by Antonio Leandro
On 18 October 2022 new rules entered into force in Italy governing the procedure to recognize and enforce foreign judgments, authentic instruments, court settlements, and out-of-court agreements. The revision has been brought by Article 24 of legislative decree no 149/2022 (LD 149/2022), which implements law no 206/2021 entitling the Italian Government to revise ADR instruments alongside parts of civil proceedings, including the enforcement of judgments.
As regards foreign judgments, the revision mostly consists in adding Article 30-bis to legislative decree no 150/2011 (LD 150/2011) in order to determine the internal procedure related to the recognition and enforcement pursuant to EU acts or international conventions, including through declaratory relief or the settlement of disputes concerning the refusal of recognition.
Preliminarily, it is worth recollecting that EU acts in civil and commercial matters usually compel Member States to recognize judgments from other Member States without any special proceeding being required. Instead, they differently govern the enforcement depending on whether a preliminary declaration of enforceability is required. On the other hand, the Italian general system of private international law – which is mostly embodied in law no 218/1995 and applies where EU acts or international conventions do not – allow for automatic recognition, while requiring a preliminary step (exequatur) for foreign judgments to be enforced. This step entails assessing the requirements for recognition, which is also needed in case of non-compliance or objection to the recognition. The procedure runs under the combination of Articles 30 of LD 150/2011 and 67 of law no 218/1995 when such assessment represents the principal issue. Finally, international (bilateral or multilateral) conventions generally distinguish between automatic recognition and enforcement upon previous exequatur.
That being said, Article 30-bis makes it clear which procedure is needed to recognize and enforce a foreign judgment by providing when ex parte or adversarial proceedings are required, and eases the latter by extending to it the new ‘simplified’ procedure under Article 281-decies ff of the code of civil procedure (incidentally, the ‘simplified’ procedure will apply to recognition and enforcement under Article 67 of law no 218/1995 as a result of a bespoke amendment to Article 30 of LD 150/2011).
To begin with the internal proceedings triggered by EU acts, Article 30-bis (1) sets forth ex parte ‘in chamber’ proceedings where those acts do not require adversarial proceedings, while it calls for the application of the ‘simplified’ procedure in the reverse situation.
Ex parte proceedings cover the enforceability and declaratory assessments as to the recognition under i) Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338/1, ii) Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1, iii) Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L183/1, iv) Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2016] OJ L183/30, and v) Regulation (EU) 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L201/107. This list is not exhaustive.
Applications against the ex parte-rendered decree trigger an adversarial ‘simplified’ procedure, which also applies to petitions having as a principal issue the refusal of recognition.
As regards EU acts that provide for enforceability without exequatur, applications for refusal of recognition or enforcement, or for negative declaratory assessments of the grounds for refusal undergo the ‘simplified’ procedure (Article 30-bis (4)). The relevant EU acts are i) Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1, ii) Regulation (EU) 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L181/4, iii) Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) [2015] OJ L 141/19, iv) Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction [2019] OJ L178/1. This list is not exhaustive as well.
Turning to recognition and enforcement by virtue of international conventions to which Italy is a party, the exequatur and the positive or negative assessment of the grounds for recognition as a principal issue trigger a ‘simplified’ procedure unless the relevant convention provides otherwise (Article 30-bis (5)).
The Court of appeal rules on the applications under Article 30-bis except for the procedure triggered by Regulation (EU) 1215/2012, Regulation (EU) 606/2013, Regulation (EU) 2015/848, and Regulation (EU) 2019/1111 (Article 30-bis (6)), in respect to which the Tribunal’s competence is generally provided. The territorial competence is determined by the relevant EU act or convention, otherwise, if they lack connecting factors, by Article 30 of LD 150/2011, which refers to the place of enforcement. Parties may apply to the Italian Supreme Court against the decisions of the Court of appeal under the grounds listed in Article 360 of code of civil procedure.
Article 30-bis (7) concludes by stating to also govern the mentioned internal proceedings that apply to authentic instruments, court settlements, and out-of-court agreements. Article 30-bis (7) declares to work in compliance with limits and conditions from the EU law and international conventions. The provision is consistent with the scope of those EU acts or international conventions that also govern the enforcement of different acts than judgments.
As the provision calls for compliance with the “EU law”, it seems to go beyond the abovementioned instruments. Moreover, as already noted, the mentioned lists of EU acts are not exhaustive. Taking the case of pre-insolvency or insolvency out-of-court frameworks, the question arises as to whether Article 30-bis (7) applies to instruments resulting from the implementation of Directive (EU) 2019/1023 of 20 June 2019 on restructuring and insolvency ([2019] OJ L172/18) that do not fall either under Regulation (EU) 2015/848 or, hypothetically, Regulation (EU) 1215/2012. We are inclined to negative answer as the Directive does not deal with cross-border recognition and enforcement (notwithstanding it aims to facilitate the recognition of preventive restructuring procedures), whereas Article 30-bis establishes proceedings for EU acts that instead do.
Conversely, since Article 30-bis (7) also works with respect to international conventions, it might be applicable to the English orders approving a Scheme of Arrangement upon (not clearly settled) assumption that such orders fall within the IT-UK bilateral convention of 7 February 1964 for the reciprocal recognition and the enforcement of judgments in civil and commercial matters.
It goes without saying that all the topics related to Article 30-bis of LD 150/2011 require in-depth analysis.
a.leandro@bmvinternational.com
