Legislative Decree no. 231 of 9 October 2002, published in Gazzetta Ufficiale no. 249 of 23 October 2002, has finally enacted Directive 2000/35/CE directed at problems arising from delays in payment in commercial transactions.
The Italian legislator has taken this opportunity to implement a radical reform of the limits which for more than fifty years have limited access of parties litigating in Italy to summary and ex parte proceedings when the person or the entity to be sued did not have a domicile or a registered office "in the territory of the Italian Kingdom, its colonies and its dominions".
In fact, Article no. 9 of the said D.L. 231/2002, resulting from art. no. 26 of Law no. 39 of 1 March 2002 (which itself enacted the European Directive above) provides for the removal of the last paragraph of Article no. 633 of the Italian Code of Civil Procedure (c.p.c.) which used to prevent Italian courts from issuing summary orders for payment if such an order was to be served outside the country.
The necessity for the internationalisation of the summary proceedings had already been brought to the attention of the European Court of Justice, which decided, on 22 June 1999 (C-412/97), that the last part of art. 633 of the Italian code of civil procedure was not in violation of article no. 56 of the EC Treaty even if in practice the result was the existence of two different civil procedure rules, one for domestic litigation - where the additional remedy in discussion existes - and one for international litigation - where the plaintiff seeking the recovery of a pre-liquidated sum of money, a specific asset or a specific quantity of fungible goods had no choice but to commence ordinary proceedings. This arose with reference to the inconsistency between Article 633 and Article 186 ter c.p.c., the latter providing for an order for payment to be allowed, even ex parte, in the course of ordinary proceedings, without any territorial limitation, in otherwise absolutely identical situations. In practice, Article 186 ter allowed the limitations of article 633 to be avoided, but only upon condition that ordinary proceedings had already been commenced.
A further means of avoiding the limitation of art. 633 c.p.c. was provided by the recognition of the European Court of the finality of Italian orders for the purpose of their enforceability under Brussels and Lugano Conventions, so that an Italian creditor was able to omit any indication of the location of the debtor to obtain the summary order from the Court and, once the deadline for appeal expired, obtain the recognition and enforcement of the order either in Italy or in any other EU country in which the debtor may have goods or credits, all objections being barred by res judicata.
Now, under the new law, an order for payment may be freely sought and obtained against a foreign debtor after summary proceedings lasting a few weeks. This certainly increases the appeal of Italian jurisdiction for the recovery of outstanding debts, given the simplicity, speed and low cost of the procedure involved, which allows for, amongst other things, the immediate quantification of the debt and the recovery of legal costs and interest by the applicant.
Another interesting novelty is that D.L. no. 231/2002 has modified as well Article no. 641 c.p.c, by introducing a timeframe within which the judge should issue the order. Having regard to the purpose of Directive 2000/35/CE - the elimination of delays of payment in commercial transactions - Article no. 9 of the D.L. provides that the summary order for payment must be granted to the applicant, if all legal requirements be made, not later than thirty days from the date of lodging. This deadline is not mandatory and depends unfortunately on the efficiency of the courts, but victims of systematic delays may have a cause of action against the Ministry of Justice for damages arising from the breach of the principle of the reasonable duration of trials.
On the other hand, under the new Article 641 the time limit within which an appeal can be entered has been diversified on the basis of the place where the order is served. In particolar, as far as of international orders are concerned, such term has been increased from forty to fifty days in the event of service within EC (save that the Judge has the discretion, on the application of the serving party, to decrease the term to as little as twenty days) and to sixty days in the case of service outside the EU (save that the judge has, again on the application of the serving party, the discretion to reduce the time limit to as little as thirty days, or indeed increase the time limit to as much as one hundred and twenty days).
The last provisional to be modified by Article no. 9 point 3) of D.L. 231/2000 is Article 648 c.p.c., which allows for the immediate enforcement of the order while an appeal is pending, which can be granted whenever the appeal against the order is not based on written evidence or is based upon arguments which can be promptly decided. The amendments to the article provide that in case of the lodging of an appeal, apart from the case of an appeal based on defects in procedure, the judge must in any event authorise the immediate enforcement of the order in respect of undisputed sums.
The new provision overcomes the problem which previously existed with respect to the payment of undisputed sums which were part of an order for payment, as the judge pending an appeal could only affirm or deny a motion for its immediate enforcement "as is", so that an offer of proof that one euro was not owed was sufficient to paralyse the entire creditor's demand until the final judgement on the appeal. Now the court has a third option, i.e., that of authorising the enforcement of the order with respect to the sums which are not seriously disputed even when the enforcement of those actually disputed cannot be granted.