The Modern Crisis of Res Judicata : The Italian Answer to the Attempt of the European Court of Justice to Disrupt the Res Judicata

“The need for certainty has always been stronger than the need for truth”. The French anthropologist Gustave Le Bon summarized the need for certainty that Societies always put before the need for truth. By a legal point of view, it is a task, which the systems born under the Western legal tradition, have entrusted to the res judicata. Recently, however, the “millenary strength” of the res judicata has been subject to a process of “deconstruction” put in place by the European Court of Justice (ECJ) in the name of values that, in the ECJ point of view, cannot be sacrificed in any way. This happened first in the tax field (in VAT-related matters) and, even more recently, in the matter of the opposition to cease and desist order (opposizione a decreto ingiuntivo) to protect consumer rights. These decisions, although driven by concerns about the effectiveness of the law throughout the European Union territory, go to enrich the procedural status of the consumer at the expense of the certainty of legal transactions based on the strength of the res judicata. At this point some questions arise: are we thus witnessing “The sunset of the centrality of the res judicata?” Do we find ourselves living in an era where we are witnessing increasingly pronounced sections of matters that, finding their new foundation in the international framework, appear increasingly “disengaged” from the dictates that traditionally bind them to domestic dogmatic constructions? The impression is that we are moving toward this second directive line without, however, being fully aware of the consequences in terms of the resilience of the overall system. In addition, on the famous “dialogue among Courts” and beyond the political implications that may arise from a further transfer of sovereignty to a body created for the purpose of resolving interpretive issues, and not to dictate rules of general application. What needs to been asked is: can the interpretation of an agreement between States go so far as to destabilize the tightness of a national system? In other words, are we willing to give up the requirements of stability and legal certainty that act as a natural counterbalance to the res judicata in order not to jeopardize a matter such as that of alleged abuses in the VAT field or consumer protection in the opposition to cease and desist order procedure? And even if we were willing to accept such an “opening” (i.e., not to consider the res judicata fully operative), can we be sure that this will not be used as a “window” for future deconstruction of the discipline of the res judicata with catastrophic consequences in terms of the tightness of the entire domestic system?