Revista Ítalo-Española de Derecho Procesal
pp. 15-35
Madrid, 2024
DOI: 10.37417/rivitsproc/2193
Marcial Pons Ediciones Jurídicas y Sociales
© Davide Turroni
ISSN: 2605-5244
Recibido: 11/01/2024 | Aceptado: 20/03/2024
Editado bajo licencia Creative Commons Attribution 4.0 International License.

PARTY DISPOSITION AND EX OFFICIO POWERS IN THE TAKING OF EVIDENCE. HOW TO MAKE MUTUAL COOPERATION WORK

Davide Turroni

Associate Professor in Civil Procedure at the University of Torino*

ABSTRACT: Although the taking of evidence relies primarily on the parties’ initiative, the tendency to confer the court ex officio investigative powers is diffuse and shows in the last decades a growing trend. After a brief overview of this trend throughout legal systems traditionally tied to the so-called dispositive principle, the author focuses on how a court is expected to manage these powers. In this context, the Italian experience will serve as a test-bench for an analysis of the way the issue should be dealt with.

KEYWORDS: taking evidence; judicial powers of inquiry; disposition principle: principle of party initiative; ex officio measures of inquiry; verhandlungsmaxim; dispositionsprinzip

SUMMARY: 1. INTRODUCTION AND SCOPE OF THIS CONTRIBUTION.— 2. A TERMINOLOGICAL CLARIFICATION.— 3. RECENT APPROACHES TO COURT’S POWERS OF INVESTIGATION.— 4. HOW THINGS STAND IN ITALY.— 5. EX OFFICIO POWERS AND COURT’S IMPARTIALITY: A FEW REMARKS.— 6. JUDICIAL SELF-RESTRAINT.— 7. SOME DIRECTIONS. HOW ITALIAN COURTS DISPENSE THEIR POWER OF INITIATIVE IN THE TAKING OF EVIDENCE.— 8. EX OFFICIO POWER AND PARTY’S REQUEST TO USE IT.— 9. EX OFFICIO TAKING OF EVIDENCE. LIMITS: 9.1. Already Proven Facts; 9.2. Allegations and Content of the Case File.— 10. JUDICIAL POWERS OF INITIATIVE IN FAVOR OF CONSUMERS.— 11. RIGHT TO BE HEARD

1. INTRODUCTION AND SCOPE OF THIS CONTRIBUTION

In its traditional and all-comprehensive definition, principle of party disposition means that the parties only may bring action before the court, as well as the related allegations and evidence. It is, though, a well-known fact that also in civil litigation this principle reflects nowadays at most a tendency, since purely disposition principle-based proceedings are quite difficult to track down.

Although a general tendency persists to reserve to the parties the initiative of bringing and setting up the claim along with the relevant factual allegations, remarkable openings to ex officio judicial powers in the taking of evidence must be acknowledged in Europe and generally in the rule-of-law-based countries. In the field of the evidential initiative, we may plainly start from assuming that, as a matter of fact, reference to the principle of party disposition isn’t but an index on how, in a given context, the balance between parties’ initiative and judicial powers weighs in favor of the former.

It is precisely with respect to the taking of evidence that I would like to discuss the topic concerning the limits of the court’s own initiative.

Contrary to the conventional score of the debate, little space will be given to the general issue of whether the court’s initiative should be encouraged or prevented 1. I would rather point out that the current tendency in evidential matter is that of extending the court’s initiative powers; which will be illustrated, in the first part of the essay, through a short overview of some of the legal systems traditionally based on the disposition principle.

The second part will be dealt with the main issue, which is how is the court expected to manage those powers insofar as it is endowed with. The Italian legal system will serve in this respect as a test-bench for an analysis of the way the issue should be addressed.

The analysis will be centered on the common areas of civil litigation where the parties have a significant control on whether to start proceedings and on its subject-matter (thema decidendum). It will not extend to those matters where public interest prevails, and the parties’ control over the thema decidendum gives in to pervasive ex officio powers (e.g. vulnerable persons’ protection, insolvency, in general the so-called non-contentious matters): this peculiar area of civil justice requires a distinct investigation that falls outside the scope of this essay.

