E-note 1/2 – Actors and principles of enforcement

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In Italy, various public and private parties take part in the different stages of the enforcement procedure, although the main role is performed by the judicial officer and by the enforcement judge.

In particular, the judicial officer has the duty of executing the enforceable title - the judgment, injunction, promissory note, validation of eviction, court order of transfer, etc. - whereas the enforcement judge, besides acting in any opposition and dispute arising at the time of enforcement, has the task of overseeing the final stage of the enforcement procedure, either directly or by delegation (from the decision on the sale of the assets attached to the distribution of its proceeds).

Who is the judicial officer?

According to article 1 of their statutes, judicial officers are attached to 'service, execution and protest offices' - Uffici Notificazioni Esecuzioni e Protesti - within court registries and are auxiliaries of the judicial order.

They carry out the acts entrusted to them when such acts are ordered by the judicial authority or requested by the court registry or the party to a case.

The employment of private staff in such offices is prohibited.

The judicial officer is an agent with jurisdictional authority who carries out the court's auxiliary functions, but also performs his own autonomous functions in the civil, administrative and extrajudicial fields.

Furthermore, he may not accept public or private employment, engage in commerce, industry or any profession or accept office in partnerships formed for profit-making purposes.

The judicial officer is a public servant and is not the proprietor of his own practice, as is the case in other European countries.

For his activities, he uses the assets and facilities of the public administration and works under the supervision of the chief magistrate in the court registry to which he belongs.

Judicial officers operate in the Ufficio Notificazioni Esecuzioni e Protesti - the 'service, execution and protest office', known by its abbreviation, U.N.E.P., which is established at every court of appeal, lower court and the decentralised divisions of lower courts.

The U.N.E.P. is staffed by three professionals with different economic functions: U.N.E.P. officials, judicial officers and court assistants.

The first two implement enforcement instruments and service of process, while the assistants carry out preparatory work associated with the service and enforcement documents.

The work of judicial officers today is regulated in part by Presidential Decree 1229, 15/12/1959 (Ordinamento, or Statute), and in part by national collective labour agreements.

Opinions on the equivalence of the judicial officer and Government employees have been expressed on many occasions in the legal literature and in case law.

However that may be, one of the most recent interpretations is that 'judicial officers, in that they are included in the organisation of the State based on a formal deed of appointment, are civil servants of the State and therefore, although this is not envisaged in their special statute, the general status of civil servants should also be applied to them unless the specific characteristics of the work they perform justifies differential treatment compared with that of other State employees'.

It should be pointed out that even though the Italian judicial officer is treated as being on a par with a civil servant, he is in fact a hybrid in that:

  • a. he is not under an obligation to comply with specified working hours, even though there are European directives and laws that impose maximum limits;
  • b. is authorised to deduct and handle tax payable by others on their behalf;
  • c. uses his own vehicle in the performance of his duties;
  • d. lodges surety before taking up his own role;
  • e. administers his own funds for official expenses, consisting of a percentage of the emoluments collected from private parties;
  • f. finances his own stipend - the guaranteed minimum - out of the fees he collects from private parties;
  • g. has personal civil, criminal, administrative, disciplinary, fiscal and monetary liability associated with the performance of his own role;
  • h. may carry out activities on a fee basis, such as offers of satisfaction of indebtedness, arbitration and technical consultancy, albeit with the authorisation of his office manager.

What activities does the judicial officer perform?

The judicial officer's activities are of the following nature:

  • civil
  • criminal
  • extrajudicial

In criminal matters, the judicial officer mainly arranges for the service of documents, whereas in civil matters his main work is the service of process and the enforcement of judgments and other enforceable titles, with the assistance of the police where required.

In the course of his extrajudicial activities, he arranges for:

  • the service of protests of promissory notes and cheques;
  • the service of extrajudicial documents (notices to perform, summonses);
  • formally placing a creditor in default due to his refusal to accept the debtor's offer of consignment of moneys or goods to his domicile or, if consignment is to be elsewhere, to accept notice to take possession thereof.

1. Service of process: 'notificazione' and 'significazione'

The word 'notificazione', or notification, is derived from the Latin, 'notum facere', which means 'to make known'.

The purpose of 'notification' in this context is to bring a document to the addressee's knowledge, so that the adversarial process can be initiated and he can effectively exercise his right of defence.

The word 'signification', or service, refers to an institution that exists in many EU countries but not in Italy: it consists of the delivery of a document together with the production of a record certifying that the addressee has effectively taken cognizance of the content of the document.

