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Enforcement enables a creditor (a private individual or company) to obtain what he/she is due from another person as a result of a court decision (or of specific acts deemed by law to be comparable to court decisions).
Enforcement is therefore a procedure, regulated by law in various ways, depending on the nature of the claim, i.e. of what is due to the person who invokes the procedure to enforce his/her claim on the debtor (the various methods are set out in the section 1.1). By their nature enforcement procedures involve public bodies under the supervision of a court which is asked by the parties concerned to ensure compliance with the rules of procedure laid down by law.
Depending on the content of the measures (court rulings or other measures that have the same value as rulings when it comes to enforcement), there are different methods of enforcement that must be implemented to enforce the creditor's claim. Enforcement procedures take the following forms:
On the basis of a principle to which there are no exceptions, two conditions must be satisfied before decisions become enforceable, a formal condition and a substantive condition. The formal condition is that an enforceable decision must have been taken, i.e. an act or judicial decision that must by law be enforced. The substantive condition relates to the content of the decision, which must, by law, relate to a claim that is “certain, fixed and due”. The need for certainty is obvious, as no enforcement can take place when it is uncertain whether a debt exists or what it consists of. The need for it to be fixed and due is a initial prerequisite for enforcement, as an order contained in a court decision cannot be followed if there is no practical way of implementing it (the amount of money owed that the debtor owes the creditor, the nature of the item to be handed over, the conduct required, etc., see 1.1 above), or whether the established debt is not due because a further legal condition must be met. If these conditions are not met but enforcement proceedings have already begun, the process may be supervised by the court (see section 4).
The decision (i.e. the judicial instrument issued in accordance with the law) allowing enforcement may be of a judicial or non-judicial nature.
Judicial decisions include all decisions and measures taken by a court in relation to trial proceedings that must be enforced by law:
Non-judicial decisions consist of documents drawn up out of court which give an entitlement to persons who assert their claims and, according to the law, have a special “force” owing to their nature and the rules governing their use in legal relationships, particularly with regard to the speed of exchanges. In terms of this aspect of the enforcement proceedings this makes them the equivalent of judgments and other enforcement court measures. They are mainly bills of exchange and forms of credit that are expressly enforceable under the law (promissory notes, banker's drafts and instruments issued by certain banks), tax demands rendered enforceable by the tax authorities, contractual documents received by a notary public expressing the will or obligation to pay a sum of money (but not obligations to act or refrain from acting), and, following the 2006 reform, parts of authenticated private documents relating to payment obligations.
It is not necessary to obtain the court's authorisation to initiate enforcement proceedings, as the nature of the claim has been established in the decision or instrument (see 2.1.1). It is enough for the Clerk's Office at the court responsible for enforcement to check that the claim is formally in order and to affix the “order for enforcement”, i.e. a formula laid down by law requiring public bodies to act in accordance with their field of competence (judicial bodies and enforcement bodies, which are called on to provide assistance where necessary). To this end the formula must be in the form required by law and must bear the Clerk's Office seal. Similar rules apply to other documents received by a notary public (see above, 2.1.1).
The court of first instance with general jurisdiction is materially responsible. Justices of the peace, who are required to deal with common social cases that do not involve large settlements, are not allowed by law to enforce decisions. Once the type of material responsibility has been established, territorial responsibility must be assigned. Where enforcement involves movable or immovable assets (see 1.1, subsections a) and c)) responsibility lies with the court where the assets are located; where enforcement concerning claims involving third parties (see 1.1, subsection b)) responsibility lies with the court where the third party resides; where enforcement involves obligations to act or refrain from acting (see 1.1, subsection d)) responsibility lies with the court where the obligation must be met. Material jurisdiction as laid down by law may not be amended by agreement of the parties, as it relates to the division of labour within the judicial organisation and therefore the decisions have been taken in the general interest. However, the rules on territorial jurisdiction do not have the same force, since they are drawn up in the interest of the parties involved in the proceedings, who may, with certain exceptions, reach a different agreement.
