Mandatory attempt at conciliation in injunction procedure in the field of telecommunications
With the recent ordinance no. 16594/2019, the Supreme Court referred to the Joint Session the following questions: (i) whether the attempt at conciliation is mandatory in injunction procedure in the field of telecommunications, or not; (ii) in case of positive answer, in case such obligation is not fulfilled, whether the injunction procedure can proceed or not, or the claim is admissible; and (iii) in case of negative answer to the first question, which party is burdened with the attempt at conciliation in the subsequent proceeding on the merit.
L. no. 249/1997, which established the Authority for Communications Guarantees (AGCOM) and regulated telecommunications and broadcasting systems, provides that in case of disputes between users and an authorized party or recipient of licenses, or between authorized parties or recipients of licenses among themselves, it is not possible to file a lawsuit until a mandatory conciliation attempt has been made, attempt that shall be closed within thirty days from the relevant application to the Authority.
With the recent ordinance no. 16594/2019, the Supreme Court examined the applicable legislation, focusing particularly on AGCOM Resolution no. 182/2012 with which the Authority adopted the regulation on the resolution of disputes between telecommunication organizations and users, and on AGCOM Resolution no. 173/07/CONS that, in providing for the mandatory attempt at conciliation in telecommunications disputes under penalty of non-admissibility of lawsuits before jurisdictional Courts, excludes those in which the breach does not depend on disputes on services performed.
The Supreme Court then examined the case law, analyzing the only relevant precedent – i.e. Supreme Court judgment no. 25611/2016 – according to which, in line with Constitutional Court judgment no. 276/2000, the mandatory attempt at conciliation is not applicable to injunction procedures, as it is structurally linked to lawsuits based on the adversarial procedure – not envisaged in injunctions proceedings.
In referring the matter to the Joint Session, the Supreme Court proposes four distinct possible solutions for the case at hand, expressing, in any case, its favor for the application of the mandatory attempt at conciliation also for injunctions.