Order, the time limit for lodging an appeal against a judgment declaring bankruptcy will be the normal 30 days, which as far as the debtor is concerned will run from the day of service of the judgment.
Specific time limits are also provided in special adoption proceedings, for contesting judgments on the adoptability of minors (Law 1983/184); ordinary appeals and appeals on points of law to the Court of Cassation must both be lodged within a period of 30 days, which begins to run from service of judgment effected by the office of the clerk of the court.
10. Can courts, in an emergency or for any other cause, shorten the appearance time limits or fix a special date for appearance? Conversely can such periods be extended?
The plaintiff is at liberty to choose the day of appearance, but between the day of service and the day of the first hearing there must be a minimum interval of clear days, amounting to 60 days if the place of the service is in Italy and 120 days if it is abroad. However, if there are special reasons of urgency, the president of the court may shorten these time limits by up to a half, at the instance of the plaintiff, by a reasoned order entered at the foot of the original of the summons and transcribed on the copies.
If the day set by the plaintiff exceeds the legal minimum, the defendant may enter an appearance before the minimum time limit expires to ask the president of the court to bring forward the first hearing, though not to a date before the end of the minimum time limit; the president may make an order to that effect, which must be communicated to the plaintiff at least five clear days before the new date for appearance. The same rules apply to appeals.
Within five days of submission of the file on the case the designated examining judge, on his or her own initiative, may postpone the date of the first hearing up to a maximum of 45 days, by an order communicated to the parties to the case (Article 168 bis(5) of the Code of Civil Procedure). That new date is then the reference date for calculating time limits for appearance and for any counterclaim on the part of the defendant (judgment in Cass. 2003, n. 26526).
11. When an act intended for a party resident in a place where he/she would benefit from an extension of a time limit is notified in a place where those who reside there do not benefit from such an extension, does this person lose the benefit of such a time limit?
This question does not appear to be relevant to Italy. A case that seems to be somewhat different is that of the extension of procedural time limits owing to the non-operation or irregular operation of some court offices (pursuant to Law No 437 of 1948): a defendant summoned to appear before one of these offices does qualify for such an extension regardless of the place of service of the document.
12. What are the sanctions in case of non-observance of the periods?
Failure to observe a mandatory time limit and puts an end to the power to perform the relevant act, or more generally extinguishes a right or faculty. The extinction is automatic, and will be declared by the court of its own motion; the consequences are as a rule irreversible, because relief from the effects of the expiration of time (rimessione in termini) is not available generally but only in the instances provided for by statute.
Failure to observe a directive time limit, according to the most recent case‑law of the Court of Cassation (Cass. 2003 n. 6895), has the same barring effect as expiration of a mandatory time limit, and prevents the granting of a new term for the performance of the same act. The predominant opinion among legal writers is that the consequences of non-observance of a directive time limit are determined case by case by the law, generally to the detriment of the party who has failed to respect the time limit, sometimes preventing the valid performance of an act.
The non-observance of a minimum interval renders null and void the initiating act (e.g. where a summons sets a date for appearance earlier than the legal minimum, unless the defendant enters an appearance without raising any objection) or the subsequent act (e.g. under Article 477 of the Code of Civil Procedure, where an enforceable document (titolo esecutivo) is enforceable against a deceased person, an injunction to comply (precetto) may not be served on the heirs until 10 days have elapsed since the service of the enforceable document itself, and failure to observe that interval is a ground for an action challenging enforcement).
13. If the deadline expires, what remedies are available to defaulting parties?
The following remedies are available to defaulting parties:
- Defaulting parties may ask the examining judge to be allowed to perform an act that would otherwise be barred to them if they can show that the nullity of the summons or of the service of the summons prevented them from being apprised of the proceedings or that they were unable to enter an appearance for reasons beyond their control (Article 294 of the Code of Civil Procedure). If the judge finds that the facts as explained have the ring of truth he or she may accept that the impediment has been shown and grant relief from the effects of the expiration of time.
- Defaulting parties against whom judgment has been given may appeal against the judgment even beyond the time limit set in Article 327 of the Code of Criminal Procedure (one year + 46 days for the summer recess) if they can show that they had no cognisance of the proceedings owing to the nullity of the summons or the service of the summons.
Parties who have entered an appearance who show they have lost the possibility of taking some step in their defence for reasons outside their control may ask the judge for relief from the effects of the expiration of time under Article 184bis of the Code of Civil Procedure. This can be done only at the preliminary examination stage of proceedings at first instance. In appeal proceedings, relief from the effects of the expiration of time can be granted only in order to allow a party to adduce new evidence and only provided it is shown that the party was unable to provide it at the first-instance proceedings for reasons beyond the party's control (Article 345 of the Code of Civil Procedure).
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Last update: 07-05-2007
