CODE OF CIVIL PROCEDURE IN ITALY

This article will provide guidance on the Code of Civil Procedure in Italy. The separation of legislative, executive, and judicial authorities is enshrined in Italy's constitution and serves as a guiding concept for the country's legal system.  The Civil Code is the Italian legislative document containing the country's laws pertaining to agency, contract, tort, unjust enrichment, quasi-contracts, commercial, corporation, property, family, and succession law.  

At Undisputed Legal, we provide service across the globe. We are a private process service agency and are experienced and aware of the requirements of the law in Italy. International service is separate from domestic service, with its unique deadlines, expenses, and laws. It is crucial to adopt the appropriate approach since it may make or break a successful case. 

BACKGROUND

The Italian system is roughly equal to common law systems like the English system in terms of predictability of results. Unlike Italy's decentralized judicial system, the High Court all high-value or difficult matters centrally, providing an unrivaled blend of commercial mindedness and depth of legal expertise. 

However, as Italian judges are not constrained by judicial precedent, they are free to issue rulings that run counter to the current law and doctrine without fear of repercussions to their professional standing.  The Code of Civil Procedure establishes special regulations that apply to family cases, probate issues, and so on and allows for expedited procedures for monetary claims. When it comes to civil litigation involving non-EU foreign jurisdictions, Italy mostly follows the multilateral agreements known as the Lugano Convention, the New York Convention, and the Hague Convention.

Each court has many justices of the peace who hear traffic tickets, minor criminal offenses, and administrative infractions. Each tribunal has at least one civil part and sometimes many criminal sections. Milan, for instance, is home to fifteen highly specialized districts. Italy's twenty regional capitals are home to one of the country's twenty-six appellate courts. These courts have authority over the lower courts in their respective districts. 

The Court of Cassation in Rome is the highest in the country. It is supposed to ensure that all subordinate courts read the law in the same way and that it's strictly followed. Therefore, an appeal from a lower court's judgment to the Court of Cassation must be based on the argument that the lower court either incorrectly interpreted the law or properly construed the law but incorrectly applied it to the facts of the case. The facts that led to a lower court's ruling are off-limits to the Court of Cassation's review.

The Court of Cassation may overturn judgments from lower courts if it can be shown that those courts lacked jurisdiction or otherwise violated basic procedural standards. In the event of a claim, time constraints vary depending on the nature of the claim. Although most claims have a ten-year statute of limitations from the date they were discovered, some claims have shorter statutes. It is necessary to file a lawsuit in order to have a judge rule on a disagreement and issue a binding decision. The nature of the issue and national and EU regulations controlling jurisdiction must be considered when determining whether the court has jurisdiction.

The parties, the court, the subject matter, and the heading must all be included in the application, but there are no other required fields.

CIVIL PROCEDURE IN ITALY

The Code of Civil Procedure specifies when any party or the court has to enter an appearance and perform other actions. These rules are applied by each court either by carrying them forward from one stage of the proceedings to the next or by defining an overall timetable for the proceedings. Italian law is not prescriptive when it comes to the procedures that must be followed before filing a lawsuit. The Civil Code requires ‘due notice’ in writing to be given by the party executing the contract before seeking judicial redress for a repudiatory breach of contract; in practice, fifteen days is believed to constitute adequate notice. It is important to remember that the international service of process will require more relaxed timelines than the domestic ones. Hiring a private process service agency like Undisputed Legal is a good method to remove some of the uncertainty that comes with international service of process. 

That is an obligation under substantive law, not a procedure, but important in practice. No legislative or judicially established pre-action procedures or equivalent norms mandate certain conduct on the part of parties ready to participate in litigation. When it comes to legal matters concerning agriculture or communications, however, both sides are required first to try mediation. The court will rule that the lawsuit is invalid if they do not.

STARTING A CLAIM IN ITALY

The statute of limitations is different for each kind of legal claim. The limitation term is ten years, albeit it varies by the kind of right under the Civil Code. This is the statute of limitations for monetary claims that will be enforced.

