ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
Enforcement Procedure Should the debtor fail to perform its obligations within the aforementioned term, the creditor is entitled to commence enforcement through a writ of attach - ment ( atto di pignoramento ), which is to be served to the debtor by the competent bailiff. Once the debtor receives service of such writ of attachment, the assets identified therein are seized and the debtor is deprived of the right to dispose of them (although the debtor may still be entitled to retain possession thereof). The content of the writ of attachment and the subse - quent procedure differ according to the type of assets seized. Enforcement over movable assets Enforcement over movable assets is executed by searching for assets either through the bailiff’s access to the debtor’s residence and other premises belong - ing to the latter (including for professional purposes) or through a search of the debtor’s person. In choosing the assets to seize, the bailiff should identify assets that are easier to sell (hence preferring cash, valuables, and securities), up to a value equal to the amount of the claim increased by 50% (in order to cover interests and legal fees as well). The bailiff may request assistance from an expert to assess the value of the assets, with a view to issuing an attach - ment report. Assets are either transported to a public storage facility or left with the debtor; a custodian is appointed (usually other than the debtor, unless the creditor so agrees). Assets seized are then sold and the proceeds are placed to the satisfaction of creditors (and the costs of the enforcement proceedings). Enforcement over immovable assets In order to seize immovable assets, careful inspection of the Public Register of Immovable Property ( Con- servatoria dei Registri Immobiliari ) is required to spe - cifically identify the property and possible existence of mortgages, liens, or third-party rights on the assets. Enforcement is then executed through service of the writ of attachment and its subsequent transcription in the aforementioned public register – following which,
the creditor submits its petition for sale of the prop - erty. After having verified the completeness of all the service procedures and formal requirements, the court orders the sale, and the base sale price is set. This type of enforcement usually guarantees that the credit is recovered (in whole or in part, depending on the amount due and the price obtained following sale of the real estate). However, it is subject to relevant costs (including tax duties and the fees of the profes - sionals involved) and requires an extensive procedure Creditors resort to this procedure in order to expro - priate claims that the debtor has against third par - ties, typically including banks, employers, and social security institutions (provided that claims for salaries and social security wages can be seized only up to one-fifth of the monthly amount owed to the debtor). By virtue of the writ of attachment, which is to be served to the debtor and the third party, the creditor must identify the third party but need not specifically indicate the debtor’s accounts or the amounts owed. It will be up to the third party – within ten days of receipt of the writ of attachment – to notify the creditor in writing of what sums are owed to the debtor and when payment is due, as well as of the existence of any other pending seizures or attachments over those assets. On the basis of this information, the creditor is thus enabled to assess whether or not it is worth proceeding, and the procedure for assigning the third- party claim in favour of the creditor is usually some - what expedited. 2.3 Costs and Time Taken to Enforce Domestic Judgments Costs Enforcement costs are established on the basis of the value of the claim, to which legal fees, the court’s fees, and other professionals involved (ie, custodians, experts, notaries, etc) are parameterised. Therefore, enforcement costs vary significantly depending on the type of attachment that the creditor chooses. Attachments over movable assets usually entail low costs, unless higher expenses are required owing to (possibly lasting up to several years). Enforcement over third-party claims
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