INFORMATION TECHNOLOGY
Court of Cassation: electronic serving occurs when the receipt of acceptance is generated.
In a case concerning an application for ineffectiveness of an injunction, the Court of Cassation preliminarily finds that the appeal is inadmissible for lack of proof of service. Specifically, the receipt of acceptance and the receipt of delivery, the so-called RAC, were not deposited in the electronic file nor were they found elsewhere by the clerk of the court.
In its reasoning, the Court reiterates that ‘With regard to notification by means of PEC (...) proof of service is constituted by the so-called receipt of delivery (RAC), which constitutes the document capable of proving, until proof to the contrary, that the computer message was received in the addressee's mailbox’.
This principle was also clarified by the Italian Constitutional Court, which declared the unconstitutionality of Article 16-septies of Decree-Law No. 179/2012, insofar as it provides that ‘the service performed by telematic means whose acceptance receipt is generated after 9 p.m. and before midnight is perfected for the notifier at 7 a.m. of the following day, instead of at the time of generation of the aforesaid receipt’.
Therefore, for the purpose of determining the moment of perfection of the telematic notification, neither the moment of sending of the PEC message nor the moment in which the delivery receipt is generated is relevant.
By Order No. 24010 of 6 September 2024, the Supreme Court declared the appeal inadmissible.
In its reasoning, the Court reiterates that ‘With regard to notification by means of PEC (...) proof of service is constituted by the so-called receipt of delivery (RAC), which constitutes the document capable of proving, until proof to the contrary, that the computer message was received in the addressee's mailbox’.
This principle was also clarified by the Italian Constitutional Court, which declared the unconstitutionality of Article 16-septies of Decree-Law No. 179/2012, insofar as it provides that ‘the service performed by telematic means whose acceptance receipt is generated after 9 p.m. and before midnight is perfected for the notifier at 7 a.m. of the following day, instead of at the time of generation of the aforesaid receipt’.
Therefore, for the purpose of determining the moment of perfection of the telematic notification, neither the moment of sending of the PEC message nor the moment in which the delivery receipt is generated is relevant.
By Order No. 24010 of 6 September 2024, the Supreme Court declared the appeal inadmissible.
