Civil & Commercial claims in Italy
Claims in front of court for debt collection in Italy
How starting civil and commercial claim in Italy for debt collection
The civil or commercial claim in front of a court in Italy starts by submission of application (summons, so called “citazione”) by the plaintiff (attore) who requests jurisdictional protection.
The summons (introductory act of the judgment) is a written act, it is addressed to two addressees:
- the subject against whom the request is made (the defendant, called “convenuto”, which is the debtor), it is the formal call to a debtor to attend at the starting process for payment of the due debt;
- the judge, to whom the plaintiff wants to apply to ask for judicial protection.
The summons act of the judgment can take the form of the appeal.
The 3rd paragraph of the article 163 of the Code of Civil Procedure states the fundamental subjects of the summons:
- appointment of the court (the city in Italy seat of a court), in order to identify the competent judge;
- name of plaintiff and defendant (plus the legal representative, in any), in order to identify the parties;
- explanation of the request of payment towards the defendant, namely: the so called “petitum” (the amount due by the debtor to the plaintiff) and the reason why the judge should have to decide to give reason to the plaintiff (“causa petendi”);
- written description of the facts and the elements of law implied, one or more rules; the description does not need to be specific, if the process is specific from the beginning it would be useless to go on; the plaintiff can start the process generically, and then, when the judge wants more precise explanation, he has to indicate it; the request to court is void if the exposition of the facts or the petitum and causa petendi is missing at all; the civil process in Italy is a struggle, so it is advisable to not give too much information to the counterpart if is not mandatory to do so;
- appointment of the means of proof that the plaintiff intends to use;
- appointment of the lawyer: as per article 125 of the Code of Civil Procedure, the summons must also be signed by the defense attorney equipped with a power of attorney, however, it is not necessary that the power of attorney already exists at this point in the procedure, the important thing is that it is present at the moment in which the party is constituted under penalty of nullity;
- appointment of the day of the hearing: invitation to the defendant to submit its own reply to the summons (called “comparsa di risposta”) at court clerk within 20 days before the date of the hearing and to attend at court the day of the hearing; the invitation must contain the warning that the enrollment at court clerk beyond 20 days implies the lack of the possibility to object the competence of the judge (as per art. 38 of the Code) and to submit a counterclaim (so called “domanda riconvenzionale”) (as per art. 167 of the Code); the date of the first hearing is set by the plaintiff, while, following dates of hearing are stated by the judge:
- between the day of the notification of the summons and that of the appearance hearing there must be no less than 90 days; this time period is extended to 150 days in the event that the place of notification is not in Italy but abroad; if the dispute requires a prompt treatment, the president of the court may – at the request of the plaintiff - shorten the aforementioned terms by up to half with a motivated decree written at the bottom of the original summons document and on the copies of it.
The preparatory phase of the civil commercial process is the hearing regulated by article 183 of the CCP, during it the judge requests the parties for clarifications that become necessary and indicates the issues that he deems appropriate to deal with. On joint request, then, the hearing can be deferred to allow the personal presence of the parties and the free interrogation.
During the hearing referred to in article 183 of the Code of Civil Procedure, the parties can specify and modify the questions, exceptions and conclusions already formulated and the plaintiff can propose the questions and exceptions that are a consequence of the counterclaim or of the proposed exceptions proposed by the defendant and ask to be authorized to call a third party, if the defendant deems it necessary.
If asked to do so, the judge grants the parties:
- a term of 30 days for the deposit of defense scripts only for clarifications or modifications of the questions, exceptions and conclusions already proposed;
- a further 30 days deadline to:
reply to new or modified questions and exceptions from the other party;
propose the exceptions that are a consequence of the questions and exceptions;
indicate the means of proof and documentary productions;
- a further 20 days deadline only for indications of contrary proof.
The judge then sets a special hearing to decide on the admissibility of the investigative means proposed by the parties. If the judge decides to do it by order issued outside the hearing, he must do it within a maximum of 40 days.