Under Italian law, notification in general may be vitiated for reasons associated with the notifying procedure, and no exceptions are envisaged as to the addressee's effective knowledge of the document.

With the entry into force of Law 80/2005 and further implementing measures, the use of telecommunications - fax and electronic mail - and the digital signature, applied to the notification and communication procedures, has also been introduced in Italy.

Service of notice in civil proceedings is governed by Articles 137 et seq. of the Code of Civil Procedure.

Article 138 of the Code states that the judicial officer normally serves notice by the personal delivery of a copy to the addressee at his residence or, if this is not possible, wherever he is located within the limits of the judicial officer's territorial jurisdiction.

Article 139, on the other hand, specifies that if service is not made in the manner stated in Article 138, it must take place in the municipality in which the addressee resides, seeking him at his home or the place at which he has his office or is engaged in his industrial or commercial work.

If personal service on the addressee is not possible at the said locations, Article 139 of the Code of Civil Procedure allows the document to be delivered to a person other than the addressee (the consignee), but whose relationship is such as to ensure that it will be handed to him.

The consignee is a person who must be identified by the judicial officer from among the addressee's family members or those working at his home, office or business.

The legislator has restricted the capacity of consignee to these persons, as it is presumed that those linked with him by family ties or working relationships - who are to be found in the specified places and who accept the copy -are suitable persons to ensure that the document is handed to him promptly by virtue of the solidarity associated with such ties and the legal duty arising from its acceptance.

Not all persons who are found in the place of service are suitable for receiving the document to be consigned to an addressee who is temporarily absent. The judicial officer's choice is confined to particular persons, such as:

  • a family member;
  • a person employed in his home;
  • a person employed in his office or business;
  • an employee responsible for the receipt of notices;
  • In the absence of such persons:
  • the janitor;
  • a neighbour;

and in special cases:

  • the master of a merchant vessel, or the person acting in his stead.

Article 174(3) of Legislative Decree 196/2003, safeguarding the right to privacy, has imposed the requirement on the notifying officer to ensure that judicial documents for personal service that are consigned to a person other than the addressee are in a closed and sealed envelope.

As regards the place of service, article 145 of the Code of Civil Procedure - an article amended after Law 263/2005 came into force - states that if the addressee is a legal person service will be made at its registered office or, alternatively, pursuant to articles 138 (personal service), 139 (service at the place of habitual residence, temporary residence or the main seat of business) and 141 (service care of the process agent), on the natural person representing the legal person, where the document to be served indicates the capacity of the natural person together with his place of business and habitual or temporary residence.

If attempts to deliver the copy of the document are unsuccessful, whether to the addressee- due to the temporary impossibility of locating him - or to suitable persons for its receipt, the judicial officer serves notice in the manner laid down by article 140 of the Code of Civil Procedure:

  • lodging the copy of the document with the town hall;
  • affixing a notice to the door of the addressee's residence, office or business;
  • forwarding a registered letter with advice of receipt.

Unlike the form of notification specified by article 140 of the Code of Civil Procedure, the provision of article 143 pertains to cases in which the addressee's habitual or temporary residence and place of business are not known.

Article 143 of the Code of Civil Procedure states that if the addressee's habitual or temporary residence and place of business are not known and there is no attorney as referred to in article 77, the judicial officer serves notice:

'by lodging a copy of the document - in a closed and sealed envelope - with the town hall of the addressee's most recent residence or, if this is unknown, the town hall of his birthplace.

If neither the place of his most recent residence nor his birthplace is known, the judicial officer delivers a copy of the document to the office of the public prosecutor.'

For the service of notice to be valid, it is essential that the negative investigation conducted in order to identify the place of service is indicated in the judicial officer's record of his service.

The situation differs from certain EU countries that require notice to be served personally by the judicial officer: in Italy, notice served 'by hand', irrespective of nature of the document, is regarded as being on a par with notice served by post.

In certain cases, the latter procedure is in fact compulsory.

Pursuant to articles 106 and 107 of Presidential Decree 1229 of 15 December 1959, the judicial officer is competent to use the postal service to serve documents from his public prosecution office on persons permanently or temporarily resident or with their place of business in the area of its jurisdiction, whereas he may arrange for service on parties resident elsewhere only if the document refers to a proceeding that comes or might come within the jurisdiction of the court to which the notifying officer is attached.

In consequence, in order to identify the service, execution and protest office/U.N.E.P. competent to serve a document by post, account should be taken of:

  • the competent court registry for the procedure;
  • the place of service.

For the postal service of extrajudicial documents, there are no territorial limits on the territorial jurisdiction of the judicial officer.

