The Supreme Court resolves the contrast regarding the starting date of the short term of appeal
With decision no. 6278 on November 6, 2018 – March 4, 2019, the Italian Supreme Court puts an end to the existing jurisprudential conflict concerning the starting date of the short term of appeal provided for by Articles 325 and 326 of the Italian Civil Procedure Code.
More precisely, the Supreme Court had been asked to resolve the following issue: if, with regard to notification of judgments pursuant to Article 326 of the Italian Civil Procedure Code, the term of appeal referred to in Article 325 runs, for the notifying party, from the date of delivery of the judgement to the judicial officer or from the date of completion of the notification to the recipient.
In fact, in preceding Supreme Court case law two opposing orientations could have been identified. The first, expressed in decision no. 883/2014, supported the principle of “presumption of knowledge” of the judgement, pursuant to which the short term of appeal runs, for the notifying party, from the date of delivery of the decision to the judicial officer for their notification, since it is clear its prior knowledge of the judgment.
The second, expressed in decision no. 9258/2015, stated the “synchronic bilaterality” of the effects of notification, pursuant to which the short term runs, also for the notifying party, only from the moment of the completion of the notification procedure towards the recipient.
With the decision at hand the Supreme Court, adhering to the second orientation, states that the short term of appeal starts for both parties from the same date, i.e. the moment in which the notification to the recipient is completed.
This protects the balance and procedural equality between the parties, and guarantees the certainty of juridical relationships, as the res judicata forms simultaneously for all parties.
The notifying party, if partially unsuccessful in the previous judgement, has therefore a longer period to appeal, than the one proposed pursuant to the opposite orientation now dismissed by the Supreme Court.
In fact, the latter states the following principle of law: in the matter of notification of decisions pursuant to the Article 326 of the Italian Civil Procedure Code, the short term of appeal referred to in Article 325 begins also for the notifying party from the date on which the notification is completed to the recipient, as the effects of the notification procedure, such as the expiry of the aforementioned term, must be linked together to its completion and, precisely because they are internal to the procedural relationship, they are necessarily common to the parties.
The Supreme Court found that the principle of “subjective demerger” of the effects of notifications, enucleated by the Italian Constitutional Court in decision no. 477/2002, then incorporated in Article 149, paragraph 3, of the Italian Civil Procedure Code, cannot be applied in this particular area of notification matter, since it assumes the existence of a peremptory term and the need to avoid a forfeiture. In the case at hand, however, the notification of the decision serves to the notifying party to shorten the time for the formation of the res judicata, and not to avoid procedural disqualifications.