1. Brief overview and historical evolution of the standard
L’art. 182 c.p.c. it belongs to that set of rules which guide the investigating judge in the embryonic phase of the civil process. This is confirmed by the topographical location of the provision of the code: art. 182 cpc, in fact, is contained in Chapter II, Title II of the code of procedure, i.e. in that group of rules intended to regulate the investigation and treatment of the case and, on closer inspection, immediately follows the rule governing the non-appearance of the set off. In other words: the examination of the regularity of the powers of representation and/or procedural authorization immediately follows the verification of the regular appearance of the parties.
From the historical point of view, the art. 182 cpc has undergone an important modification which, in the analysis of the argument relating to the defect of the right to demandassumes a decisive role.
The reform, as known, dates back to 2009 (L. 69/2009) and had as its inspiring principle and shared objective that of facilitating the decision on the merits of the case to the detriment of a customary pronunciation which revealed the absence of representative power in the hands of the defender of the party. The then system of lawin the opinion of the writer, stands out from the simple reading and comparison of the pre and post reform standard.
Essential elements of the text of the art. 182 cpc second paragraph pre reform were:
a) the discretionary power of the judge to assign the parties a deadline for the regularization of the appearance in court where he detects a lack of authorization, representation, assistance;
b) the clause of salvation: “unless a forfeiture has occurred” the existence of which prevented the exercise of the power of the judge in favor of a customary ruling.
The text then in force was substantially modified so much so that the new second paragraph of the art. 182 cpc read:
“When it detects a lack of representation, assistance or authorization or a defect that determines the nullity of the power of attorney to the defender, the judge assigns to the parties a peremptory term for the constitution of the person to whom the representation or assistance is due, for the release of the necessary authorizations, or for the issue of the power of attorney for litigation or for the renewal of the same. Observance of the deadline corrects the defects, and the substantial and procedural effects of the request are produced from the moment of the first notification”.
From the comparison of the two pre- and post-reform regulations, therefore, four essential changes can be identified:
a) The obligation on the part of the investigating judge (and no more power) to assign the parties a peremptory term for the regularization of the defect;
b) the elimination of the final salvation clause “unless forfeiture has occurred”;
c) the amnesty from then of the effects of the request, from the first notification, in case of compliance with the deadline set by the judge;
d) the extension of the remedy, in addition to the hypotheses of defect relating to representation, assistance, authorization to the case of defect relating to the power of attorney for litigation.
2. The jurisprudential excursus and the order of the Section II no. 4932/2022
Having resolved, at the hands of the Legislator in 2009, the doubt that arose regarding the duty – power of the judge to assign the useful term to remedy the vice pertaining to the power of procedural representation, the debate focuses around the nature and type of vice that can be remedied. Referring to the classic difference, of doctrinal creation, between nullity and non-existence, one wonders if, thanks to the application of art. 182 cpc, can only and exclusively be remedied the flawed power of attorney or if the nonexistence of the same.
With regard to the concept of renewal, there do not seem to be any doubts: we can argue that the concept of renewal can include all those cases in which a power of attorney exists but is defective and, for this reason, must be precisely renewed or better, quoting the Cassation, “re-issued”. The question arises, on the other hand, from the different interpretation that doctrine and jurisprudence accept in relation to the concept of “release” of the power of attorney for litigation. Hence the two well-known jurisprudential orientations effectively summarized by Order remitting of the Section II no. 4932/2022.
On the one hand, the extensive thesis that relies on the literal data of art. 182 cpc and which allows to subsume in the verb “release” also the hypothesis of the original non-existence of the power of attorney for disputes in favor of the technical defender. If this were not the case, on the other hand, the Legislator would not have contemplated the release – renewal hypotheses opposed by the disjunctive conjunction “or” (Civil Cassation 10885/2018).
On the other hand, the restrictive orientation which limits the applicability of the regularization only to hypotheses of nullity (in the strict sense) of the power of attorney for litigation. And this on the basis of arguments of different nature and origin. The first two, which can be traced back to the general theory of law, can be summarized as follows:
- “the amnesty of the flawed power of attorney always and in any case determines the release of a new power of attorney replacing the previous one” (Cass. SS.UU 10414/2017);
- “What never existed cannot be renewed”.
The third argument, on the other hand, is based on the textual data: from the sentence of the second paragraph which reads “defect that determines the nullity of the power of attorney to the defender” this restrictive orientation infers that the amnesty can and must only concern the hypotheses of nullity of an existing power of attorney . In the event of material absence of a power of attorney, on the other hand, the provision in question could not be applied with the consequent impossibility of amnesty.
