One of the most serious issues in the Italian legal system concerns the need to guarantee certainty and uniform interpretation of law. The essential purpose of the Court of Cassation in Italy (and, for example, also in France) is to unify the case-law and ensure that the interpretation of texts is the same throughout the whole territory. Legal clarity and certainty contribute to avoiding litigation in an excessive number of cases and guaranteeing the principle of equality. Recently, however, the huge increase in the volume of litigation points out that the Italian legal system does not offer enough legal permanence and certainty. For this reason, the Italian legislator chose to strengthen the nomophylactic function of the Court of Cassation by instating the principle of law in the interest of law (art. 363 of Code of Civil Procedure).
The Italian Court of Cassation has a nomophylactic function. A nomophylactic function is commonly understood as the task of guaranteeing the exact observance and uniform interpretation of the law, supporting the objective unity of national law.
More specifically, the “mission” of the Court of Cassation is ensuring the exact observance of the law in the decisions of judges. The Court of Cassation is responsible for the ongoing overall legality review through which the legislative system achieves the uniform interpretation of national law (Article 65 of the Royal Decree of 30 January 1941, n. 12). Through this uniform interpretation the general and abstract law is translated into principles of law stated by jurisprudence that, when repeatedly invoked, gradually coalesce into “living law”.
Interpretation, in fact, is decidedly subjective. Hence, a single rule can be given a variety of possible meanings. This is the case mostly because of the lack of distinctness and of the ambiguity of the law, but also because of the need to adapt the rule to the ever-changing features of society. To remedy such a proliferation of interpretations, the Court of Cassation has been the guardian of the uniform interpretation of national law throughout history.
Strengthening the nomophylactic function
In the Italian legal system, Article 65 of the Royal Decree of 30 January 1941, n. 12 tasks the Court of Cassation with ensuring the exact compliance and the uniform interpretation of the law as well as the unity of the national legal system.
Therefore, it is apparent that the reference to the role of protector of the uniform interpretation and the exact implementation of the law highlights the function of the Court of Cassation – on top of protecting individual rights (ius litigatoris) – to protect the legal system and the public interest in the exact interpretation of the law (ius constitutionis). For this reason, the Italian legal system chose to strengthen the nomophylactic function of the Court of Cassation by instating Article 363 of Code of Civil Procedure: it assigns the task of stating the principle of law -by which the trial judge should have abided- to the Court, in the interest of the law. This provision is a clear expression of the nomophylactic function of the Court of Cassation.
The Principle of Law in the Interest of Law
Article 363 of the Code of Civil Procedure has been modified by the Law Decree of February 2nd, 2006, n° 40 through which the legislator has intended to strengthen the nomophylactic function of the Court of Cassation. The 2006 reform has positively contributed to increasing the scope of application of the principle of law in the interest of the law.
Article 363 of the Code of Civil Procedure now states as follows: “even when parties have not lodged an appeal adhering to the terms of the law or have waived their right to appeal, namely when the action is not covered and cannot be challenged otherwise, the Attorney General, of the Court of Cassation, can request that the Court sets out, in the interest of law, to enunciate the principle of law to which the trial judge should have abided.” (own translation)
That way, the scope of the legality review has been broadened. In the Italian legal system, protective measures – lacking the features of decision-making and being final – were not reviewed by the Court of Cassation. The latest widening of the legality review to these acts not covered by the Court of Cassation – neither as ordinary nor as extraordinary appeal pursuant to Article 111 (7) of the Italian Constitution – is a telling aspect of the 2006 reform.
The Uniform Interpretation of the Law
As a result of the application of Article 363 of Code of Civil Procedure, a uniform principle of law can be created, which can become a “precedent.” This “precedent” can be applied depending on the merit of the case law. The principle of the law is intended to be generally applied and therefore does not depend on the result of an individual case. The Attorney General may propose an appeal in “the interest of the law,” which cannot be of a merely anticipated or purely exploratory nature. Indeed, the Attorney General can only act if a decision runs contrary to the established law, to denounce the error and ask the Court to restore the order of the legislative system, clarifying the exact and real meaning of the legislation referenced.
Therefore, Article 363 of Code of Civil Procedure aims at obtaining the statement of a principle of law – by the Court of Cassation – that trial judges should follow and abide by.
Thus, the parties should have a mere de facto interest in the suit “in the interest of the law”, since the order – from which the action taken by the Attorney General originates and which concerns them – would not be modified by the judgement pursuant to Article 363 of Code of Civil Procedure.
Consequently, the suit following the request of the Attorney General and regulated by Article 363 (1) of Code of Civil Procedure, because of its sheer nomophylactic function, must satisfy the following requirements:
- at least one specific order not challenged nor suitable for a challenge, not even before the Court of Cassation;
- the believed illegitimacy of the order mentioned above;
- an interest of the law – as a public interest or an interest beyond the interest of the parties – in the statement of a principle of the law that is allegedly important to express in written form.
In order to increase the fruitful implementation of Article 363 of the Code of Civil Procedure it might be desirable for judges and jurisprudence to cooperate and single out effectively the legal issues featuring uncertainty of implementation or ambiguity of formulation.
In conclusion, the Italian legislator has improved the nomophylactic function of the Court of Cassation as a result of the 2006 reform. However, there is still a great deal of work to be done to prevent legal uncertainty as evidenced by the huge increase in the volume of litigation.
Maryam Turrini is a PhD candidate specializing in Civil Procedure Law at the University of Milan, Department of Public Law. She was a visiting researcher from 24.09.2018 till 05.10.2018 at the Leuven Centre for Public Law. She is also a trainee lawyer.
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