Italy, Verona Tribunal, 28 January 2016

Identification of the case

• Legislative Decree n. 28/2010
• Legislative Decree n. 130/2015 (Transposing Directive n. 2013/11)

• Directive n. 2008/52
• Directive n. 2013/11

Summary of the case

In July 2009, the plaintiffs stipulated with the defendant - i.e. a bank - a contract concerninc the granting of credit facilities in current account, guaranteed by a mortgage. The defendant later filed for - and obtained - an order for payment of  € 991.848,21, amount claimed to be owed on the basis of such contract and not paid. Therefore, the plaintiffs asked for the order to be set aside and sought a stay of the provisional enforcement measures. The national court noted that, according to the national legislation, an order could be set aside only provided that the parties have initiated a mediation procedure. The national court assumes that the Italian provisions about mandatory mediation proceedings as laid out in Legislative Decree n. 28/2010 violate Directive n. 2013/11 and asks for the CJEU to rule over the interpretation of such directive.

• Civil judicial enforcement

The plaintiffs asked for the order of payment to be set aside and for the provisional enforcement measures to be suspended.

1. In so far as it provides that Directive [2013/11] “shall be without prejudice to Directive [2008/52]”, must Article 3(2) of Directive 2013/11 be construed as meaning that it is without prejudice to the possibility for individual Member States of providing for compulsory mediation solely in those cases which do not fall within the scope of Directive 2013/11, that is to say the cases referred to in Article 2 (2) of Directive 2013/11, contractual disputes arising out of contracts other than sales or service contracts, as well as those which do not concern consumers?
2. In so far as it guarantees consumers the possibility of submitting complaints against traders to appropriate entities offering alternative dispute resolution procedures, must Article 1 of Directive 2013/11 be interpreted as meaning that it precludes a national rule which requires the use of mediation in one of the disputes referred to in Article 2(1) of Directive 2013/11 as a precondition for the admissibility of legal proceedings by the consumer, and, in any event, as precluding a national rule that requires a consumer taking part in mediation relating to one of the abovementioned disputes to be assisted by a lawyer and to bear the related costs, and allows a party not to participate in mediation only on the basis of a valid reason?

As far as the first question is concerned, the CJEU points out that Article 1(2) of Directive n. 2008/52 establishes that such directive applies “to cross-border disputes”. Thus, the case discussed does not fall within the scope of the Directive. Indeed, as the Advocate General had noted,

“the decision of the Italian legislature to extend the application of Legislative Decree No 28/2010 to include national disputes cannot have the effect of widening the scope of Directive 2008/52”.

The first question is then dismissed.

With regard to the second question, the Court first assesses whether or not Directive n. 2013/11 applies to Legislative Decree n. 28/2010. The Court points out three criteria to be met in order for such directive to apply:

1. the procedure must have been initiated by a consumer against a trader concerning contractual obligations arising from sales or service contracts;
2. the procedure must be independent, impartial, transparent, effective, fast and fair;
3. "the procedure must be entrusted to an ADR entity (…) established on a durable basis and (…) entered on the list drawn up in accordance with Article 20(2) of Directive 2013/11”. The Court then rules that it is for the national Court to assess whether or not such criteria are met in the deciding case.

In second place, the Court points out that the expression “on a voluntary basis” laid out in Article 1 of Directive n. 2013/11, must be interpreted according to the context and the objectives pursued: moreover, the same Article 1 states that Member States can render participation in an ADR procedure mandatory, provided that, the Court notes, the parties’ right of access to judicial proceedings is maintained. The Court then refers to the Alassini case, and points out that:

1. the fact that the national legislation makes participation in an ADR mandatory does not, but could – i.e. by introducing an additional step before accessing a court – contrast with the principle of effective judicial protection;
2. notwithstanding, fundamental rights may be restricted on the basis of “objectives of general interest pursued by the measure in question” and provided that proportionality is respected.

Mandatory mediation procedure as a requirement to access a court may prove compatible with effective judicial protection, provided that it does not produce a binding decision, does not cause substantial delay for bringing judicial proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs for the parties. The national Court must then assess all these criteria and decide whether they are fulfilled by the national legislation.