The addressee's cognizance of a document for legal purposes is evidenced by a report on of the service of process.

The service of process report - 'relazione di notificazione', informally known as the 'relata di notifica' - is in effect a 'written' reproduction of the whole procedure of serving a document.

The law does not permit the substitution of this certification that notice has been served by documents other than the service of process report, in that the 'relata di notifica' is the sole document that can furnish proof of service.

It should also be pointed out that every activity performed by the judicial officer at the time of service of process must be indicated and found in the service of process report; the statements in the report in question may not be supplemented by subsequent declarations by the notifying officer.

The service of process report is an authentic instrument and is deemed to be valid unless an action for fraud is brought regarding the attestation on

  • the activities performed by the judicial officer in the proceedings,
  • the recording of facts occurring in his presence,
  • and the receiving of statements made to him - limited to their extraneous content,

whereas, until proved to the contrary, other attestations are deemed to be valid where the facts attested have not been directly perceived by the public official but are derived from information he has acquired or particulars furnished by others - for example, the habitual or temporary residence or place of business of the addressee of the notice, a company's registered office, the consignee's declaration of being a co-habitant of the addressee, and similar information.

In the event of a discrepancy between the original of the document and the copy served, the information evidenced by the copy prevails.

This principle does not apply if the discrepancy is merely superficial and can be eliminated by examining the whole contest of the copy served.


Under Italian law, to proceed with execution the creditor must have an enforceable title (see next). There is a further prerequisite besides the enforceable title, although this does not relate to the enforcement procedure proper but precedes it: before initiating execution, the creditor must serve a document on the debtor, known as the 'precetto', or writ of execution.

The purpose of this formality is to give the debtor a deadline for voluntary compliance in order to avoid enforcement, and at the same time to assign the creditor a term (of ninety days) within which enforcement must commence.

Enforceable title

Article 474 of the Code of Civil Procedure establishes that enforcement can take place only pursuant to an enforceable title in respect of a right that is certain (i.e. one that exists), fixed (in other words, a debt whose amount has been determined) and due (without term or conditions).

The enforceable title, the basis for enforcement in any form, is the document ascertaining the existence of a creditor's claim for enforcement against a debtor and consequently requires the office to enforce the claim within the limits and in the manner laid down law.

Article 474 identifies two types of enforceable titles:

1. Judicial enforceable titles:

  • a. judgments;
  • b. remedies 'and other documents' to which the law explicitly attributes executable force;

2. Extrajudicial enforceable titles:

  • c. certified private agreements, regarding obligations as to the sums of money stated therein;
  • d. promissory notes and other negotiable instruments, and documents to which the law attributes the same force;
  • e. documents of which a notary or other public official has taken knowledge, where he is authorised by law so do.

The 'precetto', or writ of execution

The 'precetto', an ex parte document, is a formal notice to comply with the obligation arising from the enforceable title within a term of not less than ten days, with the warning that in the event of failure to do so enforcement will be levied.

This formal warning, therefore, is a document that is a prerequisite for enforcement; the law, however, makes certain exceptions to this requirement, for example in interlocutory proceedings.

It also has a twofold function of a document placing the debtor in default and suspending the term of prescription of the right.

The writ ceases to be effective if, within a term of ninety days from its service, enforcement has not been initiated.

If the debtor opposes the writ, that term continues to be suspended and recommences as provided by article 627 of the Code of Civil Procedure.


Enforcement 'in general' is regulated by Book Three, Title II, Chapter I (article 483 et seq.) of the Code of Civil Procedure.

This 'segment' of the Code of Civil Procedure lays down the principles applicable to all forms of attachment and seizure, in other words:

  • attachment of personal property;
  • garnishment;
  • attachment of real property.

Article 483 of the Code of Civil Procedure states that the creditor may, in order to seize the debtor's assets, avail himself cumulatively of the various methods of enforced expropriation, using whichever he feels is most appropriate: attachment of personal property, garnishment, or attachment of real property.

These cumulative options imply that the creditor can carry out a number of enforcement processes of different types against the same debtor, in the sense that he is allowed to act simultaneously by expropriating the personal and real property and the claims of the debtor against whom the claim is being enforced, initiating as many independent procedures, with the obvious aim of more rapidly obtaining satisfaction of his claim.

To avoid causing greater prejudice than necessary, the legislator has made provision for instruments of defence and guarantee for the debtor, giving the enforcement judge authority to intervene in the enforcement process - on the opposition of the debtor himself - in order to limit the expropriation to the form chosen by the creditor or, failing that, to the choice made by the judge himself.

