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Last update: 02-04-2007
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Interim and precautionary measures - Italy

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TABLE OF CONTENTS

1. What are the different types of measures? 1.
2. List of precautionary measures. 2.
2.1. Atypical measures 2.1.
2.2. Typical measures (where the content is determined by law) 2.2.
3. What are the conditions under which such measures may be issued? 3.
4. Characteristics of the measures 4.
4.1. What types of assets can be subject to such measures? 4.1.
4.2. What are the effects of such measures? 4.2.
4.3. What is the validity of such measures? 4.3.
5. Is there a possibility of appeal against the measure? 5.

 

1. What are the different types of measures?

The Italian trial system has a number of instruments governed by different sets of rules that can be viewed as interim or precautionary measures. These measures can be defined in terms of their objective, which is (a) to anticipate, as a provisional or emergency measure, the possible content or effects of a decision that will be taken at the end of the main proceedings (interim measures), or (b) to preserve a particular state of affairs until the main proceedings have been concluded to ensure that the proceedings can have the practical effects that would otherwise be rendered pointless by any change in the matter at issue (precautionary measures), or even (c) to provide an immediate remedy to existing situations of danger or where damage is being caused (interim or precautionary measures, depending on the type of measure adopted).

There are factors common to both interim and precautionary measures. They simplify and speed up procedures, they tend to be provisional and they have are instrumental to the case. However, this instrumental relationship is not an essential characteristic; a reform in 1990, subsequently reviewed in 2005, incorporated a basic standard set of rules for interim measures in the Code of Civil Procedure. According to this procedural model, which provides the basis for every interim measure (whether provided for under the Code of Procedure itself or governed by specific laws), in certain specific cases the measure may not be followed by a trial judgment or consequent measure; in these cases the interim measure finishes up actually purely as an established protective measure (for example, where the subject required to comply with a measure does so voluntarily; legislation adopted in 2003 expressly applies the same provisions to proceedings involving commercial, financial intermediary and credit companies).

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As this uniform interim procedure tends to serve as the point of reference for all measures, the subsequent analysis will basically focus on this model.

Interim and precautionary measures are ordered by a judge (cf. answer to question 3). They may be adopted whenever they become necessary, be it before or during the main proceedings. A distinction can be drawn between “typical” measures, where the content of the measure is determined by law, and “atypical” measures, where the law gives the judge discretion to decide the most appropriate way to safeguard the rights of the person lodging the action (cf. answer to question 2).

At a formal level the procedure is simplified and expeditious, as it needs to overcome “any unnecessary formality” (under section 669-sexies of the Code of Civil Procedure). However, it also guarantees that the principle of adversarial proceedings is upheld (which is underlined in the new wording of Article 111 of the Constitution). The judge must hear the parties and compare their positions and may order any checks he deems suitable before ruling for or against the applicant. Only in exceptional circumstances where it is a matter of urgency is it possible to adopt a measure without holding a hearing first.

2. List of precautionary measures.

2.1. Atypical measures
  • Emergency measures:

These measures may be adopted in cases where there is no other suitable (“typical”) instrument. The exact nature of the measure is not predetermined; its content is at the judge’s discretion (although, obviously, measures cannot be adopted that are prohibited by law or that contravene constitutional principles). The aim of the measure is predetermined, however, as the law requires the judge to order measures that seem likely “to avoid imminent and irreparable damage” (section 700 of the Code of Civil Procedure) in the specific case while “provisionally safeguarding the effects of the decision on the case”. The person applying for the measure must identify the facts of the case and the law applicable, as the judge’s order is instrumental to the main proceedings that will follow. For this reason, the final decision is said to “absorb” the preventive measure.

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2.2. Typical measures (where the content is determined by law)
  1. Interim seizure order:

An interim order for the seizure of assets (movable objects, immovable objects and companies), the ownership or possession of which is at issue. The measure ensures custody of the assets.

  1. Mareva injunction:

A Mareva injunction stops a party disposing of assets (movable or immovable) or sums of money. The injunction is issued to protect creditors who have justifiable fears that their loans will no longer be guaranteed. It has recently become possible to issue a Mareva injunction against anyone failing to provide due maintenance for their separated spouses.

  1. Measures to safeguard possession:

These measures are invoked where a person wishes to protect an asset against a threat or nuisance or where an applicant asks for ownership to be restored.

  1. Quia timet injunction:

In the same way as the previous measure, the quia timet injunction is intended to preserve the status quo by preventing a threatened action (by others).

  1. Precautionary investigation measures:

Precautionary investigation measures are strictly procedural and relate to evidence. At any point in proceedings, where there is a need to obtain evidence immediately and there are grounds to fear that, for any reason, it might be impossible to do so at a later stage, the judge may issue a reasoned order for witnesses to be questioned or technical investigation operations or inspections to be conducted.

