TOWARDS A SIMPLER AND FASTER ENFORCEMENT?
Enforcement proceedings, that is the possibility to enforce the recovery of the money owed from the debtor, is an essential aspect of the creditor’s tangible protection. Very often, however, compiling a list of the debtor’s assets necessary to search for assets to be attached is not easy, especially with regard to bank accounts and credits towards third parties.
Some time ago the legislator had already provided for a cohesive procedure whereby the creditor, in possession of an enforceable order, could obtain extensive information on the debtor’s assets (Article 492-bis of the Code of Civil Procedure ): the creditor, ten days after notifying the writ of injunction, could submit a specific application to the President of the competent Court who, after verifying the regularity of the deeds, would issue an authorisation with which, in turn, the creditor could address a further application to the offices of the Revenue Agency to obtain the most accurate and complete information possible on his debtor’s assets (essentially: an indication of the bank accounts in his name).
This procedure, however, was quite lengthy (the duration varied depending on the court and the offices of the Revenue Agency), with the result being that before all the information was obtained, more than 90 days could have passed, this is more than the validity period of the writ of injunction. And this meant that the creditor – before being able to initiate enforcement – had to serve a new writ of injunction, with further expenditure of time and effort.
In order to simplify and speed up this procedure, the legislator – as part of the so-called Cartabia Reform – amended Article 492-bis of the Code of Civil Procedure by introducing three substantial amendments.
(i) First of all, it is no longer necessary to request an authorisation from the President of the Court: it is sufficient to address an application to the competent court bailiff.
(ii) It is then the same court bailiff who, after verifying the regularity of the documents, directly searches the tax administration’s databases and then provides the creditor with the relevant information.
(iii) Finally, for the entire duration of such searches, i.e. during the time between the submission of the application to the court bailiff and the latter’s reply with the requested information, the 90-day time limit for the validity of the writ of injunction remains suspended.
In the first months of the implementation of this new procedure, however, the court bailiffs were not able to carry out the necessary searches at the offices of the Revenue Agency. Consequently, they replied to creditors’ requests by explaining that they could not proceed, and it was always the creditors who had to request the information from the Revenue Agency.
Well, on the 24th June 2023, the Ministry of Justice and the Revenue Agency announced that they had entered into an agreement to allow court bailiffs to directly search for assets to be attached and to transmit the information obtained to creditors.
The agreement provides that the exchange of data will occur using specific IT tools which ensure traceability of access and full compliance with personal data legislation and has been approved by the Italian Data Protection Authority.
Therefore, it seems that the provisions introduced by the Cartabia Reform are finally close to being fully and concretely implemented.
In the subsequent attachment document, the creditor will only have to be careful to specify the date when the application was presented to the court bailiff and the date when the requested information was obtained: in this way, it will be obvious to the debtor and the third-party garnishee that the term of validity – during that period of time – remained suspended and, therefore, the writ of injunction has not lost its effectiveness (art. 492 (8) Code of Civil Procedure).
On the basis of the information obtained, the creditor will thus be able to attach the debtor’s assets much more easily, thereby initiating enforcement proceedings to protect his own claim.
DISCLAIMER: This newsletter merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi. The newsletter does not replace individual legal consultation. Macchi di Cellere Gangemi assumes no liability whatsoever for the content and correctness of the newsletter.
TO READ THE ENTIRE NEWSLETTER:
TO READ OUR PREVIOUS NEWSLETTER OF 23 JUNE 2023: