I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK

Italy is a civil law country. The law is not created by court decisions, as in common law countries, but through legislative statutes.

Disputes on civil and commercial matters are resolved by either state courts of law or private arbitrators.

The state courts that have jurisdiction over civil and commercial disputes are the following: courts of first instance, courts of appeal and the Supreme Court.

i Courts of first instance

There is one justice of the peace and one tribunal in all major municipalities.

The justice of the peace is a single honorary judge whose competence is limited to specific disputes, including disputes relating to moveable goods for a maximum value of €5,000.

Tribunals, in addition to deciding on appeals against the decisions of justices of the peace, rule on all civil and commercial disputes that fall outside the competence of justices of the peace. Tribunals can be composed of one or three ordinary magistrates, depending on the nature of the dispute.

Certain tribunals have specialised divisions that deal with specific matters (such as employment, bankruptcy, corporate and intellectual property).

ii Courts of appeal

There are 26 courts of appeal in Italy. Courts of appeal are composed of three ordinary magistrates and rule on appeals against decisions of the first instance court and arbitral awards.

Generally, only the claims, objections and evidence submitted by the parties before the first instance tribunal are admissible in appeal proceedings.

If, following appeal, the decision of a tribunal is annulled, the court of appeal also decides on the merits of the dispute and its decision replaces the annulled decision. Particular rules apply in this respect where the court annuls an arbitral award.

iii Supreme Court

There is one Supreme Court in Italy, in Rome. The grounds for recourse to the Supreme Court are strictly established by Article 360 of the Code of Civil Procedure (CCP).

II THE YEAR IN REVIEW

i Supreme Court, 16 May 2016, No. 9978

Italian case law has always considered punitive damages contrary to public policy for the purpose of recognition and enforcement of foreign judgements and arbitral awards. However, in the above-mentioned order, the Court ruled that a new evaluation of this important issue was needed and has thus referred the matter to the Joint Divisions of the Court.

ii Law No. 119 of 30 June 2016

As part of the reforms implemented by the government in recent years to make the Italian judicial system more efficient, Law Decree 59/2016 amended certain CCP rules on enforcement proceedings with the aim of speeding up the proceedings.

III COURT PROCEDURE

i Overview of court procedure

The CCP establishes the general rules that govern the first, second and third instance proceedings before state courts relating to civil and commercial disputes. Moreover, it governs enforcement proceedings and special proceedings such as summary proceedings seeking interim protective measures or payment injunctions. It also establishes the general rules that govern arbitration (see Section VI, infra).

The CCP provides for three paradigmatic categories of court procedures: ordinary proceedings, summary proceedings and labour proceedings.

However, there are other laws that govern proceedings before state courts that relate to particular disputes on civil and commercial matters, such as bankruptcy (Royal Decree No. 267/1942), divorce (Law No. 898/1970), and intellectual property (Legislative Decree No. 30/2005).

ii Procedures and time frames
Ordinary proceedings

Ordinary proceedings before the courts of first instance begin with a writ of summons served by the claimant.2

Should the defendant intend to raise counterclaims or objections that only the parties can raise, or call third parties, the defendant must file a statement of defence at least 20 days before the first hearing. If not, the defendant can file its statement of defence on the hearing date.

At the first hearing, at the request of one of the parties, the court must authorise both parties to simultaneously file three subsequent briefs within strict deadlines (30 days, 30 days and 20 days). In these briefs, the parties must better specify their claims and objections and offer further evidence

The subsequent hearings are devoted to taking evidence, which the court admits at its discretion.

When the court holds that no further evidence needs to be taken, it schedules a hearing at which the parties must state their final conclusions. The parties must then file two conclusive briefs within 60 days and 20 days of the hearing date. However, different rules may apply when the court is composed of a single judge.

Generally, the court issues decisions within 30 or 60 days from the date of filing the second final brief, depending on whether the court is composed of one or three judges.

Summary proceedings

This proceeding starts with an application filed directly with the judge, who then fixes the hearing for the parties’ appearance. After having been served with the notice of application and the judge’s order fixing the hearing, the defendant – 10 days before the hearing – lodges a written reply. During the hearing, if the judge concludes that the parties’ defences can be examined summarily, he or she proceeds in the most appropriate manner and issues an order, which has the same effect as a judgment.

Interim measures

The CCP allows a court to grant interim measures in favour of one party, prior to or pending a trial, on one party’s application.