2. A TERMINOLOGICAL CLARIFICATION

As anticipated, significant openings to ex officio powers in the taking of evidence show up in many countries historically based on the disposition principle.

This trend is accompanied by the now diffused tendency to distinguish between a «principle of party disposition», here intended as a rule strictly related to the initiative of asking for judicial protection and lodging the relative statements, and a «principle of party initiative» whereby the facts must be established, as a rule, through the party’s initiative consisting in alleging them and providing the related evidence. According to this distinction, the former (Dispositionsmaxime) is quite rigidly observed, to the effect that the court almost always prevented from bringing a lawsuit ex officio and generally from introduce variations in the subject/matter of the proceedings, whereas the latter (Verhandlungsmaxime or Beibringungsgrundsatz) depends on specific technical choices which may vary consistently from a procedural scheme to the other 2. Yet, the allegation of facts on one side, and the bringing of evidence on the other, respond to basically different ratios. In the context concerned, the court’s powers of initiative are far more accepted as regards the taking of evidence than for the allegation of facts. The latter activity contributes to the very texture of the claim: it is therefore quite difficult, and to some extent impossible to distinguish the allegation from what is the subject of the said Dispositionsprinzip 3, which gives rise to doubts over the consistency of such a distinction and the utility of subsuming both phenomena under the same Maxime. As far as terminology is concerned, I’ll therefore keep using terms such as «party disposition» when I refer to the idea of a dominance by the parties over the taking of evidence.

3. RECENT APPROACHES TO COURT’S POWERS OF INVESTIGATION

With a view to illustrate the said tendency, a brief overview throughout various legal systems should be of help 4,

Reference can be made, firstly, to countries that have adopted general rules providing the court with general evidential powers of initiative.

So, in France, articles 10 and 143 of the Code de procédure civile grants the court power to have all the admissible evidence determined ex officio 5. On its part, art. 370 of the Brazilian Código de Processo Civil confers the court, either of its own motion or at party’s request, power to take evidence deemed necessary for the judgment on the merits 6.

In the lack of general rules of a similar kind, other systems evolved through the progressive marginalisation of the parties’ disposition in evidential matter.

So in Germany the generally accepted Verhandlungsgrundsatz (see previous para.) conferring such initiative to the parties, has been almost overturned as regards the court’s initiative; which is positively confirmed by a wide range of provisions, to begin with the measures of inquiry envisaged in the ZPO - Zivilprozessordung and notably in its §§ 142 and 143 on the exhibit of documents and of document acts; § 144 on the inspection and the appointment of experts; § 448 as for the questioning of the parties, aimed at assessing a disputed fact on which the evidence already taken isn’t enough for the court to be persuaded 7. In short, what at present remains in the parties’ disposition is the witness evidence (§ 373 ZPO) 8.

Despite a general opposite rule, other legal systems have developed an array of techniques aimed at significantly extending judicial powers of inquiry.

In Spain 9 a general tribute to the principle of party disposition in the taking of evidence is made in art. 282 LEC – Ley de Enjuiciamiento Civil 10 as well as implied by Art. 429.1., comma 3, LEC, whereby the court, prior to the opening of the inquiry, if considers the evidence offered by the parties as insufficient for the ascertainment of some disputed facts, will point this out to the parties, highlighting, where appropriate, the additional evidence they may resort to 11. The same implication is reflected by art. 435.2. LEC 12, in so far as it grants the court, in exceptional cases, power to renew a measure of inquiry when its previous execution has been unsuccessful owing to circumstances the parties weren’t accountable for: it is in fact —and unlike the Diligencias para mejor proveer provided for in artt. 340-342 of the LEC previously in force enacted in 1881 13— a power of second degree, depending on the fact that the taking of evidence was originally requested by the party 14. Besides the formal tribute to the disposition principle, a rule such as that of art. 429.1, comma 3, LEC achieves in fact a result that goes in the opposite direction, since it is normal that an ex officio indication of a missing evidence prompts the interested party (i.e. the one who’s more likely to take advantage of it) to act accordingly; which reduces almost to a nuance the difference between such a technique and that of allowing directly the court to proceed of its own motion to the taking of evidence 15.