The statement of assets

Law 52 of 24 February 2006, besides the more incisive forms of seizure of the debtor's assets, has introduced a new procedure, the 'dichiarazione patrimoniale', or statement of assets, the purpose of which is to oblige the debtor to cooperate with a view to the satisfactory outcome of the procedure, in application of the principle of fairness referred to in article 1775 of the Civil Code and consistent with the provisions of article 2740 of the Civil Code on the civil liability of the debtor.

Article 492 of the Code of Civil Procedure, in its fourth paragraph, states that if the judicial officer ascertains that the debtor's assets appear to be - are - insufficient to satisfy the creditor taking action - the amount stated in the writ plus 50% for procedural costs - he is to require the debtor to indicate other objects and claims, besides those ascertained, and their whereabouts, in other words giving the particulars of the third party debtors.

The judicial officer draws up a report on that operation, also signed by the debtor, after the latter has been warned of the penalty prescribed by article 388 of the Criminal Code for misrepresentation or omission.

The judicial officer is required to ask the debtor to made the statement of assets prescribed by article 492, fourth paragraph, of the Code of Civil Procedure, where:

  • 1. the assets attached appear to be insufficient to satisfy the claim for which action is being taken;
  • 2. the assets attached for the purpose of liquidation of the debt appear to be long-term;
  • 3. the combined assets attached have become insufficient due to the intervention of other creditors.

Searches in public databases

The Italian legislator, with the intention of harmonising the Italian judicial officer and putting him on a competitive footing with the judicial officers of other European countries, has given him the authority - besides that of requiring a statement of assets - to access data from the tax register and other public databases, in order to discover the existence of other assets and claims owned by the debtor that can be attached.

In addition, where the debtor is a commercial entrepreneur, the statutory provision states that the investigation of assets may be extended by an examination of the business accounts.

The judicial officer, with the titles (enforceable title and writ of execution) and within the term of validity of the writ, may visit the place indicated in the documents in order to execute the enforceable title.

Timing of execution

Article 519 of the Code of Civil Procedure states that the attachment may not be levied on non-working days or outside the hours stated in article 147 of the Code of Civil Procedure (before 7 a.m. and after 9 p.m.), unless authorisation has been given by the President of the Court or by a judge delegated by the President.

Privilege from execution

In accordance with article 2740 of the Civil Code, the debtor is answerable for compliance with his obligations out of his own property, present and future.

This civil liability of the debtor is reflected in the creditor's right to obtain satisfaction from all the assets belonging to the debtor.

However, there are exceptions to this general principle, contained in article 2740 of the Civil Code: they are stated by article 514 of the Code of Civil Procedure and by certain special laws derogating from the principle of this civil liability on the part of the debtor by exempting certain categories of personal property from expropriation.

It is first of all the responsibility of the judicial officer to determine whether or not any or all of the debtor's assets come within the body of assets 'that may be attached'; in the search for the assets to be attached, the judicial officer has the power, exercised at his discretion, to assess whether they may be exempted from execution. If those assets are held by the judicial officer to be attachable and the debtor opposes that finding, their evaluation and the decision are the responsibilities of the enforcement judge.

The search for assets

As regards the seizure of property from the debtor, article 513 of the Code of Civil Procedure traces the route that the judicial officer must take in searching for the debtor's assets to be attached:

  • in the debtor's house;
  • in other places belonging to him;
  • on the debtor's person;
  • in places not belonging to the debtor.

The search of the debtor's person is one method in such an investigation, and is inherent in the function of the enforcement procedure and on a par with the searching of the debtor's house.

Just as it is not admissible that the debtor should prevent the judicial officer from entering his residence, it could not be accepted either that he should remove the attachable assets from the enforcement process by carrying them or hiding them on his person. This would be tantamount to accepting that the debtor is free to evade his civil liability.

If the search for the assets has to be conducted in locations not belonging to the debtor, the procedure for the attachment of those assets may be one of three types:

  • 1. expropriation from third parties - as provided by article 543 of the Code of Civil Procedure - for objects owned by the debtor that are in possession of third parties and of which he cannot dispose directly;
  • 2. direct action by the judicial officer on the premises of the third party in possession of the debtor's assets, when the third party consents to display them;
  • 3. the attachment of personal property from the debtor and, by authorisation from the President of the Court, when certain assets are located in places not belonging to the debtor but of which he can dispose directly.

Choice of objects to be attached

Pursuant to article 517 of the Code of Civil Procedure, the attachment must be made on the objects that the judicial officer considers can be liquidated more easily and promptly, within the limit of a presumed realisation value equivalent to the amount of the claim stated in the writ plus one half.