The subject of the interim protective measures varies from case to case. Protective measures range from an order to refrain from interfering with the applicant’s right to freely dispose of its properties, to an order to refrain from calling a first-demand performance bond issued by the applicant’s bank, to a temporary seizure of goods or property held by the defendant, etc.

As a general rule, interim protective measures can only be granted if the applicant provides the court with clear evidence of the existence of both the right that the measure is aimed at protecting and the serious and actual risk that the right would be harmed if not temporarily protected pending the trial on the merits. Protective measures can be granted ex parte if the circumstances so dictate, subject to confirmation, revision or annulment at a later stage, after a hearing, based on the defences of the other party.

iii Class actions

In Italy, consumer class actions are governed by Article 140 bis of Legislative Decree No. 206/2005 (the Consumer Code).3 This article entered into force on 1 January 2010 and applies to allegedly unlawful activities carried out after 15 August 2009.

Consumers can bring class actions against companies for damage caused by breach of contract, by product liability or by unfair and restrictive business practices. Only consumers have the right to appear and be heard in court, but associations and committees of which they are members may represent the class (provided that they demonstrate their ability to adequately represent the interests of each class member).

Class actions must be brought before the civil court of the capital of the region of the company’s registered office; however, certain regional courts have jurisdiction over smaller regions.4 At the first hearing, the court decides and issues an order on admissibility. The order may be challenged before the court of appeal within 30 days from its disclosure or notification (whichever occurs first).5 The order also sets out the procedure for the public notice and the requirements, including the deadline, for joining the class action (consumers that join the class need not appoint legal counsel).

A class action is admissible only if multiple consumer rights are affected and the asserted rights are homogeneous. A class action is inadmissible if the court holds that:

  • a it is clearly ungrounded;
  • b a conflict of interest exists;
  • c the asserted rights are not homogeneous; or
  • d the class representative appears unable to adequately represent the interests of all the class members.

After the admissibility stage, the proceedings continue in accordance with the standard procedural rules and the instructions in the admissibility order.

If the court finds in favour of the class, it either orders the losing party ex aequo et bono to pay the amounts due to the claimants or establishes the criteria for calculating the amounts.

The class action legal framework is based on an ‘opt-in’ mechanism, meaning that the court’s ruling is binding only on the parties that joined the class action. Non-joiners may file individual claims, but a class action relating to the same facts and brought against the same parties as in another class action may not be filed after the deadline to join the other class action.

Very few class actions have progressed beyond the admissibility stage since class actions were introduced in Italy. However, in the past two years, two courts of appeal have overturned two first-instance rulings that had dismissed as ungrounded the claims against two major automobile manufacturers (unfair and restrictive business practices by misrepresenting the quantity of emissions their vehicles produced).6

Another type of class action (governed by Legislative Decree No. 198 of 20 December 2009) may be brought against the public administration and public services providers. This type of class action does not seek to obtain damages, but rather to restore the correct performance of a function or a service to the public, and thereby enhance the quality of the public administration.

iv Representation in proceedings

Parties, both individuals and entities, must be represented by a qualified lawyer before state civil courts. However, an individual may stand in trial without counsel before the justice of the peace, provided that he or she is at least 18 years old and is not legally incapacitated, and the value of the case does not exceed €1,100.

v Service out of the jurisdiction

The service from Italy to a Member State of the European Union of judicial and extrajudicial documents relating to civil and commercial matters is governed by EC Regulation No. 1393/2007.

With regard to the service of documents to a non-Member State, Italy has ratified the Hague Convention of 15 November 1965.

If the state of destination has not ratified the 1965 Hague Convention, but a bilateral treaty is in place, the service method established by the treaty shall apply. In the absence of a bilateral treaty, the service shall be made according to Articles 37 and 77 of Legislative Decree No. 71/2011 (i.e., transmission from and to consular authorities) or, if not possible, according to Article 142 CCP (i.e., transmission by the court’s clerk of two copies, one by mail directly to the addressee and one through the office of the Public Attorney to the Ministry of Foreign Affairs, which will then deliver it to the addressee).

vi Enforcement of foreign judgments

If the judgment has been rendered by the court of a Member State of the European Union, EU Regulation No. 1215/2012 applies and no declaration of enforceability is required.

