Preventive Court-appointed technical consultancy, provided for in article 696-bis of the Code of Civil Procedure, is a simplified procedure designed to facilitate settlement agreements between the parties, at a stage preceding the contentious phase of ordinary proceedings, in cases where the dispute has technical aspects which must be clarified by an impartial expert in a contradictory procedure between the parties. More specifically, the procedure provides for the appointment of a technical expert by the competent Court to whom the Judge submits the appropriate questions to clarify the matter in dispute.
This procedure is an effective instrument of procedural deflation, as it allows the parties to obtain technical advice characterised by objectivity and the status of a third party, without having to go through a full proceeding on the merits. The findings of the court-appointed technical consultancy are obviously a solid basis for an amicable agreement. If this fails and then the proceedings on the merits are initiated, they will be based on an already acquired basis, such as the report filed by the court-appointed expert.
Now, the provision of article 696-bis of the Code of Civil Procedure provides that a preventive court-appointed technical consultancy may be requested “for the purpose of ascertaining and determining claims arising from the non-performance of contractual obligations or from a tort”.
However, this provision must be read in coordination with art. 1173 of the Civil Code, according to which the sources of obligations are: (i) contracts, (ii) torts and (iii) “any other act or fact capable of giving rise to them under the law”. In this context, the question has been raised as to why art. 696-bis of the Civil Code on preventive court-appointed technical consultancy considers only obligations arising from contracts and tort but not those arising from other acts or facts capable of giving rise to them, as provided for in art. 1173 of the Civil Code. And whether this unequal treatment is compatible with constitutional principles and, in particular, with article 3 of the Constitution (principle of equality) and article 24 of the Constitution (right of defence).
The Constitutional Court has now ruled on this point, with the very recent judgement No. 222 of 21 December 2023, published in the Official Gazette on December 27, 2023, which declared the unconstitutionality of article 696-bis, paragraph 1, first period of the Code of Civil Procedure, in the part in which it does not provide for its performance for the purposes of the assessment and determination of claims arising also “from any other act or fact capable of producing them in accordance with the legal system”. The Court pointed out that “by authorising preventive court-appointed technical consultancy only for claims arising from the non-performance or improper performance of contractual obligations or from a tort, and not also for all claims arising from any other act or fact capable of giving rise to them in accordance with the legal system, as indicated in article 1173 of the Civil Code, the provision censured leads to a differentiation without a reasonable justification and to a breach, to the detriment of the holders of excluded claims, of the guarantee provided for in article 24 of the Constitution, which is not precluded by the wide discretion of the legislature in matters of procedure, which has also been confirmed by this Court on several occasions”.
In other words, the Court broadened the scope of application of the preventive court-appointed technical consultancy, since a limitation of the objective scope of its operation only to disputes relating to claims arising from contract or tort would generate, firstly, an unreasonable differentiation and unequal treatment between the holders of substantive positions of equal nature (art. 3 Const.) and, secondly, a violation of the right to defence (art. 24 Const.) to the detriment of the holders of credit rights arising from other sources provided for by the system. As the Court underlined, the latter would otherwise , “remain deprived of an alternative instrument to the ordinary judicial protection as well as possibly preordained to it”.
The judgement at stake is certainly to be welcomed, with a view – increasingly felt – to providing valid, rapid and effective tools as an alternative to recourse to the proceeding on the merits.
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