ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
10.3 Procedure for Taking an Appeal The appeal against a judgment delivered by a court of first instance must be brought by a writ of summons within: • 30 days after service of the judgment; or • six months from the publication of the judgment. The party against whom the appeal is brought must enter an appearance twenty days before the first hear- ing and, if it also wants to appeal the judgment, it must submit a cross-appeal. The decision stage may be: • simplified (if the appeal is inadmissible, manifestly ill-founded or manifestly well-grounded or when it is appropriate because of the reduced complexity of the case or the urgency of its decision), in which case the investigating judge sets a hearing for the oral discussion before him/her; or • ordinary (if the requirements for the simplified one do not apply), in which case the investigating judge sets a hearing before him/her to refer the case for decision to the full bench, assigning the parties a deadline for the submission of three additional writ - ten briefs. The judgment delivered by the appeal court replaces the judgment delivered by the court of first instance. 10.4 Issues Considered by the Appeal Court at an Appeal A court of appeal carries out a new examination of the merits of a case but within the limits of the parts of the judgment appealed by the appellant (and cross- appellant, if any). The judgment delivered by the court of appeal replaces the one delivered by the court of first instance. The appellant may not submit new claims and objec- tions, or submit new evidence and file new docu- ments, unless he/she proves that he/she could not submit or produce them in the proceedings at first instance for reasons not attributable to him/her.
10.5 Court-Imposed Conditions on Granting an Appeal Courts cannot impose conditions on granting an appeal. 10.6 Powers of the Appellate Court After an Appeal Hearing A court of appeal may: • issue a judgment on the merits, confirming or modifying, in whole or in part, the first instance decision; or • not decide on the merits and refer the parties back to the court of first instance if: (a) it declares the service of the summons null and void; (b) it finds that a party was not joined in the pro- ceedings at first instance or that a party was wrongly excluded from the proceedings at first instance; or (c) it declares the first instance judgment null and void for failure to sign the judgment. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Each party shall provisionally bear its own costs of litigation, such as court fees, expenses and attorney’s fees. In the judgment, the judge must order the losing party to reimburse the prevailing party for the costs of the litigation. In exceptional cases, the judge can derogate from this principle and reduce or exclude the losing party’s obligation to reimburse the prevailing party’s costs. The amount of costs that the losing party is ordered to reimburse is determined by the law and does not equal (and is generally lower than) the actual costs of litigation borne by the prevailing party. The order to pay costs is contained in the judgment of the court, so it can be challenged by ordinary means of appeal.
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