If the judgment has been rendered by the court of a non-EU state, it will be recognised and enforced according to the specific bilateral treaty between Italy and that state. In its absence, it will be automatically recognised in Italy, under Article 64 et seq. of Law No. 218/1995 (though the counterparty has the right to raise an opposition) if specific conditions

are met:

  • a the court that issued the decision had jurisdiction according to Italian rules on jurisdiction;
  • b the defendant was served with the writ of summons according to the lex fori and the principle of due process has been complied with;
  • c the judgment has become res judicata according to the lex fori;
  • d the judgment does not contradict a judgment issued by an Italian court that has become res judicata;
  • e there are no proceedings pending before Italian courts between the same parties and on the same dispute that were commenced prior to the foreign proceedings; and
  • f the judgment is not contrary to public policy.
vii Assistance to foreign courts

The assistance by Italian courts to courts of another Member State of the European Union (other than Denmark) in the taking of evidence in civil or commercial matters is governed by EC Regulation No. 1206/2001.

The assistance by Italian courts to courts of another state not a member of the European Union shall take place according to the specific bilateral treaty between Italy and that state. In its absence, it shall take place in accordance with the provisions of Law No. 218/1995, according to which, both a party in a foreign trial and the court before which the trial is held may request the assistance of the Italian courts in the taking of evidence in Italy.

viii Access to court files

The parties and their officially appointed counsel may access the court file at any time.

Third persons may not access the court files. However, unless otherwise provided, the court must grant permission to third parties to make copies of acts or documents contained in the file (Articles 743–744 CCP).

Courts’ final judgments are public.

ix Litigation funding

The parties bear litigation costs. Each party must advance the relevant fees. However, as a general rule, the court shall order the losing party to refund the legal expenses borne by the counterparty, unless either both the parties have partially lost or the question of law of the case was exceptionally new or there was an overruling or the expenses borne by the winning party were exorbitant or unnecessary.

Litigation can be funded by a third party; however, this is not common in Italy.

IV LEGAL PRACTICE

i Conflicts of interest and Chinese walls

As of 15 December 2014, conflicts of interest are regulated by a professional code of conduct (the Code). The relevant provisions are binding on Italian lawyers and foreign lawyers working in Italy. The sanctions are provided for by the Code and are meted out in proportion to the seriousness of the infringement, ranging from a simple warning to disbarment.

Lawyers must carry out their professional activity with loyalty. Any behaviour that can be construed as consciously acting against a client’s interest is cause for disciplinary action.7

With some specific exceptions, a lawyer has the right and the duty to not divulge, and to keep confidential, the professional activities performed on behalf of a client, as well as all information received from a client or of which he or she has become aware as a result of an assignment. The duty of confidentiality also applies to former clients and persons who requested the lawyer’s services without the lawyer accepting the assignment.8

Lawyers must refrain from performing any professional activities in favour of a client if doing so would or may potentially cause a conflict with the interests of another client, or would interfere with the performance of another assignment, even a non-professional one. A conflict of interest would also exist if, in carrying out a new assignment, the lawyer should disclose information concerning another client, or if the cognisance of a client’s business could unfairly favour another client, or if the carrying out of a former assignment could limit the lawyer’s independence in performing a new assignment.9

If the lawyer acts in situations of conflicts of interest even after having obtained clear and conscious consent from every client, he or she will infringe the ethical rule.

Accepting an assignment against a former client is only possible two years after having completed the former client’s assignment, and provided that the object of the new assignment is unrelated. Furthermore, the lawyer cannot use information acquired on account of the preceding assignment.10

Article 24(5) of the Code establishes that the lawyer’s duty to refrain from acting in situations of actual or potential conflict of interest applies also where the parties with conflicting interests consult two different lawyers belonging to the same firm or partnership, or working in the same office.

Chinese walls are possible and frequent, but do not necessarily excuse lawyers from complying with their duty to refrain from acting in situations of actual or potential conflicts of interest. Even where information barriers are put in place, every lawyer should decline an assignment in cases of existing or potential conflict, if these barriers are insufficient to exclude the conflict.

ii Money laundering, proceeds of crime and funds related to terrorism

Legislative Decree No. 231 of 21 November 2007 enacts European Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, and binds lawyers to strict obligations regarding (1) due diligence measures concerning clients, when participating in financial or corporate transactions, including when providing tax advice; and (2) reporting to authorities any suspect transactions.

Furthermore, by virtue of deontological rules, a lawyer must not accept any assignment from a potential client when he or she can reasonably assume that professional services would be connected with an illegal business or transaction, and must not receive from or manage any funds of a client where the client cannot be properly identified.

Lawyers must record and keep all documents and information relating to their client’s transactions for 10 years after the business relationship with the client has ended.