No formal steps need to be taken before initiating a lawsuit. In order for the court to grant this type of application, it must first determine, through a summary procedure, that the applicant has a prima facie case and that the respondent's situation (in terms of the assets it has available) would deteriorate irreparably if the applicant's goals in the main action were not achieved.

The court will always serve both parties in Italy with the application to acquire an interim remedy. Therefore, the idea of a ‘ex parte application’ does not exist. At every hearing, the respondent will be given the opportunity to defend the application. An injunctive decree (decreto ingiuntivo) is not an interim remedy but a distinct kind of judicial process for certain money claims.

The court may issue the remedy even if the respondent does not show up to the hearing. After the court issues the summons, it will hold a hearing at which the applicant will be required to serve the defendant with a statement of the case in support of the request, and the defendant will be allowed to submit a defense or plead it at the hearing.

 SERVICE OF A CLAIM IN ITALY

A defendant's entry of attendance and defense statement is due no later than twenty days before the first hearing. You will lose the right to pursue it later without including a counterclaim in this opening statement. In addition to losing the ability to assert a counterclaim, a defendant who files an appearance within these twenty days also forfeits the opportunity to join a third party to the proceedings and to assert any procedural exception that the court cannot assert on its own.

The court will check the parties' presence at the first hearing. If the defendant fails to enter an appearance, the court will investigate whether the writ of summons was properly served before ruling that the defendant is absent. If such is shown, the procedures may continue without the defendant. Defendant's absence does not bar him from taking part in the proceedings at a later date; however, if the deadlines for submitting evidence or arguments have passed during their absence, then the defendant will be precluded from doing so.

Notably, a ricorso is used to petition the court for a decreto ingiuntivo in the case of a monetary claim backed up by documentary proof (injunctive decree). If the defendant is not present when the court renders its ruling, the ricorso will not be served. If the request for an injunction is approved, the plaintiff will serve the injunction on the defendant, who will have forty days (or ten days for specific types of debts) to pay and abide by the order. The defendant has forty days from the date of service of the injunctive decree to submit an objection, at which point the matter will continue in the usual manner. Although the court may demand collateral for the amount of the debt being enforced, it may declare that the injunctive injunction is temporarily enforceable awaiting proceedings. 

The time it takes for a matter to go from the beginning of proceedings to being referred for a ruling varies widely from one court to the next. It may take three to nine months, or even longer if many witnesses need to be cross-examined or if there is a lot of sophisticated evidence to hear in court, only to collect the evidence.

FOREIGN JURISDICTION IN ITALY

Whether or not foreign law is applicable might be brought up either by the court on its own or by the parties. When applicable, Italian courts will follow foreign law; nevertheless, if doing so will disrupt public order in Italy, Italian courts will not follow foreign law. This implies that an Italian court must disregard foreign law and apply Italian law instead if it conflicts with fundamental principles of Italian law.

An Italian court may enforce a foreign judgment if it is the court having jurisdiction over the judgment debtor's domicile (in the case of natural individuals) or registered address (in the case of business entities) (in the case of legal persons). If the debtor does not have an Italian residence or registered office, the assets being enforced against must be taken to the Italian court having jurisdiction in the location of those assets.

The Recast Brussels Regulation (1215/2012) governs the recognition and enforcement of EU judgments in Italy. It does away with the necessity to acquire an exequatur from the court in the jurisdiction where enforcement is sought.

Foreign judgments from jurisdictions outside the European Union (including the United States and the United Kingdom) are not automatically enforceable in Italy until the Italian government recognizes them. The court of appeal in the jurisdiction where the judgment debtor resides (for natural people) or is registered (for legal entities) must recognize the foreign judgment (in the case of a company). The court having jurisdiction is the Italian court where the debtor's assets are situated if neither the debtor's residence nor the debtor's registered address is in Italy.

In addition to the Hague Service Convention, each nation has laws and regulations. The rules for serving someone in one country may be very different from those in another, and doing it wrong might entail the case being dismissed or the ruling being unenforceable.  This is where a private process service agency like Undisputed Legal is important. For example, if someone gets served by mail in accordance with the Hague Service Convention, but they've already made it clear that they will not agree to that particular clause. At that moment, the whole service would be null and void. A private process service agency like Undisputed Legal is well aware of the legal requirements for every country and can significantly benefit any overseas cases required.