Nevertheless, the judicial officer must give preference to money in cash, precious objects, negotiable instruments and other assets that are seen as being certain of realisation.

Description of attached assets

The first paragraph of article 518 of the Code of Civil Procedure introduces an important provision as regards the description of the assets attached: 'The judicial officer draws up a report of his operations in which he records the injunction referred to in article 492 and describes the objects attached, together with their condition, by means of photographic images or other audiovisual media.'

The presumed realisation value of the assets attached

On the entry into force of the reform of enforcement against personal property, the legislator has also introduced a new criterion for estimating assets subject to attachment.

Whereas, in the past, the evaluation of an asset was linked with its commercial value, under the reform law the reference is now the presumable value on realisation.

This means that at the time of estimating the asset the judicial officer is required to make a careful assessment of how much can be recouped from the enforced sale of that particular asset.

The reference criteria for arriving at an approximate estimate of the presumed value on realisation are linked with supply and demand on the market for the asset that is being attached.

Custody of the assets attached

The assets attached, as implied by the requirement for the enforcement procedure to be conducted in a proper and orderly manner, are subject to the continuous and immediate availability to the judicial authority by the party responsive for their custody; in acting as the custodian of the attached assets, that party has the function of cooperation with the administration of justice and assumes the capacity of a public official.

The institution of the custody of attached movable assets is covered in articles 65, 66, 67, 520, 521 and 522 of the Code of Civil Procedure.

It should first be stated that when the judicial officer attaches money, negotiable instruments and valuables, within the meaning of the first paragraph of article 521, he is required to deposit those assets with the registry of the enforcement court.

For assets other than those specified in the preceding paragraph, the judicial officer may authorise the following as the place of storage of the assets attached:

  • a. the place at which the assets have been attached (on the premises of the debtor or the third party in possession);
  • b. a public depositary;
  • c. with a third party;
  • d. at the seat of the Istituto Vendite Giudiziarie (judicial sales institute).


After the minimum interval of ten days from the attachment, the judgment creditor or one of the creditors who has joined in the claim may ask for the attached assets to be sold.

The enforcement judge may order the sale of the assets attached other than by public auction or through a commission agent.

The attached objects may be entrusted to the judicial sales institute or, by a substantiated measure, to another party specialising in the sector in question, so that it may proceed with the sale in the capacity of a commission agent.

Where the sale is to be made by public auction, the enforcement judge appoints the day, time and place at which it is to be held, and assigns its performance to the court registry official or the judicial officer or to the institute authorised to this effect.

In the same measure, the enforcement judge may order that, in addition to the publicity provided for in the first paragraph of article 490, there should be special publicity.

Furthermore the judge may issue a measure delegating the conduct of the sale, whether or not by auction, of the movable assets entered into the public registers to the Judicial Sales Institute or, failing this, to a notary preferably having his seat in the district, or to a lawyer or qualified accountant, entered into their respective lists.

Lastly, the enforcement judge rules as to the distribution of the proceeds from the sale.

Attachment of immovable assets

The expropriation of real property is governed by the provisions of Book II, Title II, Chapter IV of the Code of Civil Procedure on the enforcement process of execution (articles 555 to 598), and the provisions contained in Chapter I on enforced expropriation in general are also applicable.

Two separate stages of the procedure can be identified in the attachment of real property:

  • 1. service of the attachment document on the debtor;
  • 2. the entry of the certified copy of the attachment order - notice of which has been duly served on the addressee - in the public property registers.

The service of the document is the point at which the effects of attachment start to run, whereas the function of transcription of the order into the public register is to make its enforcement effective against third parties.

The document of attachment of real property may be served personally or by the postal service.

If the addressee resides in a district other than the one in which the property to be attached is located, responsibility for service is:

  • exclusively by post by the judicial officer with territorial jurisdiction for the place at which the property is located and where the enforcement judge sits;
  • alternatively, by post or delivered to the person by the judicial officer with territorial jurisdiction for the place where the debtor resides.

Transcription becomes of decisive importance for the purpose of the attachment of real property, in that it gives rise to the lien of inalienability in favour of the creditor making the attachment and other creditors that are parties to the enforcement.

Since it is in fact the essence of attachment that such inalienability is created, the function of transcription is constitutive and not merely declarative, with the effect that the attachment is finalised, including between the creditor and debtor, only at the moment of transcription and not at the earlier point of service of notice (see article 2693 of the Civil Code, in relation to article 2913 et seq. of the Civil Code).

