Understanding the Italian Injunction Decree: A Comprehensive Guide for 2024
Are you living abroad and need to recover a debt in Italy? You’re in the right place. In this guide, we will explain how to navigate the judicial phase using the Italian Injunction Decree, a very important legal tool in the Italian legal system. We will analyze its purpose, the necessary requirements to request it, the following procedure, and much more.
Before we begin, we remind you that you can consult this other article for an overall picture of the subject.
What is the Italian Injunction Decree?
The Italian Injunction Decree (also known as “monitoring provision” or “payment injunction”) is a legal institute provided for in articles 633 and following of the Italian Code of Civil Procedure. It is a legal order issued by a judge following a request made by a creditor. Through its use, the creditor can quickly and effectively obtain what is due to them, without the need to establish a lengthy judicial process.
Specifically, it can obtain:
- Delivery of a specified quantity of fungible goods;
- Delivery of a specific item;
- Payment of a sum of money.
The speed and simplification of the process to obtain an injunction decree, compared to ordinary proceedings, is due to the fact that its issuance does not involve a dispute between the parties; this means that, in this first phase, there is no possibility for the counterparty (the debtor) to present their arguments or evidence. Therefore, the cognition is defined as “summary,” because the judge makes the decision based solely on the documentation provided by the creditor. It should be noted, however, that the summary nature of this phase is lost if the Italian debtor decides to file an opposition. In this way, the procedure would assume a “full cognition” (with so-called “deferred contradiction”), leading to an extension of time and costs to be incurred.
What is the purpose and what are the requirements to request the Italian Injunction Decree?
As mentioned, the Italian injunction decree serves to simplify and speed up the recovery of a debt by a creditor who has the right to it, having written proof. It is advantageous because the procedure is fast and does not require the same costs as an ordinary procedure.
However, specific fundamental requirements must be met, depending on the object of the credit:
- Being legitimate holders of a right to credit;
- If it concerns a sum of money, it must be liquid (quantifiable) and exigible;
- If it concerns the delivery of a specific quantity of fungible things, they must be replaceable with others of the same kind and quality;
- If it concerns the delivery of a movable good, it must be clearly identified by the creditor;
- Having written proof of the credit right to be enforced (for example, the creditor, to demonstrate the existence of the debt, could attach a contract, an invoice, or any other relevant and pertinent document).
What actions can the creditor take before activating the injunction procedure?
Before undertaking a judicial phase like the injunction procedure, the creditor can protect themselves in various ways. They may choose to exercise less burdensome actions towards the Italian debtor, such as sending one or more payment reminders, proposing to negotiate a different payment plan, or sending a default notice (we discuss the latter in this article).
Which judge is competent for the Italian Injunction Decree?
To determine competence and avoid jurisdictional problems, one must look at art. 637 of the Code of Civil Procedure; the value of the credit and the location of the debtor are taken into account. Once the competent judge has been identified, the creditor must file the petition at the clerk’s office of the same. If the competence is of the justice of the peace (thus in the case of a credit value equal to or less than 1,100 euros), the creditor can personally stand in court, without the assistance of a lawyer, as provided by article 82 of the code of civil procedure. Otherwise, it is necessary to consult a lawyer to establish the monitoring procedure.
What should be included in the petition for an Italian Injunction Decree?
The judicial application for the injunction decree must indicate, as established in articles 125 and 628 of the code of civil procedure, the following information:
- Judicial office/competent judge;
- Identification of the involved parties (generalities of both the creditor and the debtor, with name, surname, address, and tax code);
- Specification of the creditor’s lawyer (instead, in the case of personal constitution, it is necessary to indicate the declaration of residence or the election of domicile in the municipality where the judge’s office is established);
- Object of the request (i.e., the credit to be enforced, such as the payment of a sum of money or the delivery of goods);
- Legal basis of the request;
- Documentation and evidence to support the demand (e.g., invoices or promissory notes);
- Calculation of interest and expenses, if applicable;
- Request for provisional execution according to article 642 of the code of civil procedure (only if there are the prerequisites to have it);
- Conclusions in which the request for a payment injunction is reiterated;
- Proxy to the lawsuits;
- Signature of the creditor both in the original act and in the copies to be notified (if he is standing in court personally) or of the defense lawyer as an authorized legal representative (with tax code, fax, and PEC address).
