Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. This request for a preliminary ruling concerns the interpretation of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters. (2)

2. The background to the questions referred for a preliminary ruling is formed by the Italian provisions introduced to implement that directive, (3) which provide for a mediation procedure in certain civil cases. Under Italian law, the requirement to use mediation was a precondition for bringing subsequent legal proceedings in those cases. Italian law also contains provisions on the effects of mediation on subsequent judicial proceedings. Thus, for example, a judge could infer evidence against a party who had failed to participate in compulsory mediation.

3. The referring court wondered whether such a system was consistent with European Union law and with the Mediation Directive in particular.

4. However, after the conclusion of the written procedure before the Court, the Italian Constitutional Court ruled that numerous provisions of DL 28/2010 were unconstitutional, including the provision requiring a mediation procedure to be conducted. This raises the question whether the request for a preliminary ruling is now no longer relevant.

II – Legal context

A – EU law

5. The relevant EU law context in this case is provided by Directive 2008/52. The scope of the directive is defined in Article 1, which provides inter alia:

‘(1) The objective of this Directive is to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.

…’

6. Article 3 of the Mediation Directive provides under the heading ‘Definitions’:

‘For the purposes of this Directive the following definitions shall apply:

(a) “Mediation” means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.

It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question.

...’

B – Italian law

7. The Mediation Directive was implemented in Italian law by DL 28/2010. (4) Article 5 of DL 28/2010 provides that mediation is a precondition for bringing legal proceedings in certain cases. Article 5(1) reads as follows:

‘(1) Any person who intends to bring legal proceedings concerning a dispute over joint ownership, property rights, division, inheritance rights, family contracts, leases, loans-for-use, leases of businesses, compensation for damage resulting from vehicle and boat traffic, medical liability and defamation through the press and other media, or insurance, banking and financial contracts, shall be required, as a preliminary step, to use mediation within the meaning of the present decree. The carrying out of mediation shall be a precondition for bringing legal proceedings. … Where a court finds that mediation has been initiated but not concluded, it shall fix a further hearing after the period referred to in Article 6 has expired. It shall do likewise where mediation has not been initiated, granting the parties, at the same time, a period of 15 days within which to submit the request for mediation. ...’

8. Article 6 of DL 28/2010 provides, with respect to the duration of the mediation procedure, as follows:

‘(1) A mediation procedure shall last no longer than four months. …’

9. Article 8(5) provides, with respect to procedure:

‘(5) Where a party fails without valid reason to participate in mediation, a court may infer evidence, within the meaning of the second sentence of Article 116 of the Code of Civil Procedure [Codice di procedura civile], in subsequent legal proceedings. The court shall order any party who, in the cases mentioned in Article 5, has failed without valid reason to participate in mediation to pay to the State treasury a sum equal to the single payment payable in respect of the proceedings.’

10. Article 11 provides, with respect to conciliation:

‘(1) Where an amicable settlement has been reached, the mediator shall draw up a record to which the text of the agreement shall be annexed. Where no agreement is reached, the mediator may draw up a proposal for conciliation. In any event, the mediator shall draw up a proposal for conciliation where the parties make a joint request for him to do so at any point during the mediation process. Before drawing up the proposal, the mediator shall inform the parties of the possible consequences referred to in Article 13.

(2) The proposal for conciliation shall be communicated to the parties in writing. The parties shall within seven days inform the mediator in writing of whether they accept or reject the proposal. Failure to reply within that time will be construed as a rejection of the proposal. Unless otherwise agreed by the parties, the proposal may contain no reference to statements made or information obtained in the course of the mediation.

…

(4) Where the attempt at conciliation is unsuccessful, the mediator shall draw up a report setting out the proposal, which shall be signed by the parties and by the mediator, who shall certify the signatures of the parties so signing, or their inability to sign. The mediator shall also mention in his report the failure of any party to participate in the mediation.

(5) The mediator’s report shall be filed at the secretariat of the relevant mediation body, which shall provide a copy to the parties on request.’

