ITALY Law and Practice Contributed by: Francesco Dialti, Vincenzo Cimmino, Valentina Bombino and Lucrezia Ghezzi, CBA Studio legale e tributario
Receivables Receivables that can form the subject of a security interest include: • rental income; • insurance proceeds; and • receivables arising from share/asset purchase agreements. Security over receivables can be granted in the form of an assignment by way of security or of a pledge. The perfection of the pledge requires the notification of the pledge to, or its acceptance by, the relevant debtor (with a document bearing a date certain at law). The debtor’s notification or acceptance is also necessary to perfect assignment by way of security. With regard to insurance receivables, a loss payee clause ( clausola di vincolo ) can be included in the insurance policy. The security may be perfected on the same day the security agreement is executed. Intellectual Property Rights Security over Italian patents, designs, trade mark reg- istrations and trade mark applications typically take the form of a pledge. A deed of pledge is required for this purpose. The perfection of the pledge requires the filing of the deed of pledge with the institutions where the intellectual property rights are registered (such as the Italian Patents and Trademarks Office and the European Union Intellectual Property Office). The deed of pledge must be notarised and is usually executed in Italian before an Italian notary public. It is in principle possible to execute it before a foreign notary public but, in this case, the deed must also be apostilled (where necessary) and deposited with an Italian notary public together with a sworn transla- tion (if it is not drafted in Italian). The security usually takes a few weeks to be perfected and the timescale depends on the relevant offices. Real Estate Assets A deed of mortgage is required to grant a mortgage over land/property. The deed of mortgage must be notarised and registered in Italy. Therefore, it is usually executed in Italian before an Italian notary public. The perfection of the mortgage requires registration with the competent land register (to be carried out by the
Italian notary public). The security usually takes a few weeks to be perfected and the timescale depends on the relevant offices. Movable Assets Common forms of security over movable property include: • pledges; • special mortgages on registered movable property, such as aircraft and vessels; and • floating charges under Article 46 of the Consoli- dated Banking Law (see 5.2 Floating Charges and/ or Similar Security Interests ). The security usually takes a few weeks to be perfected and the timescale depends on the relevant courts. 5.2 Floating Charges and/or Similar Security Interests While Italian law does not permit floating charges, there are two types of security under Italian law which have some of those characteristics. Special Privilege The special privilege deed must be signed before an Italian notary and can only be granted by the debtor to secure facilities with an overall maturity exceeding 18 months when the facilities are granted by Italian or other EU banks. The special privilege may cover: • (i) existing and future equipment, concessions and produced goods of the enterprise; • (ii) raw materials, semi-manufactured goods, stock, finished goods, fruit, livestock and goods; • (iii) goods purchased with the loan in respect of which the special privilege is intended to be granted; and • (iv) present or future receivables arising from the sale of the assets and goods listed in (i) to (iii). Non-Possessory Pledge Over Movable Assets The non-possessory pledge may be established: • to secure financings, whether present or future, granted in order to run the business (a maximum secured amount must be set);
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