Home About us References Practice Areas Laws & Regulations Articles Links & Partners Contact us & Map Monographs on demand Recouvrement des creances en Italie. Inkasso, Forderungsmanagement und Insolvenzrecht in Italien.

General remarks

- Statute of limitation - Under italian law, a company has in general 10 years to recover its debts.

- CISG (UN Convention on Contracts for the international sale of goods - Vienna Convention) - Italy is a founding party of this convention, which entered into force in Italy on 1st January 1988.

- Conservatory seizure of goods - Under certain circumstances the judge will issue a seizure order.It can take several weeks and the judge will normally hear the debtor prior to granting permission for a prejudgment seizure or garnishment. In practice such measure are not workable: first of all, the debtor is warned and can dispose of such assets as bank accounts and goods and secondly, the procedure can take some time with little hope of permission being granted.

- Retention of title - When a company sells under retention of title (ritenzione del titolo), the seller transfers ownership under the sospensive condition of a full payment of goods. The actual transfers of title does not take place until the moment that payment has been made in full.

In Italy, the retention of title mechanism is hardly ever used, as it requires compliance with strict formalities and is not very effective. The general conditions of sale should mention any such retention of title.

In insolvency proceedings the right is not exercisable.

- General Conditions of sale - The general conditions of sale (GCoS) must be obvious, readable and not ambiguous. We recommend that this document be made available to the buyer at the earliest possibile time. We would advise you toh ave the buyer sign the GCoS in the italian language for agreement.

Besides retention of title, the GCoS may include other important matters such as: interest, contestation period, delivery terms, forum, applicable law etc.

- To be valid the GCoS must signed and the original (not a facsimile) returned to the seller after each and every transaction.

- Statutory Interest - The statutory rate of interest is determined eache year by decree by the Ministry of the Finance and in 2004 the rate amounted to 2,5 %.

- Out-of-Court debt collecting costs - These costs cannot be collected.

Cheques / Drafts

The advantages of payment by cheques are that this manner of payment constitutes acknowledgement by the debtor of debt , provided that it bears the company stamp and the signature is legible.

There are several disadvantages,however: payment is not guaranteed, it is susceptible o fraud and (foreign) bank are slow to complete the payment.

We strongly advise that cheques/drafts be presented to the bank for collection, as opposed to payment under usual riserve. This means that you will receive payment only when the buyer has paid the cheque/draft into his bank.

Under usual riserve the bank pays you immediately , but can ask you to return the money if the buyer fails to pay.

This can occur months after the transaction has taken place.

Enforcement of foreign judgments -

- Today there are two main instruments simplifying the cross-border enfrocement of judgments in EU in civil and commercial matters.

- The first instrument is the 2001 Brussels 1 Regulation (EC Regulation No.44/2001). Under this, a court must issue a declaration of enforceability, or so-called exequatur, in order for a judgment from another Member State. The creditor seeking enforcement must request a competent court to under take a formal check of certain documents, which are mentioned in Brussels 1 Regulation. This court conducts the document verification on an ex parte basis and cannot examine on its own motion any grounds for non-recognition. The defendant can lodge an appeal against exequatur, which can be withdrawn on certain grounds, for example if the judgment is contrary to public policy of the member State of enforcement.

- By virtue of the italian procedure for the recognition and the enforcement of foreign judgments based on Council Regulation (EC) No.44/2001, the creditor’s italian lawyer sends request for enforcement to the Appeal Court (Corte d’Appello) where the debtor has his domicile, which includes such documents as:

1) a certified copy of the subpoena;

2) a certified copy of the notification of the subpoena;

3) a certified copy of the judgment of the court;

4) a certified copy of the notification of the judgment;

5) a certificate pursuant to art.5 of Regulation n.44/2001;

6) details of any interest due on the judgment and the interest rate;

7) a translation of all documents in italian language.

- The second instrument is the European Enforcement Order Regulation (EC Regulation No. 805/2004), which was introduced to abolish intermediate enforcement procedures like exequatur procedure. Under this, a judgment certified as an EU Enforcement Order in the Member State of origin can be enforced in all member States, apart from Denmark, without any need fora n exequatur in the Member state of enforcement. However, the application scope of this regulation is restrained to judgments based on uncontested claims.

- By virtue of the European Enforcement Order Regulation (EC Regulation No. 805/2004), the creditor’s italian lawyer requests the debtor to pay the overdue amounts by serving him an atto di precetto (writ) . Documents necessary for initiating this proceeding are the following:

1) Original of the judgment;

4) Original of the translation in italian of the judgment;

5) Original of the certificate of notification of the judgment;

6) Original of EU title certificate;

Upon receipt, the Italian court will verify that:

-the debtor was notified of the subpoena issued prior to judgment in a correct and timely manner (at least 4 weeks beetween notification of subpoena in Italy and judgment in the Netherlands, for example;for non appearance); and

-the judgment was notifiied in accordance with dutch law and it is executable.

-please note too that in Italy the above procedure to obtain an exequatur will take beetween 1 and 3 years.