The application drafted in this way, after being deposited in the clerk’s office along with the attached documents, cannot be withdrawn until the expiration of the term that will then be indicated in the injunction decree (generally 40 days), according to article 641 of the code of civil procedure.
What is the “provisionally executable” Italian Injunction Decree?
As we will explain in the following paragraphs, when the judge accepts the petition, he orders the debtor to provide for the payment of the sum or the delivery of the quantity of goods requested within a 40-day term. In some cases, however, the judge may issue a provisionally executable injunction decree, if requested by the applicant. This means that the creditor can begin to execute the decree before the final conclusion of the procedure, i.e., immediately (within 10 days from the notification of the executive title and the injunction). Obviously, the Italian debtor is granted the right to oppose the provisional execution. This situation can occur when the credit is based on a promissory note, a bank or circular check, a stock exchange liquidation certificate, or a deed received from a notary or other authorized public official.
Note that, even without the creditor’s request, the judge has the power to grant provisional execution if the following situations occur:
- There is a danger of serious prejudice due to the delay in payment;
- If the creditor attaches a document signed by the debtor in which the claimed right is proven. In addition, the judge may require the creditor to pay a guarantee; this as a guarantee of the restitution of the sum to the debtor, in the event that the latter has paid, but the decree has been revoked at a later time.
Remember that there are also cases of provisional execution ex lege; for example, we mention the case of a decree issued for the collection of rental fees due in case of default (article 664 of the code of civil procedure).
Filing the petition for an Italian Injunction Decree
Once the petition has been written, the applicant must deposit it at the competent court. We specify that, if it is the case of the Court, it is mandatory to make an electronic deposit. Once the judge has examined the petition, verifying all the requirements to be met, he will issue the injunction decree.
What can be the judge’s decisions?
After the deposit of the petition, the judge examines the request and makes his decision within 30 days. The latter can result in the acceptance of the petition, the request to provide further evidence, or the rejection of the petition. Let’s briefly analyze them:
- Acceptance of the petition: the request is well-founded and the judge issues the injunction decree. The content includes the order to the debtor to pay or deliver what is requested by the applicant and the term for proposing opposition (40 days or, in case of appropriate reasons and according to the circumstances listed in article 641 of the civil procedure code, 10 or 60 days) otherwise there will be executability of the decree. If the decree is provisionally executable, the payment order is without delay, except for the right to propose opposition within 40 days of notification. Finally, the liquidation of the lawyer’s expenses is included.
- Request to supplement the evidence in case the judge believes that the application is not supported by sufficient motivation: the applicant is invited to provide within a term, otherwise there will be a rejection of the request through a motivated decree.
- Rejection of the petition in case of lack of the required presuppositions/requirements (example, unenforceable credit, lack of proof of the same, etc.). Against this provision, the creditor is not granted an appeal; he may only re-propose a new petition for an injunction decree.
Notification of the Italian Injunctive Order to the Debtor and Commencement of Execution
Since this procedure, as we have seen, is conducted without contradiction (“inaudita altera parte”), the debtor (the so-called “injuncted”) finds out that a decree concerning them has been issued only through the notification made by the judicial officer. The application and the issued decree are notified in an authentic copy, while the originals are and remain deposited in the registry. It should be noted that, following the notification, the Italian injunctive order remains valid for 10 years.
- In the case of a non-provisionally executable Italian injunctive order, the notification must imperatively occur within 60 days of the deposit made in the registry, otherwise, it becomes ineffective. The notification date then determines the pendency of the litigation and leads to an interruption of the prescription. If there is no notification, the debtor may appeal to the judge who issued the decree and have it declared ineffective. If the notification is late (made after 60 days), the debtor may oppose the Italian injunctive order to request its ineffectiveness. If there are defects in the notification, the debtor can also make a late opposition.
Within 40 days from the notification, the debtor can fulfill the payment, propose an opposition, or do neither. In this case, the decree becomes definitive, and the creditor can request an executive formula be affixed.
This will be followed by the notification of the executive title and the injunction, and after 10 days, the commencement of forced execution.
- In the case of a provisionally executable Italian injunctive order, the notification must always be made within 60 days of the decree’s deposit in the registry, but since the decree is already an executive title, the creditor does not have to wait for the 40 days to pass nor verify the debtor’s failure to oppose to obtain the executive formula. In summary, the creditor can immediately notify a decree provided with an executive formula (along with the injunction) and can begin forced execution if the debtor has not fulfilled the payment after 10 days (and within 90 days of the notification).