As regards the reporting obligations, on their own initiative lawyers must promptly inform the competent authority where they know, suspect or have reasonable grounds to suspect that money laundering or terrorist financing is being or has been committed or attempted. However, pursuant to Article 12(2) of Legislative Decree No. 231/2007, this obligation does not apply when the information is acquired by lawyers in relation to any judicial proceedings, or in the course of ascertaining the legal position of a client; therefore, legal advice remains subject to the obligation of professional secrecy.

iii Data protection

Processing of personal data in Italy is regulated by Legislative Decree No. 196 of 30 June 2003 (the Data Protection Code), which consolidates all laws and regulations relating to data protection.

The Data Protection Code sets out standard requirements, among which are:

  • a the provision of an information notice to the data subject; and
  • b the data subject’s consent.

However, the data subject’s consent is not required, inter alia, where the relevant processing activity is aimed at investigating, claiming for or defending a right in a legal action.11 Therefore, since legal practice is generally aimed at defending a right in a legal action, these data processing activities can be carried out without collecting the prior data subject’s consent (i.e., either a client or a third party).12 Indeed, under this exemption, lawyers are generally allowed to conduct defensive investigations on strictly confidential personal data as, for instance, in case of audit procedures on professional email folders or computers aimed at acquiring documentary evidence.

On the same ground, sharing of personal data between lawyers, either nationally or internationally,13 is allowed as long as such activities fall within the ‘defensive’ exception above.

Finally, the admissibility in legal proceedings of personal data processed in breach of the data protection rules must be assessed under the CCP only (not the Data Protection Code), as Article 160, paragraph 6 of the Data Protection Code expressly states. Therefore, the breach of the Data Protection Code does not lead to the exclusion of the evidence from the proceedings if such evidence is genuine, can be verified by the court and is relevant to the matter.14

V DOCUMENTS AND THE PROTECTION OF PRIVILEGE

i Privilege

The CCP contains no rules relating to correspondence among counsel and parties.

According to Articles 210 and 118 CCP, the court may order a party to produce documents, or may order the inspection of specific places if it deems it relevant for the purpose of deciding the case. However, the court may not uphold the request by one party to order the disclosure of documents if this may cause unjustified harm to the other party or violate a professional secret.

Article 48 of the Code establishes that, unless otherwise provided, the correspondence between the parties’ counsel expressly qualified as confidential, or regarding the negotiation of an amicable settlement, cannot be filed nor referred to in the court proceedings.

The Code does not apply to in-house counsel. If the in-house counsel is registered with the Italian Association of In-House Lawyers (AIGI), he or she must abide by the rules of conduct provided by the AIGI’s code. Although this does not contain specific provisions regarding confidential correspondence, it establishes in its Article 7 that in-house counsel must keep confidential all the information of which they become aware by reason of their professional activity, even after termination of their employment.

ii Production of documents in civil litigation

As a general rule, the burden of proof lies on the party asserting a right or entitlement (under Article 2697 of the Italian Civil Code).

According to Article 115 CCP, the court might reach a decision not only on the basis of the evidence filed by the parties but also on the basis of the uncontested facts and might even rely on factual elements that are common knowledge.

In the Italian civil judicial system, the key role in the taking of evidence is played by the parties, as they may produce all the documents that prove the facts on which their claims rely, without any prior authorisation by the judge.

With certain exceptions (e.g., notarised deeds), the court can evaluate any evidence at its cautious discretion,15 provided that specific motivations of such evaluation are given in the judgment. The notarised deeds, unless proven to be false, conclusively prove the declarations of the parties set out therein and the facts that the notary declares to have occurred in his or her presence.

Email and electronic documents are considered as signed documents if they bear the electronic signature of their author in accordance with Legislative Decree No. 82/2005.

According to Articles 210 et seq. CCP, subject to certain conditions, the court may order a party or a third person to produce a document that has not been filed.16

VI ALTERNATIVES TO COURT LITIGATION

i Overview of alternative dispute mechanisms

The law allows civil or commercial disputes to be resolved either directly by the parties (e.g., by a settlement agreement), or by the parties assisted by a third person deprived of decision-making authority but empowered to suggest possible solutions (e.g., mediation) or, if the type of dispute allows it, by a third party entrusted by the parties with decision-making authority (i.e., arbitration).

ii Arbitration
The rules in general

Arbitration on civil and commercial disputes is very common in Italy. Although arbitration is faster and ensures a high level of technical expertise and confidentiality, court proceedings are often preferred as costs can be lower.

The arbitrator’s decision shall be legally binding on the parties and is as enforceable as a state judge’s decision.