According to the principle of effective judicial protection, the Court, in third place, rules that:

1. national legislation cannot obligate the parties to be assisted by a lawyer during a mediation procedure; 
2. a national provision which allows the consumer to withdraw from the mediation proceeding without penalties only if he/she demonstrates the existence of a valid reason constitutes an unjustified restriction of access to justice.

With decision of September 28th, 2017, the Verona Tribunal implemented the CJEU judgment in the case here examined: it firstly assessed that Directive n. 2013/11 cannot apply to the case, since the ADR body which should have had managed the case was not inserted in the proper list and notified to the Commission, as instead laid out by Directive n. 2013/11.

In second place, the Tribunal stated that the parties could participate in the mediation procedure without the assistance of a lawyer or legal counsellor, in accordance with the rulings of the CJEU. The Tribunal also pointed out that requesting mandatory legal assistance – as it is the case in the Italian legislation – does not respect the CJEU ruling according to which the mandatory mediation procedure must not generate new costs for the parties. Therefore, the Tribunal concluded that the provision requesting mandatory legal assistance violates the principle of effective judicial protection (Art. 47 of the CFREU) as well as Articles 6 and 13 of the ECHR.

Role of the Charter and role of the general principles on enforcement

The Court applies Article 47 of the Charter, and in particular it focuses on the principle of effective judicial protection to assess whether or not a national legislation laying out a mandatory mediation procedure infringes such principle. According to the CJEU, the concept of “effective judicial protection” is employed from the perspective of the “fairness” of the trial, pertaining to the access to a judicial remedy and the length and cost of the proceeding.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court
• Right to an effective remedy before a tribunal
• Right to a fair trial
• Right to a public hearing within a reasonable time

The Court refers to Legislative Decree n. 28/2010 and examines whether or not it complies with Directive n. 2013/11 and the principle of effective judicial protection.

The concept of effective judicial protection, related with the concepts of “access to justice” and “fair trial” as laid out in Article 47 of the CFREU and Art. 6 of the ECHR, becomes, according to the CJEU, the interpretative key on the basis of which it analyzes the Italian legislation. Therefore, the Court rules that the national legislation laying out a mandatory mediation procedure as a requirement to access a court complies with such principles only when it does not disproportionately restricts or jeopardizes the right to access to court and when it does not impose new costs or affects the length of the procedure.

• Effectiveness
• Proportionality

The principle of effectiveness of the judicial protection constitutes the key for the CJEU to interpret the national provisions and determine whether or not they comply with the European legislation. The Court states that it is only when the requirement imposed by the national legislation affect the possibility for the consumer to swiftly access to a judicial remedy before a court, said legislation violates the EU Law and its fundamental principles.

The Court briefly refers to the principle of proportionality when it mentions that even the fundamental principles of effective judicial protection may be restricted on the basis of a public interest, but only provided that such restrictions are proportionate.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

• CJEU C-317/08 to C-320/08, Alassini and Others
• CJEU C-561/13, Hoštická and Others

Preliminary reference.

To offer a comprehensive interpretation of Directive n. 2013/11 and its repercussions over national legislation, in light of the principle of effective judicial protection.

Additional notes on the decision

The Milan Tribunal decision of July 18th, 2017, upholds the same principles expressed in the Menini decision, though not mentioning it. With regard to a case concerning a provision laying out a mandatory conciliatory attempt before accessing the Court, the Tribunal pointed out that such provision does not constitute a violation of Art. 47 of the CFREU, provided that it does not lead to a binding decision, does not cause excessive delay or excessive costs. The principle of proportionality is also used as the interpretative tool to distinguish from a justifiable restriction of the right to access to court from an unjustifiable one. The Tribunal does not mention the Menini case; instead it refers to another CJEU decision C-317/08 (Alassini, i.e. also referred to by the CJEU in the Menini decision), which ruled that a mandatory conciliatory meeting in matters concerning phone communications did not constitute an infringement of the individual right to judicial protection.