Once the judicial officer has served the document of attachment of the real property, he must lodge the original document with the registry of the competent court, so that the enforcement file can be created.

When the judicial officer returns the titles to the applicant party, together with the certified copy of the attachment document for its transcription, the creditor has ten days from the date of its service to lodge the enforceable title, writ of execution and, as soon as possible, the transcription note, with the registry of the competent enforcement judge.

On expiry of a term of ten days from the attachment - and within ninety days - the creditor may apply for the property attached to be sold.

Once the party has lodged all the documents specified by article 567 of the Code of Civil Procedure - within a term of one hundred and twenty days from the application for the sale - the enforcement judge nominates an expert, within thirty days of the documentation having been lodged, and fixes a date for the appearance of the parties for authorisation of the sale.

At that hearing the judge, if necessary after obtaining clarification from the expert, determines the procedures for the sale; having heard the parties, he may delegate the sale transactions to a notary, lawyer or qualified accountant (non-auction sale).

Attachment on third party premises

Expropriation through third parties is regulated by articles 543-554 of the Code of Civil Procedure.

Where a creditor wishing to execute an attachment of a movable object that he assumes is the property of his debtor but that is held by a third party, he must act - unless the third party agrees to disclose the object voluntarily to the judicial officer - according to the procedures and forms laid down by article 543 et seq. of the Code of Civil Procedure.

In addition to movable objects, the same Code also regulates the garnishment of the debtor's claims against third parties.

The garnishment, therefore, is directed against:

  • a. the debtor's money held by, or claims against, a third party;
  • b. movable objects owned by the debtor, but held by a third party.

The function of the garnishment document is to place a lien as to destination on the debtor's claim in order to satisfy the garnisher.

The debtor's claims against third parties or the debtor's property in the possession of third parties are attached by means of a document served in person on the third party (article 546 of the Code of Civil Procedure) and on the debtor pursuant to article 137 et seq.

The central and decisive moment of the garnishment is the service of that document, even though it consists of a number of elements.

In format, the document consists of two separate parts: the first part is produced by the judgment creditor and contains the elements listed in article 543 of the Code of Civil Procedure, whereas all the information required by article 492 of the Code of Civil Procedure is contained in the second part, signed by the judicial officer.

Garnishment is finalised not only by service of the document, but also by the third party's positive statement or the judicial assessment of the claim.

These are the two methods that alone lead to an accurate and practical specification of what property or amounts the third party owes or that are in the third party's possession at the time at which payment or consignment is due.

The garnishment document must contain the summons of the third party and debtor to appear before the court of the third party's place of residence, so that the third party can make the declaration referred to in article 547 and so that the debtor is present at the time of the declaration and subsequent documents; the third party is summoned to appear when the garnishment relates to the claims referred to in article 545, third and fourth paragraphs, and in other cases it is asked communicate the declaration referred to in article 547 to the garnishee creditor within a term of ten days by registered letter.

Article 543, fourth paragraph, states that the third party and the debtor must appear before the court of the third party's place of residence.

The attachment of claims arising from the employment relationship of employees of private individuals is regulated by the third, fourth and fifth paragraphs of article 545 of the Code of Civil Procedure. As mentioned, this provides that:

  • 1. 'the amounts owed by private individuals in respect of salaries, wages or other indemnities pertaining to the working or employment relationship, including those owed due to dismissal, may be attached for maintenance obligations at the rate authorised by the Court or the judge to which the case is delegated.
  • 2. These amounts may be attached at the rate of one fifth for taxes owed to the State, the provinces and the local authorities, and at an equal rate for any other claim.
  • 3. Attachment due to the simultaneous concurrence of the causes indicated above may not extend to over one half of the said amounts.

The other limitations contained in special statutory provisions, however, remain unchanged.'

Aircraft and naval vessels

Enforcement is regulated solely by the special measures set out in Book Four, Title V, of the Code of Navigation, as well as in Title IV of the regulations implementing that Code, approved by Presidential Decree 328 of 15 February 1952, with the result that reference cannot be made to the rules on enforcement in the Code of Civil Procedure, except in those cases in which specific reference is made to that Code in the Code of the navigation or its implementing regulations.

Article 650 of the Code of Navigation provides that the attachment of ships, floats or shares in their ownership - and article 2061i as regards aircraft - is carried out on the creditor's application, by service of the document on the owner and the master or captain.

