By an order dated December 20, 2023, the Court of Naples asked the Court of Cassation to determine whether an eviction order can be issued against a business lessee for default in the payment of rent, pursuant to Article 658 of the Code of Civil Procedure (c.p.c.).
More specifically, the Court of Naples noted that, according to the provisions of Delegated Law No. 206/2021, and the Report to its implementing decree No. 149/2022 (so-called Cartabia Reform), the eviction procedure for arrears should have been extended to business leases as well.
Yet, the legislator expressly extended to such contracts only the right to seek, prior to the expiry of the contract, an order of release for terminated lease, pursuant to Article 657 c.p.c..
In this regard, the Court of Naples observed that two interpretations are feasible.
According to a first reading, the eviction order for arrears is not applicable to business lease agreements, because such contracts are not expressly covered by Article 658 c.p.c., and Article 658 c.p.c. constitutes a rule of an exceptional nature, which is not enforceable by analogy. Under a second interpretation, Art. 658 c.p.c. applies to all those contracts indicated in Art. 657 c.p.c., to which the Cartabia Reform added business leases.
Therefore, the Court, pursuant to Article 363bis c.p.c., which was also added by the Cartabia Reform, remitted the documents to the Court of Cassation, for a preliminary referral, aimed to settle the question of law under consideration.
In an order dated February 13, 2024, the First President of the Court of Cassation found that the conditions for the settlement of the matter under Article 363bis c.p.c. were met, since such matter: (i) is necessary for the decision of the case before the Court of Naples; (ii) is likely to be raised in a large number of cases; and (iii) involves significant interpretational issues.
Consequently, the First President declared that the preliminary reference raised by the Court of Naples is eligible and assigned the case to the Third Chamber of the Court of Cassation, so that it rules on the applicable principle of law. In the meantime, the Government has approved a draft legislative decree, where it is provided for the Article 658 c.p.c. to be amended, by expressly including the business lessee among the subjects, against whom the order of eviction for default of payment may be issued.
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