Enforcement is entrusted to bailiffs, public officials who are members of the judicial administration. Bailiffs take the action necessary to enforce the decision, with assistance, where needed, from other persons, such as experts who determine the value of assets or custodians or administrators of assets that must be held in custody or administered. Recent reforms in the enforcement procedure regarding immovable assets allow the court to entrust operations relating to the sale of the assets to notaries public. However, any action assigned to public enforcement agents may be supervised and directed by the court. Therefore, wherever problems or conflicts emerge, the bailiffs, the notary public or the parties inform the court directing enforcement, which then summons the parties and issues the appropriate instructions.
Enforcement proceedings are structured in the same way as trial proceedings because they are ordered by a court. They are conducted on the basis of instruments which are issued or authorised by the court that has heard the parties in adversarial proceedings and may give rise to actual trials (see section 4). In view of their nature, therefore, defence counsel is always required in enforcement proceedings.
There are no fixed rates set for the various forms of enforcement. The costs of the proceedings may vary according to the complexity of the action taken (it may be necessary to have assets valued, to appoint administrators or custodians, who are entitled to remuneration, to advertise auctions in newspapers or on websites, and so on). As a general rule, the enforcing creditor pays the costs in advance and they are subsequently charged to the person on whom the decision is enforced. As regards legal fees, the professional rates (which must be paid by law) are based on extremely precise rules and lay down the minimum and maximum amounts to be paid to the defence counsel, depending on the type and value of the case.
The formal and substantial conditions governing enforcement and the classification of enforcement orders are set out above (see question 2.1.1). Under Italian law, a further condition must be met that does not really relate to the enforcement procedure but precedes it. Before starting the procedure the creditor must sent the debtor a document, known as a precetto (writ), in which he/she calls on the debtor to fulfil the obligation incumbent upon him/her in the decision (judgment etc.) voluntarily, sets a date and advises the debtor that failure to comply will result in the enforcement of the decision. The aim is to give the debtor a deadline by which to comply with the judgment voluntarily and thereby avoid the enforcement of the decision, while setting a date for the creditor (ninety days) within which enforcement must be initiated.
In principle, all movable and immovable assets and all the creditor's outstanding claims can be subject to enforcement, as they comprise the creditor's security. The law, however, expressly provides for a large number of exceptions that take account of the nature or function of the assets. According to traditional case law, certain highly personal types of assets may not be subject to enforcement. They include items needed for worship, items that are essential for the debtor's daily life (clothes, electrical appliances, domestic furniture, etc.), unless they are items of considerable value, and personal documents (letters, manuscripts, etc.), unless they are part of a collection. Restrictions are also imposed on social grounds. Employees’ claims for payment on public or private-sector employers may be subject to enforcement only within certain limits, depending on the case in question (generally one fifth, but there are special rules governing different categories of employees), to enable the employee/debtor to cover the basic cost of living. Similarly, the tools, objects and books that are essential for the debtor to be able to exercise his profession may be subject to enforcement only within very strict limits. Certain claims may not be subject to enforcement, such as welfare benefits for people in need or invalids, maintenance payments, i.e. sums payable by one family member to another (by parents to children, one spouse to the other, etc.), where the person is in need and is lacking financial means. There are further limitations, set out under specific rules to ensure needs are met that are held to prevail over the creditor's interest. The most important include situations involving enforcement where the debtor is a public administration: in such cases special rules require that 1) in some circumstances enforcement may not be started before a certain time has elapsed to enable the administration to complete the accounting procedures required by law of public bodies, 2) that certain public funds intended to meet priority social needs (e.g., funds to anti-drug measures) may under no circumstances be subject to enforcement. Finally, there are rules preventing enforcement involving certain special securities, such as shares or holdings in cooperatives to ensure that extraneous parties cannot gain entry into the cooperative by means of enforcement (rules of “approval”).