11. Article 13 provides, with respect to the costs of the procedure:

‘(1) Where the order made in the judgment concluding the proceedings corresponds entirely to the content of the proposal, the court shall disallow recovery of the costs incurred by the successful party who has rejected the proposal, in respect of the period following the drawing up of the proposal, and order that party to reimburse the costs incurred by the unsuccessful party in respect of that period and also to pay to the State Treasury a further sum equal to the single payment. The provisions of Articles 92 and 96 of the Code of Civil Procedure apply. The provisions of this paragraph shall also apply to the remuneration paid to the mediator and to the fees of any expert as referred to in Article 8(4).

(2) Where the order made in the judgment concluding the proceedings does not correspond entirely to the content of the proposal, the court may, if there are serious and exceptional reasons for doing so, none the less disallow recovery of the costs incurred by the successful party in respect of the remuneration paid to the mediator and the fees of any expert as referred to in Article 8(4) ...’

C – The Italian Constitutional Court ruling

12. On 24 October 2012, the Italian Constitutional Court delivered Judgment No 272/2012, ruling that parts of DL 28/2010 were unconstitutional, in particular Article 5(1), Article 8(5), and Article 13 (with the exception of the reference in that provision to Articles 92 and 96 of the Italian Code of Civil Procedure which, however, is not of interest for the purposes of the present case).

III – Facts of the case and questions referred for a preliminary ruling

13. The action in the main proceedings concerns a claim for compensation based on tort. Mr Ciro Di Donna’s motor vehicle was damaged on SIMSA Srl (5) premises by a forklift truck belonging to that company. SIMSA does not dispute the facts of the accident or its liability but considers that the compensation should be covered by its insurance, so no payment has as yet been made to Mr Di Donna. Since it was impossible to sue the insurance company directly, Mr Di Donna brought an action against SIMSA seeking payment of damages. SIMSA requested that the first hearing be adjourned to enable its insurance company to be joined in the proceedings.

14. The referring court explains that, in accordance with Article 5(1) of DL 28/2010, a mediation procedure between SIMSA and the insurance company must take place before the company is joined in the proceedings. The question therefore arises of the period to be taken into account for the fixing of the first hearing – only the period of 45 days allowed under Italian civil procedure in the event of joinder in the proceedings, or also the period of four months prescribed in Article 6(1) of DL 28/2010 as the maximum duration of a mediation procedure?

15. The parties complain of the excessive prolongation of the time it will take to conclude the proceedings. At the request of SIMSA, which doubts whether DL 28/2010 is consistent with the Mediation Directive, the Giudice di pace di Mercato San Severino therefore referred the following questions to the Court:

‘Do Articles 6 and 13 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, Article 47 of the Charter of Fundamental Rights of the European Union …, Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, the general European Union law principle of effective judicial protection and, in general, European Union law as a whole preclude the introduction in a Member State of the European Union of a set of rules [such as] Legislative Decree No 28/2010 and Ministerial Decree No 180/2010, as amended by Ministerial Decree No 145/2011, which provide that:

1. a court hearing subsequent legal proceedings may infer evidence against a party who, without valid reason, has failed to participate in compulsory mediation;

2. where legal proceedings brought after the rejection of a conciliation proposal are concluded by a judgment in precisely the same terms as those of the rejected proposal, the court must disallow recovery of the costs sustained by a successful party who rejected the conciliation proposal in respect of the period following the making of the proposal and must order that party to pay the costs of the unsuccessful party in respect of the same period and to make a further payment to the State Treasury in the same amount as that already paid in respect of fees (single payment);

3. where there are serious and exceptional reasons, a court may disallow recovery of the costs incurred by the successful party in respect of the remuneration paid to the mediator and the fees of any expert, even where the judgment concluding legal proceedings is not in exactly the same terms as those of the conciliation proposal;

4. the court must order any party who has failed without valid reason to participate in mediation to pay to the State Treasury a sum equal to the single payment payable in respect of the proceedings;

5. the mediator may, or must, make a proposal for conciliation even in the absence of any agreement between the parties and even where the parties fail to participate in mediation;

6. the period within which the attempt at mediation must be completed may be up to four months;

7. an action may be proceeded with, even after expiry of the period of four months from the commencement of the mediation procedure, only after a report confirming that no agreement has been reached has been obtained from the secretariat of the mediation body concerned, drafted by the mediator and setting out the proposal that has been rejected;

