On 16 November 2017, the Joint Sections of the Italian Supreme Court issued a highly anticipated judgment on the application of the Art. 342 od the Italian Code of Civil Procedure, as amended by Legislative Decree dated 22 June 2012 n. 83 (“Article 342”), concerning the form of the Appeal brief.
Indeed, the new text of Article 342 (“the grounds of the appeal shall provide, under penalty of inadmissibility: 1) the indication of […] the amendments requested to the analysis of the facts made by the judge of first instance”) has been interpreted by a number of authors and case law as if it would have imposed on the Appellant the additional burden, under penalty of rejection of the challenge, to literally draft a “judgment alternative to the decision challenged”.
The Joint Sections, in line with previous other decisions of the Supreme Court, stated that new text of the Article 342 does not set additional formal requirements. Therefore, the Appeal can be decided on the merit upon condition that the Appeal brief “clearly clarifies the questions and the points of the judgment challenged and states the related grounds of challenge”. In particular, the Appeal brief shall contain a section devoted to challenge and rebut the legal arguments developed by the judgment challenged.
On the basis of the above, the Joint Sections confirmed that the proceeding of appeal has the function of reviewing on the merit the decision rendered in the first instance phase (in latin parlance “revisio prioris instantiae”). This means that the Court of Appeals shall exercise all the powers proper to a proceeding on the merit, including the powers related to the evidentiary phase and taking of evidence.
In this way, after a systematic overview of the reform of the Appeal proceeding made on 2012, the Supreme Court addressed a clear message to the Panels of the Civil Court of Appeals requesting an interpretation of procedural burden which could allow as much as possible a decision on the merit in compliance with the right of access to justice of the parties.