La rilevazione del difetto di giurisdizione secondo la riforma del processo civile: quali implicazioni per l’art. 11 della legge n. 218/1995?

The upcoming reform of the Italian rules of civil procedure is expected to deal, among other matters, with the defense of lack of jurisdiction, specifically the issue whether and in which cases a court may deny its jurisdiction on its own motion. The Law No 206 of 2021, which sets out the criteria that the Government is required to follow when drafting the legislative decrees whereby the reform will be carried out, addresses the matter in Article 1(22)(c). It is unclear whether this provision should be understood in such a way that it encompasses every situation where the jurisdiction of a civil court may be at stake, that is, cases with a foreign element, whenever the question is raised of the power of Italian courts to rule on the matter; and proceedings involving an assessment of the acts or omissions of an administrative authority, where the issues is raised of whether an administrative tribunal, rather than a civil court, should decide the matter. The author contends that, even if a broad reading were retained, the Government should rely on Article 1(22)(c) of the Law only for the purpose of revising the rules on the allocation of cases between civil courts and administrative (or other specialized) tribunals. The rules regarding jurisdiction in cross-border cases, it is argued, should instead remain unaffected by the reform. The latter rules reflect specific “international” concerns. Aligning such rules to the rules applicable to “internal” conflicts of jurisdiction would lack any reasonable justification and would, ironically, make the goals of the reform — the simplification and acceleration of civil proceedings — harder to achieve.