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Last update: 20-09-2007
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Simplified and accelerated procedures - Italy

 

Order-for-payment procedures

1. Existence of an order-for-payment procedure

Is there a simplified procedure specifically for recovering claims that are unlikely to be contested by the debtor (an order-for-payment procedure)?

Yes. It is a summary procedure that may be contested or deferred. The sum must be available, i.e. the amount must be known. Written proof of the claim must be supplied. Any document will suffice, even if it does not have absolute evidential value (e.g. a commercial invoice is deemed to provide proof). If the court hearing the claim (the justice of the peace or an ordinary court, depending on the value of the claim) believes it to be well founded, it will order the debtor to pay the sum within 40 days of notification (by the claimant) but must point out that an appeal may be lodged within the same period and that, if no appeal is lodged, the order becomes final and enforceable.

If the enjoined party contests the order, the case is heard under the ordinary procedure.

1.1. Scope of procedure

a) What types of claims are eligible (e.g. only pecuniary claims, only contractual claims, etc.)?

The procedure applies to claims by creditors owed money or a specific quantity of fungible goods or by anyone with the right to receive a specific movable asset.

b) Is there an upper limit regarding the value of the claim?

No.

c) Is the use of that procedure optional or obligatory?

The use of the payment order procedure is optional. Creditors or persons with the right to receive specific movable assets may always bring an ordinary action.

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d) Is the procedure available if the defendant lives in another Member State or in a third country?

Yes. Legislative Decree No 231/2002 repealed the provision that prohibited payment order procedures where notification to the defendant had to be served outside Italy or outside territories under Italian rule.

1.2. Competent court

Which court must be contacted to obtain an order for payment? Is the order-for-payment procedure subject to the general rules on jurisdiction or do special rules apply?

The order-for-payment procedure is subject to the general rules on jurisdiction, which are based on value and territoriality.

Cases regarding movable assets with a value not exceeding €2 582.28 are heard by the justice of the peace. Where larger sums are involved, the case is heard by a court of justice presided over by a single judge.

Claims concerning fees for legal services, out-of-court services or the reimbursements of costs of lawyers, bailiffs or anyone else who has rendered services in the course of legal proceedings are examined by the court which heard the creditor’s claim.

Under Section 637 of the Code of Civil Procedure, lawyers and notaries public may also apply for orders for payment against their own clients to the court with jurisdiction for the value of their claim at the place of the bar council of which they are members.

1.3. Formal requirements

What are the formal requirements for applying for an order for payment?

a) Is the use of a standardised form obligatory?

No, there is no special form. The claimant can file an application, which can be drafted as a summary as long as it is accompanied by the documents required under Sections 634, 635 and 636 of the Code of Civil Procedure.

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b) Do I have to be represented by a lawyer?

Where the value of their cases does not exceed €516.46, parties do not need to be represented by a lawyer when appearing before a justice of the peace. The justice of the peace may also allow the parties to represent themselves, even where the amount involved is greater but the case still falls within his/her jurisdiction. Parties must be represented by lawyers before a court of justice.

Parties qualified to act in their own defence before the court may act as litigants in person and do not need to appoint another defence counsel.

c) In how much detail do I have to describe the reason for the claim?

No great detail is needed. The application must set out the reasons for the claim but may do so in the form of a summary.

d) Do I have to present written evidence of the claim at issue? If so, which documents are admissible as proof?

Written proof is needed. However, for the purposes of orders for payment, any document may constitute proof, irrespective of whether it originated with the debtor or a third party, provided that the court considers that it demonstrates the rightfulness of the claim.

The following documents are considered suitable proof: policies, unilateral promises privately made and telegrams. In the case of business claims, suitable proof can be provided by authentic extracts from accounts relating to the supply of goods and money or to services provided to persons who do not engage in business activities. Commercial invoices also constitute suitable proof but, if the claim is contested, they are not considered to provide proof of the issuing party’s case.

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Claims relating to fees for legal services, out-of-court services or the reimbursement of costs of lawyers, bailiffs or anyone else who has rendered services in the course of legal proceedings, i.e. fees and reimbursements due to notaries or providers of other freelance services, must be accompanied by the bill of costs signed by the claimant and the opinion of the appropriate professional associations.

Claims by the State or public authorities are covered by special rules.

1.4. Rejection of application  

Under what circumstances are applications for orders for payment rejected? Does the court examine the evidence supporting the claim before issuing an order for payment?

The court will reject the application where it feels that the documents submitted do not prove the claim.

However, before making a ruling, if the court holds that the application is insufficiently substantiated, it may instruct the clerk of the court to call on the parties to produce suitable evidence. If the claimant fails to respond or withdraw the application or if the application cannot be accepted, the court rejects it by a reasoned ruling.

In such cases, the application may be re-submitted, including via the ordinary procedure.

1.5. Appeal

Can claimants appeal against the rejection of their applications?

No. The rejection may not be contested by ordinary appeal or in cassation.

1.6. Statement of opposition

Where the application for a payment order is accepted, how long does the person ordered to pay have to contest the claim? What are the formal requirements?

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If the court accepts an application, it issues an order for payment that must be served on defendants in Italy within 60 days of the ruling and, all other cases, within 90 days. Where notification does not take place within the stipulated time limit or not served at all, the party not notified may ask the court to declare the order null and void.

The court orders the other party to pay the sum owing or to hand over the item or quantity of items within 40 days of notification of the order, but it must point out that an appeal may be lodged within the same period and that, if no appeal is lodged, the injunction will be enforced.

Where there is sound reason for it, the deadline may be shortened to 10 days or increased to 60 days.

If the defendant lives in another EU country, the deadline is 50 days and may be shortened to 20. If the defendant lives in another country, the deadline is 60 days but cannot be shortened to less than 30 or increased beyond 120 days.

The order may be challenged before the issuing court by means of a document instituting proceedings which must be notified to the claimant at the address indicated in the application. 

The court instructs the clerk’s office to note the fact on the original order.

1.7. Effect of statement of opposition  

What happens if the defendant contests the claim within the required time? Are ordinary proceedings opened automatically or only on application by the parties?

An appeal gives rise to ordinary independent cognizance proceedings aimed at establishing the existence of the claim that the claimant tried to enforce by means of a payment order. The minimum period before an appearance in court is halved.

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The court must rule on the claim enforced by means of the payment order on the basis of the evidence taken and, where the claim is justified, it must accept the application, even if the order was not correctly issued.

1.8. Effect of lack of statement of opposition  

What happens if the defendant fails to contest the claim within the prescribed time?

a) What needs to be done in order to obtain an enforceable decision?

If the defendant does not contest the ruling, the order becomes enforceable.

If no defence is lodged within the prescribed time or if the defendant fails to appear before the court, the court that issued the order will declare it enforceable, even in response to a verbal application from the claimant.

Where a defence is lodged after the deadline required by law or where the defendant appears late or fails to appear before the court, the court will declare the appeal to be inadmissible or to have lapsed, with the result that the order challenged will become enforceable.

b) Is this decision final or is there still a possibility for the defendant to appeal against that decision?

An appeal may be lodged against the decision in accordance with the normal rules.

Where the claim is for less than �1 100.00 and the justice of the peace ruled before 2 March 2006, an appeal may be brought before the Court of Cassation only if Community, constitutional or procedural rules have been breached or, as the judgment concerns equity,  the principles underlying the substance of the case have been violated.

The reform recently introduced by Legislative Decree No 40 of 2006 amended the rules on contesting equity judgments, allowing appeals only if procedural rules, constitutional law or Community law have been breached or the principles underlying the substance of the case have been violated. The new rules apply to all judgments delivered as of 2 March 2006 (Section 27).

Sources of legislation: Sections 633 to 656  of the Code of Civil Procedure

Useful links: http://www.giustizia.it/sito_trad_inglese/en_index.htm 

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Last update: 20-09-2007

 
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