ENFORCEABILITY OF JUDGEMENTS IN ITALY

An Italian or non-Italian defendant with assets in Italy must ensure that service of proceedings is undertaken properly while being sued outside of Italy; otherwise, the defendant risks receiving a decision that is not enforceable in Italy.

A writ of summons is the formal legal process initiating a lawsuit in civil court when the plaintiff formally requests that the defendant answers the plaintiff's claims.  The defendant must be served with the writ of summons. The first hearing date must be held no sooner than ninety days after the date of service (a hundred and fifty days if the defendant is served abroad). In order to make an appearance and submit a statement of defense, the defendant has until twenty days before the first hearing. The statement includes the defendant's response to the claimant's allegations in the writ of summons. 

Under Italian law, a judge is not required to issue a verdict within a certain time. On average, final briefs and judgments are handed out within six months of each other. Except for the opening documents (the writ of summons and the declaration of attendance), the court requires all briefs and pertinent paperwork to be submitted online. The court still accepts paper and electronic submissions of opening briefs.

Get a ‘formula esecutiva’ stamp added to the judgment by contacting the court clerk's office that issued the verdict (this is the official order to the bailiff to enforce the judgment). An official demand for payment must be served on the debtor, who must pay the amount owing no later than ten days after the demand is made.

ENFORCEMENT OF A FOREIGN JUDGMENT IN ITALY

The Italian legal system generally upholds the parties' choice of law. The Italian courts are required to follow European Union Regulations (EC) 593/2008 on the law applicable to contractual duties (Rome I) and (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II) when deciding whether Italian or another law applies to a given case.

In civil or commercial issues, service throughout EU member states is controlled by Regulation (EC) 1393/2007 on serving judicial and extrajudicial documents in the member states (Service of Documents Regulation). Service outside of the EU shall be governed by the Hague Service Convention of 1965 (HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters).

The Service of Documents Regulation and the Hague Service Convention mandates the service of a document from one nation to another. It must be accomplished via the competent authority designated by the receiving country. The requesting party can have the papers served by mail or a process server. In accordance with the Service of Papers Regulation or the Hague Service Convention, a foreign party seeking to serve documents in Italy must submit a copy of the document, together with an Italian translation and a form, to the Italian central authority. The appropriate bailiff will then be asked to serve the receiver in line with Italian civil process regulations by the central Italian authorities. The criteria a request must fulfill are spelled forth in the Taking of Evidence Regulation and the Hague Evidence Convention. 

All requests are carried out in conformity with the applicable laws of the member state to which they are sent. Attendance is often permitted for the parties and their representatives. From July 1, 2022, the Taking of Evidence Regulation will be superseded by Regulation (EC) 2020/1783. This change is being made to encourage digitization and modern technology to speed up procedures, decrease costs, and minimize delays for individuals and enterprises.

OUR PROCESS

Documents can be faxed at (800) 296-0115, emailed to ps@undisputedlegal.com, or uploaded to our website. We do require prepayment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist receives all documents.

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INTERNATIONAL COVERAGE AREAS:

