EFFECTS OF EUROPEAN RULES OVERCOMING RES JUDICATA IN THE ITALIAN CIVIL JUSTICE SYSTEM

Res judicata: perhaps the most solemn and complex doctrine of civil procedure law. This work does not seek to reinvent the wheel, nor to review the countless theories that scholars have developed over the centuries about its preclusive effect or its resistance to ius superveniens. My aim is different: to unmask the truth behind the judicial approach to res judicata. Although Italian case law has identified its preclusive effect, the reality looks rather different: among the many doctrinal theories, the italian case-law seems to embrace none. Depending on the circumstances of the case, the scope of res judicata may be adjusted, widened or restricted. No general theory, then – only a pragmatic approach, focused on the need of justice. For this reason, the first chapter investigates the constitutional dimension of res judicata, which I believe can be justified considering the principle of the separation of powers. Precisely because of this constitutional nature, res judicata is exposed to balancing against other fundamental constitutional values: as the Italian Constitutional Court has taught us, “no right is tyrannical.” This constitutional reading, in my view, is confirmed by the history of res judicata itself – perpetually suspended between two poles: the myth of its finality and the need of justice that sometimes call for its flexibility. The second chapter explores this intuition through the analysis of medieval sources of the period of Ius Commune, and particularly through the thought of Maranta, who identified several cases of res judicata “overcoming”. The encounter – or rather, the clash – between res judicata and European law has opened new perspectives. The principle of procedural autonomy of Member States has gradually been eroded, and even res judicata has been reinterpreted in light of the need to ensure the effectiveness of EU law. This theme is developed in the third chapter. The fourth chapter adopts a case-based approach. I have examined the most significant judgments of the European Court of Justice concerning the flexibility of res judicata, from which I have derived a general guideline: the principle of conferral operates also in relation to the resistance of res judicata to EU law. It is therefore easier for res judicata to be set aside where it was formed in matters of exclusive EU competence – such as State aid – and where it obstructs the proper implementation of EU law. In fields of shared competence, such as consumer protection, res judicata is not disregarded but “functionalised”: the Court of Justice reshapes national doctrines so that the preclusive effect of final judgments does not obstruct the effectiveness of EU law. Hence, genuine procedural autonomy of Member States seems today to survive only in matters of “third-type”, which are less affected by the influence of EU law. The fifth and final chapter closes the work. After analysing national case law that has absorbed the teachings of the Court of Justice, I have tried to explain why certain judgments remain unconvincing – too rigid, and insufficiently respectful of EU law. I therefore propose my own handbook concerning State aid and consumer protection.