CREDITS COLLECTION: INJUNCTION OF PAYMENT
The injunction proceeding is usually utilized by foreign creditors tocollect a credit. The request and all the subsequent stages are made electronically. In cerrtain cases, for creditors within the EU it may be more convenient to request an "European injunction of payment". But, in case of a possible opposition on the part of the debtor, it will not be possible to ask for the temporary enforcement.
The injunction proceeding can be utilized both by foreign creditors to collect their credits in Italy, and by Italian creditors against
Whereas the first case does not involve any specific questions in
respect of the existence of jurisdiction of the Italian courts, the
second case requires that Italian courts have jurisdiction upon the
foreign debtor. In this regard, a distinction must be made depending on whether the defendant resides within or outside of the European Union. If the injunction has been issued in spite of the fact that the Italian court does not have jurisdiction, an opposition against the injunction can be notified within the applicable term.
Utilization of the procedure to recover foreign credits in Italy
A foreign creditor can obtain from the competent Italian Court an injunction, ordering the payment of outstanding invoices, on the basis of written evidence. Therefore, in the case of a contract of sale of movable goods, in addition to the copies of the relevant invoices, the following documents should be exhibited:
a letter of the debtor acknowledging his debt; or
a copy of the relevant bills of lading, duly stamped and signed by the debtor, certifying the receipt of the goods.
In the absence of the two aforementioned documents, a copy of the customs declaration, relating to the clearance of the goods, is
usually accepted by Italian courts. Should not even the customs declaration be available, an excerpt of the foreign company's accounting books, duly certified by
a public notary and attesting the
existence of the credit, can be exhibited. The public notary should
also certify that the company's books are kept in compliance with the applicable accounting provisions. Nevertheless, such excerpts are not always accepted by Italian courts.
In addition to either of the above documents, a power of attorney shall be granted. The signature of the company's legal representative should be authenticated by a public notary or by the Italian Consulate. The power can be either in Italian, or in a foreign language, but in the last case a certified Italian translation should be joined.
The certification made by a public notary should be legalized through the "Apostille" (Hague Convention of 5 October 1965), if the aforementioned Convention has been ratified by the foreign country, or otherwise by the Italian Consulate. With certain countries (Austria, France, Germany, etc.) neither the Apostille nor the consular legalization is necessary.
The injunction must be granted within 1 month from the filing of the petition, and then be served on the debtor. The debtor can within the following 40 days either pay or lay an appeal against the
injunction. The above term applies, if the debtor is domiciled in
Should the defendant lay an appeal against the injunction, then an ordinary proceeding of first instance would follow. In such a case, if the appeal is not based on written evidence, the Judge can, at the first hearing, grant the temporary enforcement of the injunction.
Should the defendant not lay an appeal against the injunction, the injunction would become "res judicata". Once the enforcement formula has been affixed on the injunction, the execution of the debtor's assets can start. The first step would be to serve the debtor with a writ of payment, giving him a term of 10 days to execute payment. Should the payment not be made within such a term, then a seizure of the assets through the Court's bailiff can be requested.
It is also possible to obtain a temporary enforceable injunction, if certain conditions exist:
if the credit is based on a draft, or a check, or a deed made before a public notary or another authorized public officer; or
If the danger of a serious prejudice exists; or
If the claimant can exhibit any documents signed by the debtor, proving the credit.
Almost all the costs of the proceeding (including the attorney's fees) would be charged on the debtor.
Utilization of the procedure to recover credits against foreign residents
The same procedure can be utilized by Italian creditors to collect credits against debtors outside Italy.
The only difference is that, in such a case, the term to either pay or file an appeal against the injunction is 50 days for residents within the UE and 60 days for residents outside the EU.
The question is under which conditions Italian courts have jurisdiction against foreign debtors. The analysis will be limited to contracts of sales of moveable goods (i.e.: Italian seller - foreign buyer).
A distinction must be made according to whether the buyer is or not a resident of the EU.
a) Buyers outside the EU
In respect of a buyer outside the European Union, Italian jurisdiction exists on the basis of the criteria laid down by the Act 31 May 1995 no. 218 on the "reform of the Italian system of international private law". Nevertheless, the aforementioned Act provides that any different provisions laid down by international conventions shall prevail.
According to Art. 3(2) of the Act 1995 no. 218, when dealing with subjects included in the Brussels Convention of 27 September 1968 the Italian jurisdiction may also exist if the requirements of Sections 2, 3 and 4 of Title II of the Brussels Convention are satisfied, even though the country of residence of the party involved in the dispute is not a member of the Convention.
According to art. 5(1) of the Brussels Convention, the "court of the place where the obligation has been or must be performed" has jurisdiction (locus destinatae solutionis). The place of performance must be determined pursuant to the substantive law applicable to the dispute according to the domestic private international law.
With regard to contracts of international sale of moveable goods, the Italian private international law is based on the Hague Convention of 15 June 1955, which has a universal character and prevails over the Rome Convention of June 1980 and to which Art. 57 of Act 1995 no. 218 refers (this prevalence can also be inferred from Art. 21 of the Rome Convention). The Hague Convention of 1955 cannot be considered repealed by the United Nations Convention on Contracts for the International Sale of Goods of Vienna 11 April 1980 because the latter sets substantive uniform rules and not rules on private international law (in this regard: Tribunal of Padova, 25 February 2004).
According to Art. 3 of the Hague Convention, unless the parties have agreed otherwise in the contract, the law governing the contract is the law of the place where the seller has its residence.
If the seller is Italian, the locus destinatae solutionis (which is relevant pursuant to Art. 5 of Brussels Convention) must
therefore be determined according to Italian law. Since Italy has ratified the Vienna Convention of 11 April 1980 for the International Sale of Goods, Italian domestic law is substituted by the law
stated in this
Convention. The same Convention will apply (without the necessity of determining the substantive law applicable to the contract pursuant to the aforementioned rules), if the country of residence of the buyer is also a party to the Vienna Convention.
In both cases, to determine the place of performance of the obligation at issue (locus destinatae solutionis), it is necessary to refer, in the absence of any specific contractual provisions, to the rules of the Vienna Convention. According to art. 57 of the Vienna Convention, the price must be paid at the seller's place of business: therefore, in case of an Italian seller, in Italy. As a consequence, Italian courts have jurisdiction over the claim regarding the payment of the price, and can properly issue an injunction of payment against a foreign buyer.
The same considerations apply to the interpretation of art. 5(1) of the Convention of Lugano of 16 September 1988 that is still in force with countries that have ratified it and do not belong to the European Union (for instance Switzerland, Iceland and Norway).
b) Buyers in the EU
In respect of a buyer who is a resident of the European Union, Italian jurisdiction exists on the basis of the criteria laid down by the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, that has replaced since 1 March 2002 the Brussels Convention.
The Regulation provides the possibility of suing a person domiciled in a Member State before the courts of the place of perfo mance of the obligation that is the object of the claim, but, in comparison with the precedent text of article 5 of the Brussels Convention, it has identified a priori which the place of performance in the case of contracts the sale of movable goods is. Such a place is, unless otherwise agreed in the contract, the place in a Member State where the goods were delivered or should have been delivered. The place is to be intended as the place of destination provided by the contract.