8. there may be more than one attempt at mediation – and the period allowed for resolving the dispute will be multiplied accordingly – whenever a new application is legitimately made in the course of legal proceedings that have, in the meantime, been instituted;

9. the costs of compulsory mediation are at least twice those of the legal proceedings that mediation is designed to avoid, a disparity which increases exponentially as the amount involved in the case increases (to such an extent that the costs of mediation may reach more than six times those of legal proceedings) and the complexity of the case increases (such as to require the appointment of an expert, paid by the parties to the mediation, to assist the mediator in disputes that call for specific technical knowledge, even though any technical report prepared by the expert and the information he has obtained may not be used in any subsequent legal proceedings)?’

IV – Procedure before the Court

16. After the conclusion of the written procedure before the Court, the Italian Constitutional Court delivered Judgment No 272/2012, ruling that some provisions of DL 28/2010 were unconstitutional, including the provision requiring a mediation procedure to be conducted before legal proceedings are brought.

17. Against that background, the Court, by letter of 14 December 2012, asked the referring court to explain how the Italian Constitutional Court judgment affected the request for a preliminary ruling and the proceedings before the national court. The referring court replied, in a statement made on 17 January 2013, that it was still interested in obtaining an answer to the questions from the Court. It had nothing more to say about the effects of the Italian Constitutional Court judgment or about the reasons for maintaining its request.

18. The Italian, French and Austrian Governments and the European Commission participated in the proceedings before the Court.

V – Appraisal

19. There are doubts as to the admissibility of the request for a preliminary ruling. The Commission has plausibly explained that some of the questions are hypothetical. Thus, it is not apparent how far the detailed arrangements of a mediation procedure, with respect to costs for example, are of interest for the purpose of the decision in the case at issue in the main proceedings. In response to an enquiry from the Court about the relevance of the questions for the purpose of the decision, the referring court merely stated that it had to rule on the fixing of the hearing and to decide in that connection whether the duration of the mediation procedure was to be taken into account in calculating the period.

20. However, the question whether the request for a preliminary ruling was therefore inadmissible from the outset – at least in part – can remain open in the present case. For the information at the Court’s disposal shows that, since the delivery of the Italian Constitutional Court judgment at least, the questions referred for a preliminary ruling have become hypothetical.

21. It is settled case-law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 267 TFEU it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question s which it submits to the Court. (6) Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (7)

22. Nevertheless, in exceptional circumstances, the Court should examine the conditions in which the case was referred to it by the national court. (8) For the spirit of cooperation in which the preliminary ruling procedure is to be conducted requires that the referring court, for its part, acts with respect for the function of the Court which is to contribute to the administration of justice in the Member States, not to deliver advisory opinions on general or hypothetical questions. (9)

23. In response to an enquiry, the referring court indicated in general terms that it was still interested in receiving an answer from the Court to its request for a preliminary ruling. However, it did not explain why the questions submitted for a preliminary ruling should continue to be relevant for the purpose of the decision in the main proceedings after the Italian Constitutional Court judgment. The information at the Court’s disposal shows, on the contrary, that the questions submitted are now merely hypothetical. For either they refer directly to provisions of DL 28/2010 which have been declared unconstitutional, or they are no longer of interest for the purpose of the decision in the main proceedings since the requirement to conduct a mediation procedure before bringing legal proceedings has ceased to apply. There is no indication that the rules in question may continue to be relevant for the purpose of the main proceedings despite the fact that they have been declared unconstitutional. Accordingly, a similar request for a preliminary ruling, which was submitted by another Italian court and which also concerned the interpretation of the Mediation Directive against the background of the Italian provisions that have now been annulled by the Constitutional Court, was withdrawn. (10)

Consideration of the first four questions

24. By the first four questions, the referring court seeks to ascertain whether certain measures that the court may take in accordance with DL 28/2010 are consistent with the Mediation Directive and/or with the other provisions of EU law. The questions in this connection refer exclusively to provisions which have been declared unconstitutional. The question whether the measures mentioned in the first four questions are consistent with EU law is therefore purely hypothetical and there is no longer any need for the Court to answer it.