Significantly the same approach encountered in the spanish LEC shows up in the ELI/UNIDROIT Model European Rules of Civil Procedure 2020 16, where both Rule 25 and 92 17 provide the court general authority to advise the parties on possible additional offers of evidence, whereas is labeled as “exceptional” the court’s power to take evidence of its own motion. This model too results therefore in a compromise 18 that goes clearly in favor of a basically active role of the court in this matter.

Art. 115 of the italian C.p.c.—Code of civil procedure—makes the taking of evidence dependant on the request of the parties; yet, legislation and case law set forth a diffuse series of exceptions tending to overturn such a general provision. This system will be discussed futher on in more detail.

Finally, derogations to the dispositive principle are also to be found in countries traditionally modelled on the adversary system.

In England the adversary system still holds, despite the almost complete disappearance of the jury in civil litigation 19, the abolition of the hearsay rule 20, and the fact that the 1998 Civil Procedure Rules conferred the court significant means to effectively exert its case-management powers 21. Nevertheless, the court is granted general authority to advise the parties on evidence it is for them convenient to offer (Rule 32.1.), to which the previous remarks on art. 429 LEC may apply. Also, the court may take of its own motion specific measures of inquiry, like that of ordering a party to clarify any matter in dispute or give information thereto (Rule 18.1.(1) ), of appointing technical advisors («asessors»: see Rule 35.15), in addition to that of giving binding directions to the party-apointed experts 22 and to the parties themselves 23.

Even the North American civil justice, famous for being a diehard model of the adversary system, undergoes since decades the tendency to give the judge effective powers in case management, encompassing ex officio powers to take measures of inquiry. See notably, of the 1975 Federal Rules of Evidence, Rule 614 (a), whereby “The court may call a witness on its own or at a party’s request.”; and Rule 706 (a), stating that “[...] The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.” 24 It is interesting to note that one of the reasons for granting the Court power to call witnesses has been expressed this way: “the judge is not imprisoned within the case as made by the parties.”; which openly conflicts with the intimate logic of the adversary system.

4. HOW THINGS STAND IN ITALY

The second part of this essay is focused on Italy and its way of managing the balance between parties’ and court’s powers of initiative in the taking of evidence. It will provide the opportunity for general remarks on how court’s power should be administered to be effective and not to jeopardise fundamental guarantees.

Art. 115 of the Italian civil procedure code (hereinafter «c.p.c.») states that, unless otherwise provided for by law, the court shall base its decision on the evidence offered by the parties and the public prosecutor. It makes then, as a rule —and according to the current opinion— the taking of evidence dependent on the parties’ request 25. Still, a diffuse and important series of exceptions emerges in such a way as to significantly weaken the general rule.

It is worth pointing out that some influential scholars have been challenging the reported mainstream interpretation of art. 115 c.p.c. Michele Taruffo 26, especially, maintains that said article doesn’t even set out a rule of the like: it must be interpreted as simply imposing the judge not to disregard the evidence provided by the parties – ultimately what has been called the «right to evidence» – without saying anything about his own powers of investigation 27. This author is one of the most prominent representatives of the idea that, to carry out its task of being fair and just, a modern civil judicial system should grant the court general power of initiative in the taking of evidence, such being a fundamental factor for the proceedings to attain an outcome as much as possible consistent with the factual truth and therefore effective protection for the rights involved. In this respect, a restrictive approach to court’s powers should be regarded as a relic from the past and rejected accordingly.

Contrary to this reading of art. 115 c.p.c., one might say that not only art. 115 but the complex of the statutory provisions dealing with the matter say what this doctrine has been challenging, namely that the court shall not order the taking of evidence of its own motion, unless the law provides otherwise 28. This is in fact not only the intention the original lawmaker expressed alongside the articles of the 1940 code of civil procedure: the procedural legislation developed thereafter seems in fact to be going in the same direction, since it is only in specific matters or situations that it expressly grants the court ex officio powers in the taking of evidence. Which is to say that explicit provisions are deemed necessary for those powers to be conferred to the court 29.

The above-mentioned, alternative interpretation of art. 115 c.p.c. requires therefore a deliberate denial of the assumption underlying the complex of the legislation today in force. Which is in principle even possible, since on a pure syntactic basis the provision in question is compatible with this interpretation 30 and the general theory admits the evolutive interpretation of laws.

