Proceedings for injunction and settlement attempt

On the subject of debt recovery arising from agrarian contracts, specifically claims arising from non-payment of rent and ancillary charges, the Supreme Court has, recently, shed light on whether or not the prior attempt at conciliation is mandatory, as provided for in Article 46 l. 203/82, subsequently amended by Article 11 d.lgs. 150/2011, necessary if the plaintiff intends to institute injunction proceedings.

The Court of Legitimacy was asked to review a ruling rendered by the territorial court, which ruled, in adherence to the principle expressed at the time by the Constitutional Court in ruling no. 276/2000, rejecting the debtor’s opposition to an injunction, that “the compulsory attempt at conciliation is structurally linked to a trial based on adversarial proceedings […] therefore, cases in which instead the trial must take place in a first phase necessarily without adversarial proceedings, as is the case with proceedings for an injunction, are by definition extraneous to the institution.”

In the first and second instance it was, in fact, noted a logical incompatibility between the prior attempt at conciliation and a proceeding essentially aimed at obtaining an enforceable title for the recovery of the claim asserted which is, at least in its initial stage, carried out in the absence of a contractual agreement between the parties, since it is based on the mere filing of an application for an injunction and the subsequent issuance by the judge of the injunction decree rendered on the basis of only the arguments and documentation attached by the creditor.

In fact, only in the event of opposition will the proceedings be conducted adversarially between the parties in order to ascertain the actual existence and amount of the claim.

Disagreeing with this reconstruction, in ruling no. 6839 of March 20, 2018, the Supreme Court noted that in the case at hand, since the claim stems from the non-performance of an agricultural contract, the matter remains governed by Article 11 Leg. September 1, 2011 no. 150 according to which, on the one hand, disputes regarding agrarian contracts or resulting from the conversion of associative contracts into leases are governed by labor law, except as otherwise provided in the same article, and, on the other hand, that anyone wishing to bring a claim related to the matters just mentioned must, in advance, notify the agriculture sector at the region of jurisdiction in order to carry out the mandatory attempt at conciliation.

It is the legislature itself, therefore, that sanctions that the compulsory attempt at conciliation must always be preventive, that is, activated prior to the initiation of any proceedings, given that the rule that provides for it is mandatory and imperative in nature and performs the precise function of a filter to the initiation of judicial disputes. The natural conclusion is that it cannot be argued that an attempt cannot be made at a time after the proceedings have been instituted, even if they are summary proceedings – in the absence of cross-examination – as injunction proceedings are.

This appears, in good substance, to be the difference with the “pure and simple” labor rite, on the basis of which the agrarian procedure was modeled and which likewise provides for the compulsory trial of the conciliation attempt between the parties. However, the labor rite does not provide for the sanction of inadmissibility of the claim where the proceedings are instituted in the absence of the prior trial of the aforementioned attempt. Failure to make a prior attempt, in fact, in the labor rite is limited to configuring a sui generis condition of improcedibility capable of determining only the temporary suspension of the proceedings by order of the Judge and concomitant granting of a peremptory term within which to carry out the attempt provided for ex lege, and only following the failure to make the attempt within the allotted term will the proceedings be declared improcedible.

The rationale for the different relevance of the prior experiment in the agrarian sphere, however, remains anchored in the interest of safeguarding and preserving existing agrarian relationships. A rationale that favors out-of-court settlement of disputes related to the use of funds.

In conclusion, should the creditor be granted the right to take action for recovery in the monitoring procedure without first attempting a conciliation with the other party in a protected forum (ex Article 46 l. 203/82 and Article 11, Legislative Decree 150/2011), the underlying intent of the sector regulations in the event of opposition by the debtor/cultivator would be undermined.

The opposing debtor would be in the impossibility of fully protecting himself, given the incompatibility of the timeframes provided for the initiation of litigation after having exhausted the agrarian conciliation attempt and the timeframes provided for forced recovery actions under Article 641 et seq. of the CCP.

In the agricultural field, in fact, taking into account, on the one hand, the absence of a provision such as the one provided for the labor rite in Article 410 c.p.c., which in paragraph 2 textually states: “The communication of the request for the completion of the conciliation attempt interrupts the statute of limitations and suspends, for the duration of the conciliation attempt and for twenty days after its conclusion, the running of any period of forfeiture” and, on the other hand, of the impossibility of bringing the case before the court before sixty days have elapsed since the request addressed to the administrative body of the agrarian conciliation, the opponent would find it impossible to meet the peremptory deadline enshrined in Article 641 of the Code of Civil Procedure, which provides that the opposition must be brought within forty days of the notification of the injunction.

In light of the above arguments, therefore, in agrarian matters, the obligation has been confirmed for those who intend to institute a monitoring proceeding to protect a credit right arising from an agrarian relationship, to provide for the mandatory attempt at conciliation in a protected venue as provided for by the sector regulations, and this under penalty of inadmissibility of the application detectable ex officio by the judge hearing the case(see Cass. Civ., Sec. III, March 20, 2018, no. 6839).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo