Procedural steps
Article 543 of the Italian civil procedure code ('c.p.c.') deals with the attachment by a judgement creditor of assets that belong to the judgment debtor and that are in the possession of a third party and also with the attachment of debts owed by a third party to the judgment debtor.
As we explained in a separate article available at the following link https://www.hanoverbondlaw.com/2021/03/making-a-uk-money-judgment-enforceable-in-italy/, the last step that precedes the enforcement in Italy of a money judgment is the service on the debtor of the 'atto di precetto', essentially a final request by the creditor to pay the judgment debt within 10 days. Notably the atto di precetto expires after 90 days.
It is worth noting that the Agenzia delle Entrate (the Italian equivalent of the Inland Revenue in the UK) keeps a register of all bank accounts held by individuals and companies in Italy. After the atto di precetto has been served upon the judgment debtor, the judgment creditor can apply with the court to obtain that a court official performing the function of bailiff (unlike in the UK, in Italy bailiffs are not private individuals/companies) accesses the register to search for the debtor's bank account.
If the judgment debtor fails to make the payment then the creditor can proceed serving upon both the judgment debtor and the third party the 'atto di pignoramento' which contains the warning pursuant to Art. 492 c.p.c. not to dispose of the assets or credits.
This marks significant departure from the way this kind of enforcement is carried out in the UK, where the judgment creditor applies with court for an interim third party debt order that, when granted, is served upon the third party and the judgment debtor.
The atto di pignoramento also specifies the sums or assets that are being attached and provides the debtor with the creditor's contact information, including his certified registered email address and the place in the competent court district where the creditor has elected his domicile for the purpose of the enforcement proceedings (this is usually the address of a local lawyer).
Finally, the document must contain the summons of the debtor to appear before the competent court, setting the date of the hearing after at least 10 days, the invitation to the third party to provide the judgment creditor with the declaration in writing pursuant to Art. 547 c.p.c. (more on this below) with the warning that caveat that otherwise that same declaration will have to be made by the third party during a special hearing and that if the third party does not attend the hearing or it attends the hearing but does not make the declaration, then the debt or assets stated to be held by the third party in the atto di pignoramento are deemed to be acknowledged by the third party.
Once the atto di pignormento has been served upon the debtor and third party, the original of the summons that have in the meantime been filed with the court will be handed to the creditor by the court's bailiff without delay.
The judgement creditor must within 30 days of being handed the summons file with the court the 'nota di iscrizione a ruolo' (the formal entry of the enforcement proceedings into the court's registry).
Obligations of the third party
In accordance with Art. 547 c.p.c., the third party must render a declaration to the creditor in which it specifies which assets of the debtor it is in possession of or what sums it owes the debtor. The third party must also state if other enforcement actions have been previously made against the debtor and whether it consented to the release of assets or assignment of debts to other judgment creditors of the debtor.
If disputes arise on the declaration or if, as a result of the third party's failure to make such declaration, it is not possible to identify exactly the debtor's credit or assets, the court shall, on application by the creditor issue an order compelling the third party to provide such information after having ensured that the third party and the debtor were put in the condition to put forward their arguments.
From the moment that it is put on notice of the atto di pignoramento, the third party is required to comply with the obligations imposed by law to a custodian in respect of the assets or credits of the debtor that, by value, equal one and a half the amount of the credit the enforcement of which has been sought. The increase by one half is there to offer security for the costs of enforcement.
Credits that cannot be attached
Certain categories of debts of the third party towards the debtor cannot be attached.
These include maintenance payments (e.g. resulting from divorce proceedings) unless it is the actual maintenance payment that has been defaulted under forcing the payee to seek enforcement of the court order providing fur such payment.
Payments due on account of grants or subsidies to indigent individuals (there exists a register of officially poor people in Italy) or in respect of maternity leave, or on gifts made by charities or by funeral plans can also not be attached at all.
Wages can be attached by up to one fifth, unless the claim that is being enforced is for maintenance payment in which case it is at the court's discretion what proportion of the wage can be attached.
Pension payments can only be attached to the extent that they exceed the minimum state pension, and any such excess can only be attached up to one fifth, as with wages.
In the event that wages or pension payments have been credited to the judgement debtor's bank account prior to the enforcement, such sums can only be attached if they exceed three times the minimum state pension.
Originally Published by Hanover Bond Law, March 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
