Italy: Implementation of European Account Preservation Order in Italy
Within the European Union it is essential for economic operators to have adequate protection for cross-border civil and commercial credits such as sums owed by a company to a foreign client. For this purpose, the European Union adopted a series of regulations which apply uniformly in all EU countries, and which are binding for Member States.
In this regard, one of the most important regulations is European Regulation No. 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters which although directly applicable in Italy has required an implementation law due to some practical aspects of Italian legislation in the matter at stake.
In November 2020 the Italian Parliament approved the Legislative Decree no. 152/2020, which adapts the Italian legislation to the European Regulation and allows its full applicability.
In general, the European Regulation provides for the possibility for cross-border creditors to obtain a Preservation Order and thus seize the debtor's assets, both when the creditor has already obtained a judgment - or a non-judicial payment title - in a Member State (and before the creditor initiates proceedings in a Member State against the debtor), or at any stage during such proceedings up until the issuing of the judgment.
The aim of the Regulation is to prevent the transfer or the withdrawal of funds and assets, held by the debtor in a Member State if there is a concrete risk that a subsequent enforcement against the debtor would be prevented or be made substantially more difficult.
The Legislative Decree issued in Italy regulates some specific procedural issues, not governed by the European Regulation, such as - for example - the internal jurisdiction to issue a European Preservation Order for credits arising from a public deed or the concrete modalities for the research of bank accounts in Italy by cross-border creditors.
Actually, according to the Regulation, if the creditor has reasons to believe that the debtor holds assets in a specific Member State, but knows neither the name nor the address of the bank nor of the assets ‘holder, he may request the Court to obtain, from the competent authority of the Member State of enforcement, the necessary information.
In this regard, Legislative Decree No. 152/2020 provides that, in Italy, the research of bank accounts and assets has to be carried out using the telematic procedures provided for by article 492-bis of the Italian Code of Civil Procedure.
According to this provision, the President of the Court in the debtor's place of residence, prior specific request of the creditor, has to ask the bailiff the access to the electronic databases of public administrations (such as tax registry and social security databases) in order to obtain information on any assets and bank accounts of the debtor.
As regards to the competence to issue a Preservation Order in case of public deed, the Legislative Decree states that the competent authority is the Judge of the place where the public deed was issued.
This regulation, here above briefly described, is an important step to ensure the effective protection of cross-borders creditors and completes national procedures without replacing them.
The application of the regulation is excluded for some specific matters such as family rights arising out of marriage or comparable relationships, wills and successions, claims related to bankruptcy proceedings and other insolvency proceedings, social security matters and arbitration.
By Pier Paolo Bianchi