26.11.2011

Official Journal of the European Union

C 347/16

Reference for a preliminary ruling from the Giudice di Pace di Mercato San Severino (Italy) lodged on 26 September 2011 — Ciro Di Donna v Società imballaggi metallici Salerno Srl (SIMSA)

(Case C-492/11)

2011/C 347/25

Language of the case: Italian

Referring court

Giudice di Pace di Mercato San Severino

Parties to the main proceedings

Applicant: Ciro Di Donna

Defendant: Società Imballaggi Metallici Salerno Srl (SIMSA)

Questions referred

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, proclaimed at Nice on 7 December 2000, as adopted at Strasbourg on 12 December 2007, Directive 2008/52/EC (1) 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 prevent the introduction in a Member State of the European Union of a set of rules such as that established in Italy by Legislative Decree No 28/2010 and Ministerial Decree No 180/2010, as amended by Ministerial Decree No 145/2011, under which:

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

—

where legal proceedings brought after the rejection of a settlement 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 settlement 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 (contributo unificato) (lump sum payment in respect of court fees relating to the case payable on instituting proceedings);

—

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 settlement proposal;

—	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 contributo unificato payable in respect of the proceedings;

—	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;

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

—

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;

—	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;

—

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)?’

(1) OJ L 136, p. 3.