Civil proceedings in Italy and validity of service by certified electronic mail (“PEC”)

published on 13 June 2022 | reading time approx. 3 minutes

In Italy, certified electronic mail ("PEC") is a fast and efficient tool that is used both in court proceedings and in inter private relationships. However, particular attention must be paid to this tool, as the effects of service are produced by means of the receipt of the e-mail in the addressee's mailbox and, regardless to the concrete opening and reading of the message by the addressee.  

The PEC is a type of electronic mail by means of which "electronic documentation certifying the sending and delivery of digital documents is provided to the sender" (art. 1, par. 2, letter g) of the Italian Presidential Decree no. 68 of 2005, Regulation containing provisions for the use of certified electronic mail - hereinafter, the "Presidential Decree"). Given the fact that the system generates the receipts of acceptance and delivery of the message, the PEC is commonly associated to the registered letter with acknowledgement of receipt "for the purposes of the law" (art. 4 of the Presidential Decree).

If on one side natural persons are allowed to have a PEC mailbox, on the other hand, companies, professionals, artisans and public administrations are obliged to have a PEC mailbox. Corporations, cooperative entities, individual firms, companies in liquidation, sole proprietorships, foreign companies with a secondary office in Italy, in fact, are obliged to have a PEC mail address, which must be communicated to the Commercial Register at the time of registration.

The "digital domicile", the certified e-mail address, now accompanies the physical address in Italy, i.e. the registered office for legal persons and the residence for natural persons.

The lack of communication of the PEC email suspends the application for registration of the company in the Commercial Register. The failure to communicate the PEC email to the Commercial Register, leads to an administrative fine of up to EUR 1,032. After October 1, 2020, such amount has been raised as follows:

• from EUR 206 to EUR 2,064 for companies; and
• from EUR 30 to EUR 1,548 for individual firms.

As mentioned above, in addition to such development in commercial relationship, the PEC had in the last years a significant impact even at judicial level in the context of the so-called digitalization of the justice.

As a matter of fact, the notification of judicial documents, is a fundamental aspect of the process and necessary for compliance with the principle of cross-examination and to guarantee the proper exercise of the right of defence. It consists of the service of certain procedural documents, by specific methods, and must be done in compliance with very precise deadlines, sometimes ordered by the judge or provided for by the Italian Civil Code.

As of today, in civil proceedings, communications and notifications by the office of the court are made only by electronic means to the PEC address of the lawyers, in accordance with the regulations on the signing, transmission and receipt of computerized documents (Art. 16(4) of Italian Decree-Law 179/12).

In civil proceedings, moreover, notifications by PEC is developing to such an extent that, in certain cases, lawyers have also been granted the power to carry out the notifications (previously the exclusive prerogative of the bailiff) on their own by ordinary mail or also by PEC.

However, in the proper use of one's PEC box, the notifier (which in this case is the lawyer) must use an account that is attributable to him and that is registered in a public register.

The subject of the validity of notifications made by means of certified e-mail has always attracted particular attention in the development of case law. To date, there is a constantly evolving jurisprudential direction, but one that is consistent in recognizing this type of service as being valid to the widest extent.

For example, with regard to the subject of the service of any judicial or tax enforcement deed by means of a PEC, the irregularity of the service, due to flaws relating to the format of the file used, does not determine its nullity if the delivery of the deed has nevertheless achieved its legal purpose, i.e. it has achieved the result of knowledge.

Recently, the Italian Supreme Court of Cassation, in Judgment No. 17968 of 23 June 2021, denied the possibility of invoking the addressee's lack of knowledge and/or unawareness of the notification of documents by means of PEC in the event that the certified e-mail notification is stored in the "junk mail" box and is mistakenly trashed without being opened.

In this case, the Italian Court of Cassation excluded that the erroneous deletion of the PEC message, which ended up in the junk mailbox, could constitute a fortuitous event or force majeure capable of supporting the failure to timely lodge the opposition. In fact, the Supreme Court ruled that it is the recipient's duty to make sure that the PEC box is working properly, in particular, "it is part of the ordinary diligence of the person in charge of receiving electronic mail (delegated by the owner, who is responsible for it) to also check the junk mail folder, given that messages coming from safe and reliable senders and not containing any attachment prejudicial to the recipient can be automatically inserted in that folder".

Consequently, the owner of the PEC account is obliged to carefully and constantly check all incoming e-mail, including that considered by the management software as "junk mail".

Furthermore, the owner of a PEC account must comply with a number of obligations necessary to ensure the proper functioning of the box and, consequently, the regular reception of e-mail messages. In particular, the owner of a PEC is required to:

• install suitable antivirus and antispam software;
• keep, by any suitable means, receipts of delivery of transmitted messages;
• have a minimum disk space to guarantee functionality;
• have an automatic service to warn him of the upcoming overload of his certified mailbox and to check the actual availability of the available disk space.

In this case, according to the Italian Supreme Court, the plaintiff had not adopted suitable solutions to prevent viruses in incoming e-mails and PEC, nor an operating procedure "alternative to that of the simple and immediate deletion of the PEC message in the trash, once classified by the computer as spam", capable of dealing differently with PEC messages clearly referable to a notification carried out pursuant to Italian law no. 53/1994 "whose relevance is known to those who professionally may be recipients of communication by P.E.C.".

Therefore, the warning for foreign companies operating in Italy, or even just having a secondary office in Italy, is to pay extreme attention to the management of their PEC box, also and above all in view of the fact that failure to constantly check the box and its mismanagement can result in even serious damage, such as the expiry of the time limit for filing an objection.

So, on a very practical level, what should companies do?

First, the company will have to purchase its PEC account - also online - from one of the operators authorised by DigiitPA, the national body for the digitalization of public administration. The list of operators can be found at www.digitpa.gov.it/pec_elenco_ gestori. For purchasing the account, simply click on the name of the operator and follow the instructions.

The PEC address must already be activated at the time of registration to the Commercial Register.

The costs for purchasing a PEC are those established by each individual provider authorized to issue it. On average, depending on the services offered, the price may vary from EUR 5 to 50 per year. On the other hand, the communication of the PEC address to the Commercial Register is exempt from secretarial fees and stamp duty. Therefore, you pay nothing.

Not only that. It must be taken in mind that the receiving PEC account must always be kept active and functioning by its owner: if it fails to do so, the message that has been correctly addressed and forwarded to its PEC will have the value of a successful notification even if it was not actually opened or did not arrive because the space available to receive had run out.

When a PEC account runs out of storage space, new messages can no longer be received. In the meantime, however, senders continue to send them and, often, are unaware that they do not reach their destination, unless the system alerts them to the fact. On this point, case law has ruled on several cases that notifications are deemed to have been achieved even when the mailbox is full and cannot receive the served document, which had nevertheless been validly sent.

It is obvious, therefore, that the sender cannot be held responsible for the recipient's carelessness in the management of its PEC mailbox.

Therefore, companies operating in Italy must pay the utmost attention to their PEC account, as case law agrees that proof of the sending of a message is required regardless of whether the content of the message is known or knowable. This applies to communications in civil and criminal matters as well as by tax authorities.