25. Thus the first question concerns the possibility that a national court, in legal proceedings following mediation, may infer evidence against a party if that party, without valid reason, has failed to participate in a compulsory mediation procedure. That possibility was provided for in Article 8(5)(1) of DL 28/2010, which has been declared unconstitutional.

26. The second question concerns Article 13(1) of DL 28/2010, which provided that the court responsible for judging the case may order the successful party to pay the costs of the proceedings if that party has rejected a proposal from the mediator in the same terms as the concluding judgment of the court. However, Article 13(1) has also been declared unconstitutional.

27. The third question seeks to ascertain whether it is consistent with EU law for a national court, where there are serious and exceptional reasons, to disallow recovery of the costs incurred by the successful party in respect of the remuneration paid to the mediator and the fees of any expert, even though the judgment concluding the legal proceedings is not in exactly the same terms as those of the mediator’s proposal. This was provided for in Article 13(2) of DL 28/2010, which has also been declared unconstitutional.

28. The subject matter of the fourth question has also ceased to apply. It concerns the rule contained in Article 8(5)(2) of DL 28/2010, which has been declared unconstitutional and which provided that any party who has failed without valid reason to participate in the mediation procedure must pay to the State treasury a sum equal to the single payment payable in respect of the proceedings.

Consideration of the fifth to ninth questions

29. The answers to the remaining questions are likewise no longer of interest for the purpose of the decision in the main proceedings. For the last five questions concern the detailed arrangements for the conduct and conclusion of a mediation procedure, and the duration and costs of the procedure, the questions being based on the assumption of a compulsory mediation procedure. It is not apparent, however, that a mediation procedure will actually take place in the present case.

30. Since Article 5(1) of DL 28/2010 is unconstitutional, the parties are no longer required to participate in mediation. Nor, as the request for a preliminary ruling explains, have they at present any interest in conducting such a procedure on a voluntary basis. On the contrary, they complain that mediation would entail an excessive prolongation of the time it will take to conclude the proceedings. It is clear from the information at the Court’s disposal that a mediation procedure was only to take place because it was incumbent on the parties under Italian law.

31. Thus the Court is now concerned in these proceedings with a request for a preliminary ruling which, as a result of a change in the legal circumstances, has become devoid of purpose. The Court should therefore state that there is no longer any need to answer the questions referred for a preliminary ruling. That would take into account the fact that the questions were not inadmissible from the outset but became irrelevant only after the request for a preliminary ruling was submitted, the referring court deciding however not to withdraw them. (11)

VI – Conclusion

32. In the light of the foregoing considerations, I propose that the Court should rule on the questions referred to it by the Giudice di pace di Mercato San Severino as follows:

There is no longer any need to answer the questions referred for a preliminary ruling.

(1) .

(2) – OJ 2008 L 136, p. 3; ‘the Mediation Directive’.

(3) – Decreto legislativo (Legislative Decree) No 28 of 4 March 2010 implementing Article 60 of Law No 69 of 18 June 2009 on mediation in civil and commercial matters (‘DL 28/2010’).

(4) – Cited in footnote 3.

(5) – ‘SIMSA’.

(6) – Judgments in Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-544/07 Rüffler [2009] ECR I-3389, paragraph 36; Case C-314/08 Filipiak [2009] ECR I-11049, paragraph 40; Case C-310/10 Agafiţei and Others [2011] ECR I-5989, paragraph 25; and Case C-416/10 Križan and Others [2013] ECR, paragraph 53.

(7) – Judgments in PreussenElektra , paragraph 39; Rüffler , paragraph 38; Filipiak , paragraph 42; Agafiţei and Others , paragraph 27; and Križan and Others , paragraph 54.

(8) – Judgments in PreussenElektra , paragraph 39; Rüffler , paragraph 37; and Filipiak , paragraph 41.

(9) – Judgments in Case C-225/02 García Blanco [2005] ECR I-523, paragraph 28; Case C-409/06 Winner Wetten [2010] ECR I-8015, paragraph 38; and Case C-617/10 Åkerberg Fransson [2013] ECR, paragraph 42.

(10) – Order removing Case C-464/11 Galioto from the register [2013] ECR.

(11) – See, to this effect, my Opinion in Case C-225/02 García Blanco [2005] ECR I-523, point 36.