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  1. Suspension of the effects of a contested judgment that is provisionally enforceable:

This is a preventive measure in the broad sense of the term. While a court of first instance judgment is enforceable under the law, an appeal court judge may suspend its effects where it is felt there are serious grounds for doing so.

  1. Provisional measures during marriage separation proceedings:

These measures are designed to provide an immediate remedy, in relation both to the persons and to the property involved, to situations of conflict between the parents and prevent possible harm to their children, who may be without suitable control and sufficient means.

  1. Order to pay alimony:

An order to pay alimony is issued to the person required to pay alimony during proceedings.

  1. The affixing or removal of seals:

These measures are adopted in disputes regarding assets that belonged to deceased persons.

  1. Injunction preventing a concentration of press titles:

The injunctions are issued at the request of the Press Ombudsman pending rulings in anti-trust proceedings.

  1. Injunction preventing unfair competition:

These injunctions are issued to prevent violations of rules on competition (rules on brand names, poaching customers, etc.)

  1. Orders to refrain from applying unfair or oppressive clauses in contracts concluded by companies:

These orders are issued at the request of consumer groups or Chambers of Commerce that have applied for contractual clauses to be declared unlawful.

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  1. Orders to employers to pay employees a provisional sum:

The orders are issued where the amounts are not contested or have been definitively established in employment proceedings.

  1. Temporary measures regarding abandoned minors:

These measures are adopted pending custody rulings.

  1. Order to publish a correction to articles published in newspapers or magazines or broadcast on the radio or television:

The order is issued in relation to a ruling that must follow concerning the publishing of incorrect information.

  1. The award of damages:

Damages are awarded to a victim of a road accident who is in need where a summary examination of the facts reveals that the other person was liable.

  1. Suspension of the effects of a decision taken by a company general meeting:

This preventive measure is adopted where a decision taken by a limited company results in a violation of the law or the company’s articles of association.

  1. Order for the inspection of the files of a limited company:

At least one tenth of the holders of the company’s stock must apply for such an order, which is issued in connection with a ruling regarding the responsibility of the company’s management.

  1. Order to re-instate union representatives:

The order is issued where union representatives have been dismissed without due cause.

  1. Preventive measures ordered by a bankruptcy court:

There are various measures aimed at safeguarding the interests of creditors in bankruptcy proceedings.

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3. What are the conditions under which such measures may be issued?

Must judicial authorities always authorise the use of the measure?

Normally by their very nature interim measures are temporary, but they alter or in some way have an effect on the rights or situations of individuals involved in a dispute and therefore, according to the Constitution, may be issued only by judicial authorities (thereby excluding any authoritative act by private individuals, who may not take the law into their own hands).

Which judicial authorities may order interim measures? Where the measure is requested independently prior to the main proceedings, the application is assessed by the judge to whom the case has been assigned under the general rules of procedure (apart from justices of the peace, who do not have the power to take such decisions; in this case the matter is referred to the District Court). Where the measure is applied for during the main proceedings, it is referred to the presiding judge. There are specific rules governing applications involving judgments by foreign judges. Furthermore, there are rules determining the powers of specific judicial authorities (e.g. measures relating to unfair competition described in section 2.2.11 are referred to the Court of Appeal, while measures regarding spouses and children (section 2.2.7) are referred to the President of the District Court).

What is the role of intermediaries, for example, bailiffs? The constituting of the court initiates a direct relationship between the judge and the parties. However, there are occasions where judicial ancillary staff (bailiffs) are involved in the implementation of interim measures, such as interim seizure orders or Mareva injunctions, as they are implemented in much the same way as enforcement measures relating to assets, and therefore provision is made for the involvement of other ancillary public authorities.

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Give an indication of the costs borne for each type of measure. As with every judicial measure, when the main or interim proceeding is entered in the list, the applicant pays a contribution or the Inland Revenue (Tax) Office. The amount is predetermined and varies depending on the nature and cost of the procedure. The relationship between the parties and their defence counsels is usually a matter for the parties concerned, although reference tables exist that are drawn up at regular intervals by the profession and approved by order of the Ministry of Justice. The tables indicate minimum and maximum fees and charges, and are binding when it comes to determining expenditure incurred by the losing party in certain cases where judges adopt a measure (for example, if the judge rejects the application for an atypical emergency measure and thereby concludes the pre-trial proceedings).

Describe the factual requirements. On what criteria does the District Court base its decision to issue an injunction or order?

If a credit is claimed, must the case be questionable?

Must there be an emergency?

Must it be demonstrated that it will be impossible to take the final decision because the debtor’s assets have been moved or have disappeared? As a rule, anyone applying for an injunction must prove that a change in circumstances or rights is taking place or is about to take place, and that the situation may well damage the applicant’s interests, i.e. the situation calls for the removal of the threat or measures to prevent further damage until the main case has been concluded. Account must be taken of the risk of delays (in adopting the measure). Each measure, in accordance with the law governing it, sets out its field of application in relation to the type of rights that must be safeguarded (e.g. new works on real property; the need for a structure for relationships with children, provisional measures; damage to business, preventing unfair competition, and so on).