Albania | Andorra | Anguilla | Antigua | Argentina | Armenia | Australia | Austria | Azerbaijan | Bahamas | Barbados | Belarus | Belgium | Belize | Bermuda | Bosnia and Herzegovina | Botswana | Brazil | British Honduras | British Virgin Islands | Bulgaria | Canada | Cayman Islands | Central and Southern Line Islands | Chile|China (Macao) | China People's Republic | Colombia | Costa Rica | Country of Georgia | Croatia | Cyprus | Czech Republic | Denmark | Dominican Republic | Ecuador | Egypt | Estonia | Falkland Islands and Dependences | Fiji | Finland | France | Germany| Gibraltar | Gilbert and Ellice Islands | Greece | Guernsey | Hong Kong | Hungary | Iceland | India | Ireland | Isle of Man | Israel | Italy | Jamaica | Japan | Jersey Channel Islands | Jordan | Kazakhstan | Korea | Kuwait | Latvia | Lithuania| Luxembourg| Malawi | Malaysia | Malta | Mauritius | Mexico| MonacoMontenegro | Montserrat | Morocco | Namibia | Netherlands | New Zealand |Nicaragua | Norway | Pakistan | Panama | Paraguay | Peru | Philippines | Pitcairn |Poland| Portugal | Republic of Moldova | Republic of North Macedonia | Romania |Russian Federation | Saint Vincent and the Grenadines | San Marino | Saudi Arabia | Serbia | Seychelles | Singapore| Slovakia | Slovenia | South Africa | Spain | Sri Lanka | St. Helena and Dependencies | St. Lucia | Sweden | Switzerland | Taiwan | Thailand | Tunisia | Turkey | Turks and Caicos Islands| UkraineUnited Kingdom of Great Britain and Northern Ireland | Uruguay| US Virgin Islands | Uzbekistan | Venezuela | Vietnam

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 - 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN ITALY

Simply pick up the phone and call Toll-Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Italy process service needs; no job is too small or too large!

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

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Sources

1. In spite of the Civil Code's length and complexity, it is still up to the judicial system to determine how the law should be applied in concrete situations.

2. Italy, a member of the European Union, is a signatory to the Lugano Convention for the recognition and enforcement of decisions in civil and commercial cases, ratified on 30 October 2007. (Lugano Convention).

3. Italy's primary EU-related instruments are:

For example, Rome I (Regulation (EC) 593/2008 on the law applicable to contractual obligations); Rome II (Regulation (EC) 864/2007 on the law applicable to non-contractual obligations); Rome III (Regulation (EU) 1259/2010 on the law applicable to divorce and legal separation); and Regulation (EU) 1215/2012 on jurisdiction, recognition, and enforcement of decisions in civil and commercial matters, recast to provide for the abolition of 'exequatur' for all.

4. If the Court of Cassation may rule without first establishing the facts, it will do so, and the whole judgment (including on the merits) will be definitive. If the Court of Cassation determines that further evidence is required, it will send the matter back down to the trial court (but to a different judge within that court) to prove the necessary facts.

5. Civil Code sections 2934-2961

6. Rule of territorial jurisdiction governs the usual forum for natural people. The general rule is that the competent court is the court of the defendant's locatione (foro generale delle persone fisiche). A partner may have to go to a court outside the ordinary forum for natural persons (in which case, there is said to be mandatory territorial jurisdiction [competenza per territorio inderogabile]) depending on the value of the dispute or the specific matter at issue (the justice of the peace [giudice di pace], or the general court [tribunale] sitting with one judge or with a panel of judges).

7. Perhaps the most unfavorable feature of commencing actions in Italy is the substantial time it takes to acquire a first-instance decision.

8. The Italian courts have jurisdiction over civil issues if they meet the criteria set out in Legislation (EU) No. 1215/2012 on jurisdiction, recognition, and enforcement of decisions in civil and commercial matters; Legislation (EC) No. 2201/2003 on jurisdiction, recognition, and enforcement of decisions in matrimonial and parental matters (Brussels IIbis); and bilateral treaties with individual countries.

9. In Italy, to start enforcement procedures, all that is needed are the following:

  1. the original foreign judgment, 
  2. a certificate from the foreign court declaring that the decision is enforceable and summarising the judgment and the necessary information on fees and interest, and 
  3. a certified translation of the judgment and certificate.

10. Included in the writ of summons are the following mandatory elements:

  1. The basis for the claim.
  2. Just the facts, straight up.
  3. The basis in law for making a claim.
  4. At present, starting a lawsuit through the internet is not a possibility. However, a telematics system is often used to file the writ of summons electronically.

11. A request, for instance, has to specify:

  1. Each of the involved parties' full names and mailing addresses.
  2. The specifics of the case and the circumstances surrounding it.
  3. Outline of the procedure for collecting evidence.