What Does the Italian Debtor Risk by Receiving an Italian Injunctive Decree?
Let’s summarise the consequences the Italian debtor may face once the judge issues the Italian injunctive order. Firstly, the primary consequence is the legal obligation to honor the debt as established in the order. The debtor must comply within the terms, following the decided conditions. If they do not, the creditor can resort to different legal actions to recover what is due: for example, the seizure of the injuncted’s assets (after obtaining an order from the judge to seize and sell the assets). A second consequence is the registration of a mortgage on a property owned by the debtor, affecting their ability to make sales. This entails higher legal costs (accrued interests and expenses of the procedure). Another important consequence of the Italian injunctive order concerns the credit score of the injuncted, which could compromise their financial reputation; this could lead to difficulties in obtaining loans or financing.
How to Verify the Italian Debtor’s Ability to Pay?
It is advisable for the creditor to verify whether the debtor is in a position to pay their debt (“capacity”) before choosing the most suitable type of execution and which assets to target. This allows avoiding wasting time and money. Generally, it is checked if the Italian debtor owns real estate (preferably free of burdens or constraints). Useful in this regard is the mortgage inspection, which allows consulting the registers, notes, and titles deposited in the Conservatory. It can be seen if there are: transcriptions (foreseen for acts of transfer or establishment of rights on real estate), registrations (to ascertain if the debtor’s asset is burdened by a mortgage and to what extent, so as to proceed to real estate seizure), annotations (changes to previous transcriptions, like the cancellations of mortgages and seizures). It can be verified if the debtor has a registered movable asset (transcribed, for example, in the Public Automobile Register). Alternatively, one can search for assets to be seized through a request made to the President of the Court.
How Many Types of Execution Are There?
To execute an Italian injunctive order, there are different methods: the seizure of the debtor’s assets, the registration of a mortgage on property, or forced execution. The choice of the type of forced execution varies depending on the assets available to the debtor; hence it is crucial to perform the appropriate preliminary checks described in the previous paragraph. Let’s give some examples:
- if it concerns real estate, one can proceed with real estate execution (the most expensive);
- if it concerns salary, pension, or bank account, third-party execution is chosen;
- if it concerns movable assets, one can act with movable execution;
- if there are registered movable assets (such as a car), one can act with movable execution provided for in article 521 bis of the civil procedure code (different from the normal movable seizure).
It is useful to be assisted by a professional to assess the most suitable modality for the specific case.
How Can the Italian Debtor Act Upon Receiving an Italian Injunctive Decree?
As we mentioned in the previous paragraphs, the injuncted can propose an opposition to the Italian injunctive order in Court with a summons, within the prescribed times (article 645 of the civil procedure code). This instrument ensures the establishment of a true cognition trial (which leads to a prolongation of times and higher costs to bear). The debtor’s aim will clearly be to suspend the provisional execution (in the case of a provisionally executable decree) and obtain the revocation of the order. The court, after evaluating the issue, will issue a decision that may be subject to ordinary means of appeal.
How Long Does It Take for an Appeal for an Italian Injunctive Order?
The timing of each appeal varies in consideration of the complex profiles of the specific case and the workloads of each court. Usually, after the expiration of the terms indicated in the previous paragraphs regarding the characteristics of the decree and the possible opposition of the debtor, within three or four months, the execution procedure can begin.
What Are the Costs of This Appeal?
The cost of the procedure we have described can vary depending on the amount requested. According to the tariffs sanctioned by Ministerial Decree number 44 of 2014:
- from 225 to 810 euros if the procedure concerns credits up to 5,200 euros in value
- from 270 to 972 euros if the procedure concerns credits for a value between 5,201 and 26,000 euros.
One must also consider the assessments to be made. However, although it is the creditor who initially has to bear the costs, they can recover them from the debtor at the outcome of the procedure in case of acceptance of the injunction appeal. Briefly and by way of example, we also mention the unified contribution (which is halved for this type of procedure), the stamp duty, the expenses for copies and for notifications, etc.
Conclusions
If you want to request an Italian injunctive order, it is advisable to be assisted by a lawyer experienced in injunction procedures. Given the complexity of the checks we have described, a legal professional can help you best achieve your goal. For advice on the subject, you can contact our firm.