Aside from reasons centered on constitutional values and present needs, a significant role in this respect should indeed be played by the mass itself of derogatory provisions to the general rule. As already pointed out, provisions of the like are supposedly consistent with an opposite rule excluding general ex officio powers of initiative in this respect. Nonetheless, they have been gradually extending ex officio evidential powers; and the more these provisions proliferate, the more the general clause loses its sense along with its attitude to reflect values and needs of the present society.

In parallel with statutory trends, the case law has been on its part progressively improving ex officio powers of investigation. Recent examples of deviations from the general rule can be observed in the activity of the court’s technical expert, whose considerable improvement relates to the same phenomenon here in question, resulting in a significant interference by the court (via its expert consultant) in the parties’ evidential initiative 31; then in the area of consumer protection, where a series of decisions by the ECJ have conferred the court significant ex officio powers to control the absence of unfair clauses in the contract at the base of the claim (see further on this topic, para. 10.). It is always possible to give distinct explanation for each of the case law-based derogation from the alleged general rule; yet, what is here to point out is the fact that none of them has been prevented by the traditional and still now commonly accepted interpretation of art. 115 c.p.c.

In such a context it becomes increasingly less important wondering whether a disposition principle in evidential matters survives, and more urgent, instead, determining how judicial powers can be rightfully governed so to prevent a wanton use and a prejudice—more than to a disposition principle—to the parties’ fundamental rights, namely the right to be heard, to contradict, to set the subject-matter of the proceedings.

5. EX OFFICIO POWERS AND COURT’S IMPARTIALITY: A FEW REMARKS

As anticipated in the foreword, the debate on whether to grant the courts general power to take evidence is not the subject of this essay. Just on one of the most disputed aspects of this topic I will spend some remarks for a better clarification of the next passages.

Within the arguments for supporting a general judicial power of initiative in evidential matter, one is that it does not undermine the third-party position of the court. Leaving aside the amount of legislation explicitly providing this power, and the reasons why the courts’ general approach to the taking of evidence was kept generally passive along the centuries 32, I find this argument, up to a certain point, convincing.

From a formal-functional perspective, what a court generally does by ordering evidence of its own motion is, in fact, ordering evidence to be taken, which is a vehicle (a means of proof) and not a proof. Strictly speaking, the former is neutral since the court does not know in advance whether and which party the evidence turns out to be favorable to 33.

On a more substantial basis, the attitude to address dubious points of fact towards a solution as close as possible to reality —without detracting from the inescapable margins of complexity and relativity in this assertion as well as in its single components— is indeed what a rule of law-shaped society expects from a court, this being vital for the rights proclaimed by law to be effective. As regards the factual issues, a court is therefore expected to be neither indifferent nor partial but aimed at rationally assessing the relevant facts. Once this premise is accepted, there’s no reason why this attitude should affect the court’s impartiality when it materializes in taking evidence, and not, let’s say, when the court raises ex officio an objection of contractual invalidity; or even when, based on the evidence provided by the party, it positively establishes a party’s assertion to be true.

In the meantime it is true that judicial powers of initiative in the taking of evidence may, on a statistical basis, result in an advantage for the weaker party, namely for that who either finds it harder to accede to a qualified (and generally more expensive) legal assistance or has less chance to have access to evidence; and that the court may also foresee the possible outcome of evidence. However true, this backdrop is not capable to undermine the court’s third-party position in the single case, once it is accepted that these are possible consequences, not the causes of the judicial initiative.

Still, it would be erroneous acceding to the geometric and absolute conclusion that the use of these judicial powers cannot affect in any case the court’s third-party position, since there are limits the court should not trespass, lest this position is compromised. This is the case of a court that, despite the presence of evidence already acquired on a certain allegation, orders of its own motion the taking of evidence to double-check the same allegation. A behavior like that may be interpreted as an attempt by the court to refute an already proven fact by finding evidence pointing to the contrary: this is indeed an index of partiality a court should not afford, which requires, when put in place, appropriate remedies. On this specific issue I shall return below (infra 9.1.).