Enforcement procedures are based on conditions imposed on the debtor's assets. The bailiffs, issued with an enforcement order, search for the asset or sum of money at the debtor's house, on his/her person or at the premises of third parties. They may have access to the home and, where they encounter obstacles, they may overcome the debtor's resistance, where necessary with the assistance of the forces of law and order. Once the asset has been identified, it is attached. This is the first stage of the enforcement process. Attachment is an order issued to the debtor to refrain from taking any action, from that moment on, with regard to the asset that may result in the removal of the asset from the procedure. In the case of immovable assets, the attachment is noted in the properties register, which makes the fact known to third parties. The bailiffs then consign the money, documentary credits and precious objects they have found to the Clerk of the Court. Any other items, most notably immovable assets, are entrusted to a custodian (or, under certain conditions, to the debtor, for example, if the debtor lives in the property). In any event, the court responsible for enforcement gives the custodian or administrator of the assets suitable instructions pending the sale or assignment of the asset to the creditor. These instructions must be followed, and the custodian or administrator are liable under civil law (for any damages) and under criminal law, on the basis of various provisions in the Criminal Code, if items are removed, destroyed or allowed to deteriorate as a result of acts committed voluntarily or acts of negligence.
Attachments are not irreversible. At the debtor's request, the court may substitute attachment of a sum of money made available by the debtor for the attachment of assets (or claims on third parties). The sum may be transferred in instalments. Moreover, if the value of the assets exceeds the amount of the claim to be enforced and the costs of the procedure, the court will order the reduction of the attachment, excluding certain items or parts thereof.
The assets are attached pending completion of the enforcement procedure, with the consequence that any subsequent acts relating to the assets, even if formally valid in themselves, have no effect in relation to the enforcement, which proceeds and is concluded independently of them. The same liability borne by custodians and administrators (see above, 3.2.1) applies to bank staff, who are not allowed to provide information about conditions imposed on deposits, current accounts or securities without prior authorisation from the enforcing court.
As stated in response to question 3.2.1, enforcement prevents the debtor from disposing of assets (or restricts disposability to the limits imposed by the court). This obligation is intended to ensure that the creditor's claim is honoured and therefore applies until the assets are sold or transferred to the creditor. Once the assets have been attached, the enforcing creditor must request that the formalities needed for the satisfaction of the claim be continued within certain periods of time. If the deadlines expire without any request for the sale or assignment of the assets, the attachment becomes without effect and the procedure lapses (a new enforcement procedure may be started).
Enforcement procedures are controlled by the courts. A person against whom enforcement is sought may appeal to the court to exercise said control by opposing the enforcement. Representations may be made by the debtor or any party suffering injury as a result of the creditor's actions (for example, where parties claim that the assets subject to enforcement actually belong to them). Enforcement may be opposed prior to or during the enforcement proceedings. Reactions by the debtor and third parties are called representations against enforcement where they deny the right to enforce the claim, or to proceed, on subjective or objective grounds. Appeals are also allowed where individual acts pertaining to the enforcement procedure contain formal irregularities. In this case, the instrument is known as an appeal against the enforcement act.
In the first case (representations against enforcement) the court responsible for cases in the area involving the sums in question hears the representation in ordinary independent proceedings and then rules. Representations against acts of enforcement are made to the court responsible for the enforcement, which examines the applications and delivers judgment. In both cases the only appeal permitted against the judgment is to the Court of Cassation (following the 2006 reform).
Representations against enforcement may be made prior to and during the procedure. There is therefore no specific time limit. However, there is a natural deadline, namely the conclusion of the enforcement procedure. Representations against acts of enforcement, on the other hand, must be made within five days of the performance of the contested act.
Where there are serious grounds for doing so, the court suspends enforcement and orders the measures necessary to prevent undue injury. If the enforcement procedure has reached the stage where the proceeds are being distributed, suspension is mandatory.Top
Last update: 16-10-2007