ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
10.6 Powers of the Appellate Court After an Appeal Hearing A court of appeal may: • issue a judgment on the merits, confirm- ing 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 proceedings 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 los- ing 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 prevail- ing party.
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 investi- gating judge sets a hearing before him/her to refer the case for decision to the full bench, assigning the parties a deadline for the sub- mission of three additional written 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 appel- lant (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 objections, or submit new evidence and file new documents, unless he/she proves that he/she could not submit or produce them in the pro- ceedings at first instance for reasons not attrib- utable to him/her. 10.5 Court-Imposed Conditions on Granting an Appeal Courts cannot impose conditions on granting an appeal.
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