When, therefore, the attachment refers to ships or aircraft:

  • the form of the attachment is not as prescribed by the Code of Civil Procedure: the judicial officer does not arrange for the search for and identification of the ship or aircraft pursuant to article 513 of the Code of Civil Procedure;
  • enforcement is regulated solely by the special measures set out in Book Four, Title V, of the Code of Navigation, as well as in Title IV of the regulations implementing that Code, approved by Presidential Decree 328 of 15 February 1952;
  • the judicial officer merely serves the relevant attachment document on the owner and the master or captain.

Enforcement of release of immovable property (eviction)

The creditor, bearing the enforceable title in executable form, must therefore serve that title and the writ before proceeding with enforcement.

The first paragraph of Article 608 of the Code of Civil Procedure - Method of release - states that enforcement commences on service of the notice whereby the judicial officer informs the party at least ten days in advance that it is required to release the property, stating the date and time on which action will be taken.

Enforcement by consignment or release is assigned to the judicial officer, although provision is made for the intervention of the judge if, in the course of execution, difficulties arise whose solution cannot be deferred.

In this case, article 610 of the Code of Civil Procedure provides that each party may apply to the enforcement judge to exercise his authority to take the temporary measures required.

On the day and at the time appointed, the judicial officer, bearing the enforceable title, the writ and the prior notice, goes to the place at which the property being released is located, to implement the execution.

It should be pointed out that, pursuant to articles 608 and 513 of the Code of Civil Procedure, the judicial officer's powers and duties include those of opening doors, store rooms or containers, overcoming resistance offered by the debtor or third parties, or removing persons who disrupt execution.

If the judicial officer finds the evictee or another person living with the evictee, the first formal request is to hand over the keys and, depending on the circumstances,

  • to transport elsewhere all the movable objects not related to the enforcement;
  • not to leave valuables, money or other objects of value in the property being released - in a case in which the evictee declares that he does not have other premises available where the movable property can be transferred.

If the evictee does not offer resistance and voluntarily hands over the keys, the judicial officer proceeds by taking possession; if, however, resistance is offered, he calls on the Police for support.

If nobody is present on behalf of the evictee in the place of enforcement, and the judicial officer finds the entrance door closed, he is authorised by law to make a forced entry, in that it is not a prerequisite for the applicant party to enter into possession that the enforcee, on whom the notice of release has been duly served, should be present.

Once all the difficulties that arise in the first phase of enforcement are overcome, the judicial officer places the applicant party or the person designated by him in possession of the property.

Article 609 of the Code of Civil Procedure provides that if movable objects are found in the property that belong to the party required to release that property and that do not have to be consigned to the applicant party - for example, an unfurnished apartment - the judicial officer may, unless the evictee removes them immediately, arrange for their custody on site, even by the applicant party if he agrees to such custody, or for their transfer to another location.

It may arise that there are assets liable to attachment or seizure among the objects to be removed or listed in an inventory.

In this case, the judicial officer is required to give immediate notice of their release to the creditor on whose application the attachment or seizure has been carried out, and to the enforcement judge for the replacement of the custodian if necessary.

Obligations to perform or not to perform

Where the enforcement in specific form related not to an asset but to the debtor's performance, this type of execution is called the enforcement of 'obblighi di fare o di non fare'.

The condition of such execution is that the activity in question is fungible, in other words that it can be performed by a party other than the obligee, as per articles 2931-2933 of the Civil Code and 612-614 of the Code of Civil Procedure.

Article 612 provides that the enforcement judge, in his order, should designate the judicial officer who is to levy execution.

A 'personal' assignment of this nature is justified by the complexity - procedural and in timing - that may arise in enforcement of an obligation of performance or non-performance.

The same requirement that the person in charge of a procedure should not be substituted also applies to the judge in certain stages of the process - see, for example, article 174 of the Code of Civil Procedure.

3. Urgent relief

The 'provvedimento di urgenza', or urgent relief measure, is an instrument serving as an accelerated protection for a party entertaining a right against irremediable prejudice to the prospect of enjoying that right in the future due to the passage of time required for the judgment of recognition to be issued.

The provision regulating urgent relief measures is article 669-duodecies of the Code of Civil Procedure; as regards the implementation of protective measures it specifies various courses of action, depending on their purpose:

  • measures on the obligations of consignment, release, performance or non-performance, where their practical execution is still in the hands of the judge who has issued the protective measure, who also determines the procedures for their implementation by issuing the necessary and/or appropriate rulings in order to render the jurisdictional protection granted effective;
  • measures on the forms of money to which the provisions of article 491 et seq. of the Code of Civil Procedure apply, where compatible;
  • seizure, for which the reference to the provisions of article 677 et seq. of the Code of Civil Procedure remains valid.