6. JUDICIAL SELF-RESTRAINT

The conferral to the court of ex officio powers in the taking of evidence entails issues of different nature.

Even when the court is provided with such powers, its attitude, left aside notable exceptions in specific areas or activities 34, remains generally passive. This is partly due to the court’s cultural tendency to self-restraint, partly to the lack of resources for systematically assuming an active role 35, which often results in a veritable disproportion between the number of magistrates and the average case-flow. In short, the normal vehicle of evidential initiatives was, and keeps being, the parties, whereas the court maintains in this respect a subsidiary function.

In this scenario, the major risk is that of a non-uniform use of those powers, which may be a factor of distortion and unfairness when, in comparable situations, the court behaves differently, respectively by abstaining from and by using the powers in question.

7. SOME DIRECTIONS. HOW ITALIAN COURTS DISPENSE THEIR POWER OF INITIATIVE IN THE TAKING OF EVIDENCE

Italy lacks specific provisions on the consequences of failure by using ex officio powers. On its part, the Italian case-law tends in the last decades to consider this power as a veritable though discretionary duty (“potere-dovere”), and the failure to exert it as a defect capable to invalidate the procedural and insofar the subsequent judgment.

Some clear directions as to how the court shall make use of its powers of investigation have been given in labor litigation 36, where the judge, pursuant to art. 421 c.p.c., is expressly granted general power of initiative in the taking of evidence. Yet the reasons expressed in this case-law should extend in general to the situations where the court is given similar powers of initiative.

From the referred case-law it is possible to draw some directions that are worth considering for a general approach to the problem concerned.

A) a) A party, although time-barred from the right to offer evidence, may nonetheless request the Court to take evidence of its own motion: in this case the court may not dismiss the request solely on the ground that the party’s request is belated, and in the lack of other impediments (see further on, sub C) and para. IX) it shall use its evidential powers accordingly. b) In any case, the court shall rule on the request and state grounds for its decision. c) Failure to comply with either these directions sub a) or b) results in an infringement affecting the proceeding and the consequent judgment.

B) In the absence of a party’s request, the failure to exert ex officio powers of investigation does not seem to constitute a procedural infringement.

C) Whether or not there’s a party’s request, the court may validly take evidence of its own motion under the following conditions: a) at the basis of the measure lies an evidential trail, i.e. there are already some circumstances supporting the allegation; b) the court may not take evidence ex officio on facts the parties haven’t previously alleged; c) by derogation from b), a measure of inquiry may be taken ex officio over a fact that, though not alleged by the party, results from the documents in the case-file, either if c1) it is a fact whose legal effects may be raised by the court of its own motion (e.g. the nullity of the contract underlying the claim) or c2) it is a secondary fact 37, such being a fact allowing an indirect representation of the principal facts—i.e. the facts representing the ground (the justification) of the legal effect—and serving basically as an evidential function.

D) Whenever the court resolves to take evidence of its own motion, the parties shall be given the opportunity to comment on it and bring additional evidence consequent to that ordered by the court.

8. EX OFFICIO POWER AND PARTY’S REQUEST TO USE IT

I would firstly spend some remarks on the approach considered on A) and B), as regards a positive duty for the court to exercise its ex officio powers under penalty of procedural infringement.

This approach, which is far from being universally accepted 38, leads indirectly to a restitution of the party’s evidential powers. It adds to the general situations where the law explicitly grants the party such a benefit, and it is basically a special type of restoration.

The outcome conflicts somehow with the aim pursued with the time-barrage: since it meets the need to give the proceedings a certain speed, it is then indifferent whether the proceedings is slowed down by a party’s or by a court’s initiative. In addition, it renders an ex officio power something contrary to its ratio, namely an instrument for the party to obtain what he has been already foreclosed on. A conflict like this is nonetheless acceptable 39, being consistent with the need for the court to rationally assess the facts “without being imprisoned within the case as made by the parties” (so the comment to the U.S. Federal Rules of Evidence 614 cited supra, 3.).

