ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
Opposition to Enforcement (Article 615 of the CCP) Through this procedure, the debtor disputes the credi - tor’s right to proceed with enforcement. By way of example, the debtor may hold that the enforcement title is invalid or unenforceable, the obligation set in the title has already been fulfilled or is extinct, or the assets seized are exempted from attachment. This opposition is inadmissible if it is lodged after issu - ance of the order authorising the sale or the assign - ment of the seized assets. Opposition to Acts of Enforcement (Article 617 of the CCP) With this procedure, the debtor disputes: • the formal validity of the enforcement title and the writ of enforcement – in this case, the opposition must be lodged within 20 days of service of the above-mentioned documents; and • irregularities in service of the enforcement title and/ or of the writ of enforcement, or irregularities con - cerning subsequent individual acts of the enforce - ment procedure – in this case, the opposition must be lodged within 20 days of the service of the enforcement title and/or the writ of enforcement or of the day in which the relevant individual act was performed. The court seised with the challenge to enforcement (either under Article 615 of the CCP or under Article 617 of the CCP) may suspend the enforceability of the decision or enforcement itself, on the grounds of serious reasons. 2.6 Unenforceable Domestic Judgments As mentioned in 2.1 Types of Domestic Judgments , sentenze di condanna are immediately enforceable, even if they are still subject to or have already been appealed. Conversely, both sentenze di mero accer- tamento and sentenze costitutive may be enforced only insofar as they acquired res judicata effect. Even for sentenze di condanna , however, enforcement may be precluded in cases where a stay of provisional enforcement is ordered. Indeed, the court competent for the appeal and the Supreme Court can suspend provisional enforceability
the peculiar nature of the property subject to custody. Similarly, attachments against third-party claims also imply low costs. In contrast, enforcement against immovable properties leads to substantial costs, as they include not only taxes and duties but also fees owed to several professionals (experts, custodians, and the notary involved in the sale of the real estate). Time The duration of enforcement proceedings depends on several circumstances, including the type of attach - ments chosen and the timeframe required to complete the sales operations. As a general remark, enforcement of third-party claims is undoubtedly faster and more efficient, and it may be completed within some months. In contrast, enforce - ment against immovable property may result in quite complex and time-consuming activities, which may last from two to five years. Besides resorting to the sources already mentioned (see 1.1 Options to Identify Another Party’s Asset Position ), Italian law provides a specific procedure that may be activated by a creditor following the service of both the enforcement title and the writ of enforcement. Indeed, Article 492-bis of the CCP allows the credi - tor to request that the bailiff of the debtor’s place of residence gain telematic access to public administra - tion databases (including, in particular, the tax registry, the archive of financial reports, and the databases of social security institutions) in order to obtain informa - tion about assets that may be subject to attachment – for example, information about relationships with banks and employers. If the search is successful, the bailiff directly proceeds with the formalities required to execute the writ of attachment of the identified prop - erty ( atto di pignoramento ). 2.5 Challenging Enforcement of Domestic Judgments Italian law provides two different procedures to chal - lenge enforcement of judgments. 2.4 Post-Judgment Procedures for Determining Defendants’ Assets
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