Time limits for telematic notification
| Insights
With sentence no. 75 of April 9, 2019 , the Constitutional Court ruled on the question of constitutional legitimacy promoted by the Court of Appeal of Milan, in relation to Article 16 septies of Decree Law 179/2012, upon which “Article 147 of the Italian Criminal Code also applies to notifications made by telematic means. When the notification is made after 9 p.m., it is considered to have been completed at 7 a.m. the following day”.
According to the complainant, art. 16 septies d.l. 179/2012 violates first of all art. 3 Cost, from the point of view of both the principle of equality and that of reasonableness. In fact art. 16 septies d.l. 179/2012 equates the physical domicile to the digital one, implying that paper and telematic notifications are treated in the same way, albeit different. Article 147 of the Code of Civil Procedure, in fact, aims to protect the recipient, to safeguard, that is, the right to rest in a time slot (from 21 to 24) in which he would otherwise have been forced to continue to check their mailbox. However, the simple extension of the hourly limit provided by art. 147 c.p.c. to notifications by pec would not block the inevitable receipt of e-mails by the recipient with the disturbance that follows. In fact, once the PEC has reached the server of the appealed cannot be refused and then the receipt of e-mails can occur at any time, at any time of day or night, even beyond the limit set by art. 147 c.p.c..
Moreover, in the opinion of the Ambrosian Court, Article 16 septies of Law 179/2012 is in conflict with Articles 24 and 111 of the Constitution. In fact, if the notifier opts for the notification by PEC and finds himself sending the document on the last day, he would be forced to do so within the limits of art. 147 c.p.c. – ie from 7 a.m. till 9 p.m. – without being able to fully exploit the time limit for preparing their defense. Term that art. 155 c.p.c. counts in days and, in the case of appeal, expires precisely at the expiration of midnight of the last day.
In upholding the objections raised by the Milan Court of Appeal, the Constitutional Court ruled that the abovementioned Article 16 septies of Decree Law No. 179/2012 was unconstitutional in the part in which – recalling the time limits set forth in Article 147 of the Italian Code of Civil Procedure – provides that the notification made by telematic, from 9 p.m. till midnight, will be completed for the notifier at 7 a.m. the following day, rather than at the time of generation of the receipt of acceptance. In fact, this prediction undermines the confidence that the notifier places in the potential of the technological system.
In stating this, the Constitutional Court first of all noted that the traditional technological system differs from the traditional system of notification, since the latter is based on a mechanism linked to the opening of offices, that is irrelevant for notification done by telematic system. Moreover, it has noted that this assumption has already been implemented by the legislator within the discipline of electronic filing. In fact, regarding the timeliness of the deadline for electronic filing of procedural documents of one party, Article 16 bis of Decree Law 179/2012 paragraph 7 has provided that the “filing is promptly executed when the receipt of delivery is generated by the end of the day of expiration (…)”.