The general rules governing arbitration are set out in Articles 806 to 840 CCP. Specific rules are established by Legislative Decree No. 5/2003 for corporate matters, and by Legislative Decree No. 50/2016 for disputes arising out of public procurement contracts.

The arbitration agreement

A dispute may only be referred to arbitration through a specific agreement of the parties (i.e., the arbitration agreement). To be valid and effective, the arbitration agreement must be in writing (not necessarily in a single document), and the concerned parties must have the legal capacity to enter into it.17

An arbitration clause may also be set out in a contract.18

With the exception of specific cases provided by the law, an arbitrator cannot order interim measures. 19 Consequently, only the state judge may grant such measures prior to or pending the arbitration proceedings.20

Arbitrable disputes

The dispute may be referred to arbitration only when it concerns rights of the parties deriving from a relationship of civil or commercial nature that the parties can dispose of,21 otherwise, the dispute is not arbitrable, and the jurisdiction of the state courts prevails.

In addition, other specific limits are provided for by the CCP and other laws. For example, individual employment disputes are arbitrable, but only if the collective employment contract or the law so provide. Disputes concerning bankruptcy and other insolvency proceedings are subject to the exclusive jurisdiction of the state courts.

Domestic and foreign arbitration

If the arbitration is domestic, the support and verification measures regarding the arbitration will fall within the jurisdiction of the Italian judiciary: Italian judges have jurisdiction to appoint or replace arbitrators,22 to decide on challenges against arbitrators,23 to issue interim measures and to grant the exequatur of the arbitral award.24 The party wishing to enforce the award in Italy must deposit the award within the competent court of first instance, which, after verifying its formal regularity, will declare it enforceable. This rule does not apply if the arbitral award has a contractual nature (arbitrato irrituale – see below). If the place of the arbitration is in Italy, the parties may challenge an arbitral award before the Italian courts.25 The annulment proceedings will be governed by Italian law.26

In foreign arbitration, the parties cannot seek support measures from Italian courts. A party seeking recognition and enforcement of a foreign award must apply to the competent court of appeal, which will decide on the basis of the regime set out in Articles 839 and 840 CCP (reflecting the criteria established by Articles IV and V of the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards entered into force for Italy on 1 May 1969).

The arbitration can be either ad hoc or administered.27 In Italy, arbitration governed by institutional rules (e.g., those of the ICC or the Milan Chamber of Arbitration) is quite common.

‘Non-jurisdictional arbitration’

When the parties agree to this type of arbitration, the arbitral award has the effect of a contract between parties. It is debatable whether this contractual determination is subject to the recognition and enforcement rules established by the 1958 New York Convention.

The challenge of the award

The arbitral award can be challenged before the court of appeal of the district at the seat of arbitration.28 The parties to the arbitration may request that the award be annulled or revoked. Moreover, a third party may file an opposition against the award where it causes prejudice to its rights.

Appeal

The appeal for the annulment of the award must be notified to the defendant within 90 days after the day on which the award has been notified to the appellant or, failing the notification, within one year after the day the arbitrator has signed the award.29

The grounds for appeal are established by Article 829 CCP and there are two types: errores in procedendo and errores in iudicando.

The appeal on the grounds of errores in procedendo is admissible in any case, even if the parties have agreed that the award is not subject to appeal. The appeal based on errores in iudicando is admissible only if expressly provided by the arbitration agreement or by law.

Revocation

The award can be revoked if it stems from one party’s fraud, or it is based on evidence that is proven to be false after the award, or documents that could not be filed in the arbitration proceedings because of force majeure or the other party’s behaviour are discovered after the award, or the award stems from the arbitrator’s fraud established by a final decision by the judge.

Third-party opposition

An opposition against the award may be filed by a third party if it causes prejudice to its rights, and by one party’s creditors if the award stems from one party’s fraud that is detrimental to them.30

iii Mediation

With regard to certain matters (e.g., insurance, financial and banking agreements), Legislative Decree No. 28/2010 provided for a compulsory attempt at conciliation with the assistance of a qualified mediator prior to commencing court proceedings.

iv Other forms of alternative dispute resolution

Arbitrage is governed by Article 1349 of the Civil Code and is entirely different from arbitration. In arbitrage the parties delegate a third person, by means of an ad hoc agreement, to determine an element of a legal relationship in the process of being created. The parties commit themselves to the third person’s determination.

