On May 4th, 2016, Law Decree no. 59/2016 entered into force with the name “Urgent provisions regarding enforcement and bankruptcy proceedings, as well as measures in favor of the investors of banks in liquidation”. Such decree introduced a variety of modifications aimed at facilitating and speeding up the debt recovery.
The two aspects with the higher impact concern the provisions regarding the seizure and the ones about the immediate enforceability of the orders of payment.
The third comma of art. 492 of the Italian Code of Civil Procedure was completed with the following disposition “The seizure must contain the warning that, as per article 615, second comma, third period, the opposition is inadmissible if it is proposed after the sale or award as per articles 530, 552 and 569, save for the case in which it is grounded on facts occurred successively or the opponent demonstrates that he could not have promptly proposed it for a cause not attributable to him”. The operators of the sector shall then keep in mind this further content in the brief of seizure, in addition to the ones already mentioned in the Code of Civil Procedure (election of domicile, possibility to replace the seized goods with money).
On the contrary, the debtors concerned by the seizure face a reduction of the terms to file their opposition to the enforcement. The second comma of article 615 of the Code of Civil Procedure was in fact coordinated with the provision that the opposition to the enforcement, namely the opposition through which the right of the plaintiff to proceed with the enforcement is challenged, is inadmissible once the sale or the award of the seized good has been performed.
Article 532 of the Code of Civil Procedure has been modified with the replacement of the second and third period of the second comma as follows: “The judge sets the total number, not higher than three, of the attempts to sell, the criteria to determine the relative downwards, the modalities of deposit of the amount gained with the sale and the final term, not higher than six months, at the expiry of which the subject in charge of the sale shall return the file to the clerk. When the file is returned as per the previous period, the judge, if there are no instances as per article 540-bis, declares the anticipated end of the enforcement proceeding, also when the conditions as per article 164-bis of the implementing measures of the present code are not present”.
Compared with the previous legal framework, the law now imposes to the judge of enforcement to set a number of attempts of sale in the maximum amount of three, and to set the criteria and the modalities of conduct of the sale in relation to timing and downwards. After no more than six months from the beginning of the sale operations, if the seized goods have not been sold, the subject responsible of the sales shall return the file to the clerk.
Save for the case in which an integration of the goods to be seized has been asked (art. 540-bis Code of Civil Procedure) the enforcement proceeding shall be closed also when the conditions as per art. 164-bis of the implementing measures of the Code of Civil Procedure on the basis of which “When it is not possible to achieve a reasonable satisfaction of the rights of the creditors anymore, keeping also in mind the costs necessary for the continuation of the proceeding, the probability of liquidation of the good and the possible price of sale, the anticipated end of the enforcement proceeding is declared”.
A slight but relevant modification of art. 648, first comma of the Code of Civil Procedure is to be furthermore noted, regarding the immediate enforceability of the opposed order of payment. Such provision stated that “The judge grants the partial immediate enforceability of the opposed order of payment limited to the non-challenged amounts, save for the case in which the opposition has been proposed for procedural errors”. The decree, replaces the word “grants” with “must grant”. The Judge, therefore, while evaluating an opposition to an order of payment, shall, and not simply may, grant its immediate enforceability with respect to the amount that has not been challenged.