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The principle of the requirement of danger also applies where the applicant’s situation is aggravated or continues to deteriorate, for example, if the debtor continues to remove and thereby diminish his assets. However, indications are not in themselves enough; there must be fairly concrete evidence that emergency measures are needed.

4. Characteristics of the measures

4.1. What types of assets can be subject to such measures?

Bank accounts? – Movable assets? – Registered means of transport? – Immovable property? – Other assets?

Interim measures may cover any type of asset. The law determines the constraints within which the measure may be applied. Within this framework the judge decides whether assets may be the subject of an injunction on the basis of whether they provide guarantees for the creditor or - especially in relation to “atypical” measures - what is needed to provide a temporary safeguard.

In the case of seizures, which are largely governed by the same procedures that cover enforcement, the objective criteria of liability to distraint apply, i.e. the possibility of seizure assets in personal or current use belonging to the person against whom the measure is directed. In particular, current accounts may be frozen or a ceiling may be set for accessibility. A vehicle may be seized only under certain conditions.

In any case, the essential criterion is that the situation to be secured - the objective of the measure - is not undermined. Therefore the sale of immovable property and vehicles does not help the creditor and may impose a responsibility on the debtor, as well as on the purchaser if he has not taken the trouble to find out about the injunction or has chosen to ignore it, always assuming that details relating to the articles in question can be found in the public registers. If the debtor sells any other article (e.g. articles of value), the creditor may recover the items by means of a recovery action in rem.

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4.2. What are the effects of such measures?

On the debtor who fails to comply with the order? May he still dispose of his assets? Can he be punished? What are the bank’s obligations regarding the disclosure of information and freezing current accounts? What are penalties for failing to comply with the order?

Further to section 4 above, failure to comply with measures to safeguard the creditor’s guarantee first and foremost puts the defaulting party under an obligation to compensate the other party. Clearly, it will be necessary to refer to the content of the order to verify any compliance failure regarding the disposability of the article.

Where it can be proved that the person against whom the order was issued acted in bad faith or was otherwise culpable, in response to an application by the other party the judge may require the offending party to pay costs and compensation for the damage, and this requirement will be formalised in the judgment.

If the enjoined person fails to comply with the injunction, the judge may adopt other preventive or enforcement measures before the end of the trial. Where failure to comply involves deceit, the offender becomes liable under criminal law.

The bank where the account is held may inform third parties only that the funds are not disposable, but must treat the reasons for the freezing of the account as confidential.

4.3. What is the validity of such measures?

Does the law normally set a time limit or must the judge set it in the order?

Does the order apply until the judgment is pronounced or a fresh order issued?

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Where an order has been issued without adversarial proceedings having been held, is there a time limit for summoning and hearing the parties?

As stated in section 1 above, as an interim measure is usually instrumental to the subsequent trial proceedings, the order normally applies until the judgment is pronounced.

However, the judge may alter the time limits, impose another order or reverse the initial measure, even during the trial, depending on the facts of the case. He may also require the applicant to lodge a security to guarantee that the parties are treated equally if it subsequently emerges that there were no grounds to impose the measure. By the same standard, an initial rejection of an application does not prevent interim measures being adopted at a later date, if a fresh application is lodged and it is established that the changed circumstances merit the adoption of the measure.

If the interim measure has been adopted without a hearing having been held (an exceptional case, see section 1 above) and has been justified solely on the grounds of urgency, in the measure (which, in these circumstances, is a decree rather than an order) the judge must require the parties to be heard within no more than 15 days, giving the applicant a fixed period of no more than eight days to give notification of the measure. At the hearing, the parties are heard by a simplified and informal procedure (see section 1 above), after which the judge confirms, amends or reverses the initial measure.

5. Is there a possibility of appeal against the measure?

Who may challenge the order?

Which judicial authority hears the appeal?

What are the time limits for an appeal?

What is the effect of the appeal?

An appeal against an application granted or rejected can be brought before the District Court by one of the parties (depending on the interests concerned and the type of measure taken) within 10 days from the notification of the measure. The Court delivers its ruling sitting as a bench. If the measure has been ordered by the Court of Appeal, the appeal is lodged with another section of the Appeal Court or, if this is not possible, with the nearest Appeal Court. In any event, the decision to confirm, amend or reverse the initial measure is taken in chambers.

An appeal does not suspend the implementation of the measure and the ruling on the appeal is not contestable. However, if further evidence emerges that the measure is seriously damaging to the person on whom it is imposed, the judicial authorities hearing the appeal may suspend it or order that suitable security be lodged, as an alternative.

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Last update: 02-04-2007

 
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