Determination of Jurisdiction in Proceedings under Art. 8 of Law no. 24/2017: Analysis of the Italian Court of Cassation Order no. 11804 of 2025

The correct identification of jurisdictional competence is a fundamental aspect of civil proceedings. In the sensitive area of medical malpractice, governed by Law no. 24 of 2017 (Gelli-Bianco Law), the question of when to establish jurisdiction has generated uncertainty. The Order of the Court of Cassation no. 11804, filed on May 5, 2025, offers a clear and authoritative answer. This ruling by the Third Civil Section, presided over by F. R. G. A. and with S. P. as the rapporteur, focuses on the nature of damage compensation proceedings for healthcare liability and the crucial role of the conciliatory Technical Assessment Prior to Litigation (ATP) under art. 696-bis of the Italian Code of Civil Procedure (c.p.c.) in determining jurisdiction, providing an essential reference point for lawyers and legal professionals.

The Two-Phase Nature of Gelli-Bianco Proceedings

Article 8 of the Gelli-Bianco Law mandates a compulsory conciliation process through ATP before any substantive judgment. The Court of Cassation, in the case involving S. and A., reiterated that this does not constitute a single proceeding but two distinct, albeit functionally linked, procedures:

• A summary proceeding: the request for conciliatory ATP (art. 696-bis c.p.c.).
• A full-cognition proceeding: the subsequent claim on the merits (art. 281-undecies c.p.c.), following the failure of conciliation.

This distinction is crucial for understanding when jurisdiction is established.

The Court of Cassation's Principle: Moment of Determination of Jurisdiction

The core of the ruling is the identification of the moment when the judge's jurisdiction becomes fixed. The Court enunciated the following principle:

The proceeding governed by art. 8 of Law no. 24 of 2017 does not have the nature of a two-phase proceeding with a unitary structure, but is composed of two distinct proceedings (the first with summary cognition, the second with full cognition), functionally linked by the purpose of pre-trial investigation inherent in the request for a prior technical assessment for conciliation pursuant to art. 696-bis c.p.c.; this nature, on the one hand, excludes that the verification of jurisdiction must take place already in the summary proceeding, with a preclusive effect in the full-cognition proceeding, and instead requires that the relevant issue be discussed after the introduction of the claim on the merits pursuant to art. 281-undecies c.p.c., following an objection by the defendant in their response brief, if it concerns a matter of waivable territorial jurisdiction; on the other hand, given the "retroactive effect" (not only substantive but also procedural) of the judicial claim pursuant to art. 281-undecies c.p.c. to the filing of the application pursuant to art. 696-bis c.p.c., the nature of the proceeding requires that the moment of determination of jurisdiction be identified as that of the filing of the request for conciliatory ATP, with subsequent changes in law or factual circumstances, even procedural ones, having no relevance. (Principle enunciated in the interest of the law pursuant to art. 363, paragraph 3, c.p.c.).

Jurisdiction cannot be precluded during the ATP phase. It will be with the claim on the merits that the defendant can raise the issue of territorial incompetence (if waivable). The "retroactive effect" is fundamental: the effects of the claim on the merits relate back to the filing of the ATP application. This means that jurisdiction is determined at the time the ATP request is filed (art. 5 c.p.c.), without subsequent changes affecting the jurisdiction already established.

Conclusions: Certainty and Procedural Efficiency

Order no. 11804 of 2025 by the Court of Cassation provides long-awaited legal certainty. It clarifies that jurisdiction in proceedings under art. 8 of the Gelli-Bianco Law is fixed upon the filing of the request for conciliatory ATP. This ruling is crucial for managing medical malpractice disputes, reducing procedural uncertainties, and promoting greater efficiency in the judicial system for the benefit of all parties involved in compensation for professional liability damages.