Contractual expertise is not regulated by the law. By means of an ad hoc agreement, the parties appoint a third party to ascertain a certain fact requiring specialist knowledge, committing themselves to the expert’s decision. Contractual expertise is rather common, especially in insurance matters to determine the amount of damage.

Lawyers’ negotiation is a new procedure introduced by Law Decree No. 132/2014. It must be triggered by the party wishing to begin a lawsuit in the specific cases indicated by the law. The result of this negotiation is a written agreement, which – in case of breach of the obligations provided therein – is title both for the commencement of an enforcement proceeding and for the raise of a mortgage against the defaulting party.

VII OUTLOOK AND CONCLUSIONS

Unlike in other recent years, in 2016 there were no significant reforms of ordinary proceedings. According to the most recent available data, the reforms implemented in past years have had slightly positive effects, with the number of pending cases decreasing by 7.19 per cent from 30 June 2014 to 30 June 2015. On the other hand, there have been no significant developments with regard to the average duration of ordinary proceedings, which – on the basis of the information available at 30 June 2015 – is as follows: 389 days before courts of first instance; 819 days before courts of appeal; 1,427 days before the Supreme Court.

Footnotes

1 Monica Iacoviello, Vittorio Allavena, Paolo Di Giovanni and Tommaso Faelli are partners at BonelliErede.

2 Article 163 bis CCP.

3 Article 140 bis was introduced in the Consumer Code by Law No. 244/2007, subsequently amended by Law No. 99 of 23 July 2009 and Law No. 27 of 24 March 2012.

4 Only 11 civil courts have jurisdiction over class actions. The Court of Turin has jurisdiction over the Valle d’Aosta region; the Court of Venice over Trentino-Alto Adige and Friuli-Venezia Giulia; the Court of Rome over Marche, Umbria and Molise; and the Court of Naples over Basilicata and Calabria.

5 On 21 November 2016, the Supreme Court clarified that, if a court of appeal regards a claim as admissible, the decision may not be further challenged. Conversely, the possibility to challenge a court of appeal’s inadmissibility ruling, which was excluded by Supreme Court’s decision dated 14 June 2012, is now controversial. In fact, the matter was referred to the United Divisions of the Supreme Court on 24 April 2015, and the court has not ruled yet.

6 See Turin Court of Appeal judgement of 17 November 2015 (Associazione Altroconsumo v. Fiat Chrysler Automobiles Italy SpA) and Venice Court of Appeal judgement of 17 June 2016 (Associazione Altroconsumo v. Volkswagen AG - Volkswagen Group Italy SpA). The cases are still pending.

7 Article 10 of the Code.

8 Article 28 of the Code.

9 Article 24 of the Code. It also provides – as a consequence of the violation of the conflict of interest discipline – the suspension from legal counselling from one to three years.

10 Article 68 of the Code.

11 Article 24(f) of the Data Protection Code.

12 This ‘consent exception’ does not avoid the need of previously informing the data subject of the processing of its personal data. However, if the prior information may put at risk the acquisition of the relevant evidence, it can be postponed to a later time (see Article 13, paragraph 5(b) of the Data Protection Code, and Italian Data Protection Authority decision of 6 November 2008 on defensive investigations).

13 Note that the European data protection authority (Article 29 Working Party) adopted a strict interpretation of the abovementioned defensive exception in case of personal data transfer outside the EU territory (see Working document on a common interpretation of Article 26(1) of Directive 95/46/EC of 24 October 1995 of 25 November 2005), aimed at avoiding ‘massive’ transfers of personal data. In this regard, processing of personal data for defensive needs must be actually necessary.

14 Decision of the Italian Supreme Court No. 7783 of 3 April 2014, recently confirmed by Italian Supreme Court, Criminal Section, No. 43414 of 13 October 2016 and No. 33560 of 28 May 2015.

15 Article 116 CCP.

16 Supreme Court Decisions No. 13072 of 8 September 2003, No. 4363 of 16 May 1997, No. 2760 of 27 March 1996 and No. 9715 of 14 September 1995.

17 Articles 807, 808 and 808 bis CCP.

18 Article 808 CCP.

19 Article 818 CCP.

20 Article 669 quinquies CCP.

21 Article 806 CCP.

22 Articles 810 and 811 CCP.

23 Article 815 CCP.

24 Article 825 CCP.

25 Articles 829 and 831 CCP.

26 Articles 827 to 831 CCP.

27 Article 832 CCP.

28 Articles 828 and 831 CCP.

29 Article 828 CCP.

30 Article 831 CCP by reference to Article 404 CCP.