On the other hand, this solution leads to a procedural breach only in the presence of a request by the party (so direction A)), being in fact clear that, according to this direction, in the absence of a formal request the court’s abstention from using its powers of investigation doesn’t constitute a proper procedural violation (cfr. direction B)). It is a quite empirical solution since it leaves to the party’s initiative the legal consequences of a failure by the court to comply with a duty of its own, which restores to the party a disposition power that in theory was taken away. It is, though, a realistic compromise between the conferral of ex officio powers and the fact that the possibilities for the court to extensively exert these powers are very limited, on account of both its resources and its functional structure, more tailored for controlling the parties’ initiative than for assuming the initiative itself.

9. EX OFFICIO TAKING OF EVIDENCE. LIMITS

The limits to the court’s own evidential initiative, as reported sub C), provide material for extended analysis, which I’ll try here to outline in few remarks.

9.1. Already Proven Facts

The condition mentioned sub C)a), whereby at the basis of the requested evidence there has to be an evidential trail, is in part convincing. If there’s already clear evidence of a factual allegation to be true, or false, a court’s resolution to take evidence ex officio is not only questionable as superfluous, but gives (as anticipated supra, 5.) actual ground to suspect that the judge is prejudiced in favor of a party or against the other. Despite the court isn’t aware of the outcome, it is obvious that an additional measure in this situation, if not irrationally superfluous, may serve the sole purpose of refuting the previous finding.

Different is the situation where a point of fact remains uncertain because none of the parties have succeeded in demonstrating their respective assertions. Despite that, I don’t think that, in this case, an ex officio initiative to shed light on the fact may call into question the court’s impartiality, more than it does where an evidentiary trail exists. In both cases, an objection that the point of fact should be directly adjudicated in accordance with the burden of proof would also miss the mark, being in contradiction with the legislative choice to endow the court with evidential powers of initiative, provided this choice always interferes with the burden of proof. Which doesn’t mean that the burden of proof never applies; it means, instead, that its application must be considered as a last resource, to be applied after the parties, and eventually the court of its own motion, have tried to positively establish the relevant facts 40.

9.2. Allegations and Content of the Case File

Condition sub C)b) stems from the general rule whereby it is for the parties only to bring the action, to set the relative statements as well as the underlying factual assertions. The court may therefore not take evidence on facts the parties haven’t previously alleged, provided these facts are constituent elements of the case. This condition prevents the overstepping of the thema decidendum which is for the parties to set out; in addition, it serves the principle that the court shall not base the judgment on facts of which it has special knowledge – meaning for «special» what it may draw from a personal knowledge, not reflected in the case file. Also, it applies to the facts regardless of whether they constitute the base of the claim or of an objection.

A series of problems on this direction arise, since neither all the facts nor all the objections are at the same level. And here come the directions sub C)c) as correctives to the former.

Provided that the court may not draw the assessment of facts from its special knowledge, problem is whether and when the base for the finding may consist solely in the parties’ allegations or also in any element emerged during the proceedings and acquired in the case file. According to the common opinion, what distinguishes the party’s allegation from other sources of factual representation is that the former consists in, and have the function of, conveying a party’s self-aware statement of facts; a function that other sources available in the case file in principle don’t have, even when the content results itself in a deliberate declaration of the party.

In a system where it is for the parties to bring proceedings and to outline its subject-matter (i.e. the thema decidendum), it is then consistent that this subject matter and its perimeter be set out through the sole parties’ allegations —understood in the sense above-mentioned— and not also by other sources present in the case file, lest this perimeter be exceeded. Within this perimeter, though, an investigation on facts emerging from other sources is possible and even advisable: provided that those facts are secondary —i.e. not capable to shift the thema decidendum and mainly functional to provide evidence (see also above, 2., note 3)— a judicial inquiry extended to any source collected in the case file gives more chances for a better finding 41.

Also, it cannot be neglected that, frequently, relevant facts and related evidence show up out of an ex officio inquiry, without being previously included in any act or document collected in the case file. Such a situation is indeed quite common during the operations of the court’s technical expert since his technical skills help targeting facts and evidence otherwise scarcely detectable – and assuming that, within the present scope, his activity is equivalent to that of the court, which should be certainly the case of experts appointed as court’s auxiliaries. Here the question arises as to whether it is possible to extend the ex officio powers to secondary facts the case file doesn’t even mention (but the issue also affects evidence that the court may not take of its own motion). I think that a complete denial of access to external sources would be excessive and most of all unrealistic 42; and that, when it comes to secondary facts, the answer should be in principle in the affirmative 43.