As can be noted from the references to other rules on the execution process, the methods of execution of urgent relief procedure are almost the same - apart from a few incompatibilities - as for enforcement.

The scope of urgent relief measures is vast and, as pointed out, they are authorised by the Court only if it has not been possible to act through the ordinary channels or by means of other protective actions for the practical case.

4. Precautionary seizure

The precautionary seizure order serves to preserve the assets for which enforcement action is sought until such time as the creditor can exercise that action.

This is done by bringing forward the time of implementation of the attachment, with similar effects to those acquired by the post-judgment attachment (article 2906 of the Civil Code, paragraph 1).

Article 671 of the Code of Civil Procedure states that 'the judge, on the application of the creditor having good grounds for fearing the loss of the security for his claim, may authorise the precautionary seizure of the debtor's movable or immovable assets or the moneys or objects owed to the creditor, within the limits in which the law allows the attachment'.

The ruling authorising the seizure becomes ineffective if it is not executed within a time limit of thirty days from its issue.

The seizure order is one of the enforceable titles referred to in article 474 of the Code of Civil Procedure, but it does not have to bear the court clerk's certification authorising enforcement.

According to articles 678 and 679 of the Code of Civil Procedure, the procedures for provisional seizure are as follows:

  • movable assets: in the same forms as attachment on the debtor's premises (article 513 et seq.);
  • amounts owed to the debtor: in the same forms as the third party attachment (articles 543 et seq.);
  • immovable assets: by filing a record of the measure with the Property Registry for the place in which the property is located.

The precautionary seizure is automatically converted into an attachment when the enforcing party obtains a judgment ordering enforcement.

5. Judicial sequestration

The 'sequestro giudiziario' is an interim measure regulated by article 670 of the Code of Civil Procedure, which does not protect the claim or its security in the form of assets in general - as does the precautionary seizure - but is directed towards the preservation and custody of assets whose ownership or possession is disputed, when their de facto state pending judgment entails a practical risk that they might deteriorate, be removed or be altered in such a way as to prejudice the implementation of the right at issue.

6. The costs of the judicial officer's services

Parties requesting the service of process or the levying of execution must make advance payment to the judicial officers of the fees and travel charges or the cost of despatch of the documents to be served by post (see Consolidated Act 2002/115 on legal fees).

The fees payable are those laid down by law, the rates varying depending on the number of addressees (from € 2.58 for two addressees to € 12.39 for over six addressees).

The travel charge is payable at the rates laid down by law, varying according to the distance in kilometres travelled: the amount is reasonable (for distances of over 18 km the charge is € 4,36, plus € 0,93 for distances of 6 km thereafter or for a fraction thereafter of not less than 3 km).

The fees and travel charges are increased by a half for urgent documents, in other words those to be served on the same or following day.

In the case of enforcements levied on movable and immovable assets and for any document requiring the production of a report, excluding the protest document, a single fee is payable to the judicial officers at the following rates:

  • for documents pertaining to cases to a value of over EUR 516.46-EUR 2,582.28: EUR 2.58;
  • for documents pertaining to cases to a value of over EUR 516.46-EUR 2,582.28: EUR 3.62;
  • for documents pertaining to cases to a value of over EUR 2,582.28 or of indeterminable value: EUR 6.71.

For enforcement documents, the travel charge is payable for the outward and return journey at twice the rate specified for the service of notice.

The enforcement judge

The enforcement judge - designated by the President of the Court - in the enforcement proceeding:

  • a) has the duty of verifying that compulsory expropriation is conducted in accordance with the principle of strict legality and, as the judicial authority, ensures that the fundamental constitutional freedoms are respected;
  • b) may not be substituted by another judge, save in cases in which there is an absolute impediment or serious service requirements.

The judge issues his decisions in enforcement procedures in the form of an ex parte ruling, but where he convenes the parties (and also any other interested persons besides the debtor or creditor) to obtain further information on which to base his evaluation, he issues a court order.

Applications and petitions brought before the enforcement judge, unless otherwise provided by law, will be submitted orally when they are made at a hearing, and by a written submission to be filed with the court registry in other cases.

For enforcement levied on movable or immovable assets, the case comes before the judge with jurisdiction for the place in which the assets are located.

If not all the immovable assets liable to enforcement are located within the district of a single court, article 21 of the Code of Civil Procedure applies.

For the compulsory expropriation of the debtor's claims, the case comes before the judge having jurisdiction for the place where the third party debtor resides.

For the enforcement of the obligations of performance and non-performance, the case becomes before the judge of the place where the obligation must be performed.