It is therefore from the interpretative framework outlined above that the question posed by ordinance 4932/2022 Section II to the United Sections reciting “if, pursuant to the second paragraph of art. 182 cpc, as amended by Law n. 69/2009, the judge must set a deadline for issuing the power of attorney ad litem or for its renewal only if the search issued by the defender of a party both materially present in deeds but, however, is affected by a defect that determines it nullityor even in the event that a lawyer has acted in representation of a party without any power of attorney in the deeds issued by the latter in his favor” (ordinance Section II no. 4932/2022).
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3. The sentence of the Cassation in United Sections 37434/2022
The debate is resolved by United Sections from the Cassation (feels n. 37434 of 21.12.2022) embracing, as is well known, the most rigorous orientation and sanctioning, therefore, the inapplicability of art. 182 cpc to the hypotheses of radical non-existence of the mandate to suit.
The succinct and peremptory principle of law sanctioned by the maximum assembly of Palazzaccio reads as follows:
“The current art. 182, second paragraph, of the code proc. civ., does not make it possible to remedy the non-existence or lack of power of attorney in litigation” (United Sections 37434/2022)
It seems useful, albeit briefly, to retrace the arguments that led to this conclusion:
a) the literal data. The text of the law, making express reference to a defect that determines the nullity of the power of attorney to the defender, does not allow us to contemplate, among the amnesty hypotheses, also the case of radical nonexistence. The vice, in other words, can only be traced back to nullity which, logically, presupposes the existence of the power of attorney;
b) the risk of antinomy. Embracing the extensive orientation would entail the concrete risk of an unresolvable conflict with the artt. 125, co. 2, 165, 166 and 168 cod. proc. civ. and 72 of the avail. att. and trans., who would draw, by letter of the United Sections, “an inconsistent and useless discipline. The inconference, in other words, would derive from the coexistence of antithetical norms: a normative system which foresees the necessary existence from origin of a mandate to suit and a rule that allows, on the other hand, the ex novo issue of the power of attorney once the process has already begun;
c) confusion between procedural legitimacy and procedural representation. If it is true that, pursuant to the articles 82 e 83 c.p.c. (except in exceptional cases expressly regulated) it is not possible to stand in court without the ministry of a defender, it is also true that allowing the ex novo release of the power of attorney for disputes with in effect he was healed from that time it would mean attributing validity to all those acts (in fact) performed personally as if the party had been defended by a lawyer duly provided with a mandate to suit;
d) as a consequence of all the arguments just enucleated, the objection raised by the extensive orientation, advocated by doctrine and jurisprudence, pertaining to the speed of the processes and the duty of the procedural system to respond to the proposed request for justice, would also lose significance.
4. Legislative Decree 149/2022 (so-called Cartabia Reform) and concluding reflections
The reasons stated by the SS.UU. of the Court of Cassation, agreeable or not, must certainly be re-read in the light of the latest modification of the code of procedure (D.Lgs 149/2022 cd Riforma Cartabia). The reform of the procedural rules also involves art. 182 cpc which, in the new formulation net of the unchanged paragraph 1, establishes that:
When it detects the lack of power of attorney to the defender or a lack of representation, assistance or authorization which determines its nullity, the judge assigns to the parties a peremptory term for the constitution of the person to whom the representation or assistance is entitled, for the issue of the necessary authorizations, or for the release of the power of attorney for litigation or for the renewal of the same. Observance of the deadline corrects the defects, and the substantial and procedural effects of the request are produced from the moment of the first notification.
From a first reading of the recently amended law, it is possible to state that there has been a substantial “turnaround” legislative compared to the thesis advocated by the SS.UU. The legislative text, in fact, precisely contemplates the hypothesis of amnesty even in the event of “lack of power of attorney” for the defender.
The amendment to the law examined in this paper must be read together with the contextual introduction of art. 171bis cpc according to which it is the duty of the judge, ex officio, to verify the regularity of the adversarial hearing by stating, when necessary, the measures referred to (among others) in art. 182 cpc
The dissent and discontinuity with respect to what the Ermines affirmed in Sections United are confirmed, ex post, by reading the report presented by the Commission charged with studying and preparing the amendment to the ritual code (so-called Luiso Commission). The writing submitted to the attention of the Minister of Justice Cartabia chronologically anticipates the publication of the sentence of the Supreme Court of Cassation in United Sections, however not expressly providing for the modification of art. 182 cpc The doubt therefore arises whether the express acceptance of the more restrictive orientation by the United Sections led the Legislator to rethink, in an extensive sense, the amnesty hypotheses envisaged by the ritual code on the subject of lack of the right to demand probably with the intention of making the rulings on the merits prevail over the usual ones with the aim, permeating the entire reform to the letter of the same Commission, of responding (hopefully within a reasonable time) to the question of justice.