There’s just to add that, in practical terms, the distinction between principal and secondary facts remains problematic, and I doubt it is possible to set firm boundaries between the two, being the related criteria subject to many variables 44. I’d venture to say that, in questionable situations, the better approach is that of assuming the fact as secondary and shifting then the focus to the direction sub D), namely to the implementation of the right to be heard (on which see below par. 11.).

Similar remarks also apply when the inquiry involves those facts whose legal effects is for the court to raise of its own motion, regardless of their qualification as principal facts. Since the court is in this case entitled to influence the thema decidendum, there’s the same reason illustrated above not to tie its powers of investigation to the parties’ allegations.

10. JUDICIAL POWERS OF INITIATIVE IN FAVOR OF CONSUMERS

Consumer protection in civil justice has been the subject of extensive activity by both the lawmakers and the case-law. The recent developments in the EU area show an intensive use of ex officio powers as a fundamental resource for achieving the goals of the EEC Directive 93/13 on unfair terms in consumer contracts and, more specifically, for implementing artt. 6 and 7 thereof 45. Next to court’s power to raise ex officio the unfairness of relevant contractual clauses 46, judicial protection of consumers results also in conferring the court related powers of initiative in the taking of evidence.

According to the ECJ case-law 47, the national court shall notably order of its own motion all the investigative measures deemed necessary to ascertain the absence of unfair clauses at the base of the relevant contract, and this introduces a specific, EU-featured derogation to the disposition principle wherever the Member States don’t already include a rule of the like within their internal legal sources 48.

These investigative powers, as defined by the ECJ case-law, don’t seem however to go beyond the limits envisaged in the abovementioned directions sub C)c). It should first be recalled that the court is called upon to examine ex officio, on the basis of the elements available in the case file, the relevant contractual terms so to assess the possible unfairness of the clauses involved. In this respect, and according to the ECJ, the court’s duty to further investigate by ordering measures of inquiry of its own motion, in accordance to direction sub C)c1), requires the national court to have serious doubts as to the fairness of the contractual clause involved. In line with the direction above referred to on C)c2), such a doubt may also emerge from any document collected in the case file, without being necessary for it to result from the consumer’s allegations.

A peculiar discipline the ECJ case law has set out when the claim brought by the professional is channeled by means of a request for an injunction inaudita altera parte – meaning here with «injunction» an order for payment of a money debt, or for the fulfillment of any other obligation, the creditor is entitled to obtain without the need for the defendant to be previously heard. In this case, a now well established ECJ jurisprudence entitles the judge, in carrying out his duty to assess the absence of unfair clauses falling within the scope of Directive 93/13, to request ex officio from the creditor additional information relating to the terms of the agreement relied on in support of the claim at issue 49. Here it seems that, for ex officio investigative powers to be exerted, serious doubts as to the fairness of the relevant clause are not required by the ECJ; which implies that judicial powers of initiative go beyond the limits referred to above on C)c1) and even beyond the more elastic criterion proposed in para. 8.1. This solution is, though, consistent with the fact that before the injunction there’s no possibility for the defendant to respond or somehow to be heard, which may leave the judge totally unaware of possible infringements and even of the contract in question in its full text.

11. RIGHT TO BE HEARD

Whenever the court orders to take evidence of its own motion, the parties shall be given the opportunity to comment on it and bring additional evidence consequent to that ordered by the court. In this sense is the direction sub D, which – and it’s almost needless to say 50 – is imposed by the fundamental right of defense and to be heard, in the sense, accepted by the ECHR, of being granted the opportunity to take a position on any relevant element of the proceedings, concerning factual and legal issues; as well as that of responding with appropriate means to the initiatives coming from the other party of from the judge.

I would also add that the more accurately this guarantee is implemented, the minor should be the concern to improve judicial powers (in the taking of evidence in particular). This could be seen as a modern version of the idea of an “isonomic procedural order”. Not in the sense that the judge remains passive, but in a sense of equality between parties and judge in the «evidential dialectic», scil. of a full possibility for the parties to take position and request evidence in response to the court’s initiative.

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