The judge may also ex officio dispose of additional means of proof: in this case, each party can indicate the proofs and deposit documents for reply and the then the judge can decide to do the interrogation of the parties
The civil trial can be extended also to third parties further plaintiff and defendant, which can intervene voluntarily, at the request of a party or by order of the judge; the voluntary intervention of the third party is ruled by Articles 105 and 267 of the Code of Civil Procedure, so that, anyone can intervene in a process that hangs between other subjects, if he wants to assert a right relating to the object or dependent on the title deduced in the process against one or more parties; it is also possible to intervene only to support the reasons of one of the parties, if there is a personal interest; when the call of third is ordered by the judge to any of the parties and if the party fails to do so, in accordance with article 270 of the Code of Civil Procedure, the judge orders the cancellation of the dispute from the role.
During the course of the dispute, the judge can adopt various measures, which are those provided for in article 187 of the Code of Civil Procedure. The case can be remitted before the college (i.e. if the negotiation phase can be closed and it pass directly to the decision phase) if the judge considers that it is ready for the decision on the merits, without it being necessary to assume means of proof; this occurs when the dispute concerns exclusively matters of law or when it is based on documentary evidence or when the parties have not submitted preliminary inquiries. The judge can take the case in decision to rule with reference to a question of merit that has a preliminary character and is suitable to define the judgment. The dispute can also be decided by the judge when arise questions concerning jurisdiction or other preliminary questions concerning the procedural conditions. However, they can also be decided jointly with merit.
During the dispute, upon request of a party, the judge may order, before the term of request of the conclusions, the payment of the sums not contested by the parties.
As per Art. 186 ter, the advanced sentence is the order for payment or delivery order which the parties can ask the judge to pronounce in any state of the trial, the request is admissible: before the term of requests of the conclusion and if written proof is given.
The order of judge (ordinanza) can be declared provisionally enforceable if the credit is based on a bill of exchange, bank check, cashier's check, certificate of stock exchange settlement or on an act received by notary or other authorized public official or even if there is a danger of serious injury in the delay or the applicant produces documentation signed by the debtor (for the latter two cases the judge can impose a security on the applicant).
The court’s decision in Italy is issued upon a civil or commercial litigation.
There are 3 types of decisions that can be issued by a court in Italy:
1) sentenza (sentence): the court issues the judgment based upon facts and law’s features
sentenza contumaciale: is the judgment issued in absence of the defendant
sentenza non definitiva: is an interlocutory judgment issued during the course of a civil suit which states on intermediate objects, without issuing a final decision
2) ordinanza: it happens when the court issues any necessary orders during a civil lawsuit (or after the request of a party or freely by the court)
3) decreto: it happens when the judge issues orders on instance of a party without summoning the other or freely by the court itself
The recognition in Italy of judgments and arbitration awards issued by a foreign courts is possible without proceeding if:
the parties attended at civil process in accordance with the laws of country of proceedings (or the failure to appear was declared in accordance with that law)
the sentence is not contrary to another sentence issued by an Italian court that became final judgment no more changeable (res judicata)
no further proceedings started prior the foreign proceeding are pending before a court in Italy concerning the same item and involving the same parties
the contents of the judgment is not contrary to Italian public policy (as per art. 64, Law No. 218 of May 31, 1995)
the foreign court that issued the judgment could decide the claim also in accordance with Italian principles on jurisdictional competence
the notice of claim to defendant was in compliance with the provisions of laws of the foreign country where proceedings were held; and also essential rights of defense haven’t been infringed.
The person interest to recognize a sentence in Italy could claim the court of appeal in order to check the existence of the requisites of recognition if:
the foreign judgment is not in compliance with recognition or
there is an objection to recognition or
is necessary to proceed with forced execution.
The beneficiary of a foreign judgment is entitled to implement and to forced execution of it.