State of digitalization of ESCP Enforcement Procedures
The possibility to use electronic means to file a claim before the judge of peace (Giudice di pace) in the Italian civil procedure system is not implemented for all the offices.
However, it is possible to use electronic means to interact with the Giudice di pace in some districts (Bari, Bologna, Milano, Venezia and others).
There are no online platforms, nor any specific digitalised process for enforcement procedures in Italy.The main problem is the absence of adequate tools for digital case handling in the courts. Indeed, that the electronic forms of communication may only be used in the rare cases in which the dispute comes under the jurisdiction of an ordinary court as the court of first instance is a strong deterrent to the use of the procedure.
Regarding proceedings before an ordinary court and court of appeal, Ministerial Decree 44/2011 envisages that the lawyers involved, whose assistance in legal proceedings is mandatory, deposit their pleadings in electronic format.
The first is the absence of a service to provide real and effective practical assistance to the parties pursuant to Article 11 of the Regulation. In communications regulated by Article 25, Italian law merely indicates that the European Consumer Centre (ECC) offers practical assistance to consumers within the limits of its competence and that, in all other cases, parties requiring assistance may contact the Ministry of Justice. There are currently no help desk offices at the courts or the chambers of the justices of the peace, or at consumer associations, and nor are there any valid IT tools to help. This implies that the parties choose to rely on a lawyer even if they are not obliged to do so.
ESCP Procedural aspects:
1. Competent enforcement authority
2. Rules on service
Pursuant to Art. 13 ESCP Reg., service of documents should be made by postal service or through electronic means. For the purposes of said rule, the Italian civil procedural law regulates service of documents as follows.
a) Postal service is always admissible with the intervention of the court bailiff. This procedure is regulated by Law No. 890/1982. In brief, the bailiff uses the postal means to serve the document at the legal residence or domicile or place of abode of the defendant. If the addressee is “untraceable” at the selected venue (or similar, such as s/he refuses to accept service), the mail carrier deposits a notice of attempted service in the mailbox, deposits the document at the competent postal office to be collected by the party and gives notice of the service attempt via registered mail. Service is considered effective after ten days later than the registered mail is received or earlier if the document is collected directly by the defendant at the postal office.
b) Although electronic means of service are effective under the Italian code of civil procedure, they are not acceptable for proceedings before the Giudice di pace. Therefore, according to the Italian’s government’s communication on the ESCP Reg. the only means of communication and service accepted are those by postal services.
c) Even if Art. 136 c.p.c. provides the general possibility to use both fax/telefax and electronic means of communication between the court clerk and the parties’ lawyers, since the Italian Government’s Project on the Extension of e-civil Process is still under implementation, now communications between the court clerk of the Giudice di pace and lawyers may occur only via fax/telefax. While, if the competent court is the Tribunale or the Corte d’appello communications may occur also via certified e-mail address.
The language is Italian. The party seeking enforcement will need to let the court know in which Member State enforcement is contemplated and where there is more than one official language in that State, the specific place in that State. The certificate has to be in, or accompanied by a translation into, the appropriate official language of the State where enforcement is being sought or in another language which that State has indicated is acceptable to it.
4. Enforcement fees
For proceedings of first instance with a value of up to €1,100, the amount of court fee is €43; if the value is between €1,100 and €5,200, the amount is €98. The court fee can be paid at Italian post offices, at Italian banks by filling out a form known as ‘F23’, at retailers selling revenue stamps in Italy, or by bank transfer, although this final method is only available to persons not resident in Italy but holding current accounts with banks affiliated with the Italian Revenue Agency (Agenzia delle Entrate).
The costs of the proceedings under the scope of the ESCP Reg. follow the general principles that they are paid in advance by each party respectively and later charged to the losing party (principle of the victus victori) with the final judgement.
Fees for the claim and fixed registry fees may be qualified as “taxes” under the Italian law. Taxes must be paid following strict procedures set forth by the Government Income Revenue Authority (Agenzia delle Entrate).
5. Refusal/Stay/Limitation of ESCP enforcement procedures
There are no specific provisions on the issue of refusal, stay or limitation of the ESCP enforcement procedures. The stay or limitation according to Art. 23 ESCP Reg. shall not be pursued with the procedure for stay under Arts. 623 ff. c.p.c., which do not contain provisions similar to those of Art. 23 ESCP Reg., but rather with the general procedure set forth in Arts. 486-487 c.p.c. (motion – “istanza” – to the court, decision by ordonnance and challenge via Art. 617 c.p.c.). Stay and limitation pursuant to Arts. 623 ff. c.p.c. would also be applicable, with different the grounds for the request than the ones applicable under Art. 23 ESCP Reg.
Art. 480 co. 3 c.p.c. provides that challenges to enforcement proceedings (Arts. 615 ff. c.p.c.) will be filed before the court in whose district the writ has been served. Also, (ii) Art. 489 c.p.c. provides that communications and services to the creditor will be made with deposit in the registry at the court competent for execution proceedings. Therefore, to avoid such changes in procedure, the creditor shall indicate residence or elect domicile in Italy for the purposes of enforcement proceedings.
- Even though the ESCP Reg. outlines a generally written procedure, rules regarding proceedings before the Giudice di pace under Italian civil procedural law follow the opposite principle, being essentially oral. Accordingly, for example, considering the rules set forth in Art. 9 ESCP Reg., the court should use the written testimony procedure regulated by Art. 257 bis c.p.c. and Art. 103 bis disp. att. c.p.c., but no implementation rule or indication has been provided on that regard.
- The possibility to use electronic means to file a claim before the Giudice di pace in the Italian civil procedure system is not implemented for all the offices. Thus, the applicable procedure under Italian civil procedural law is not entirely complying with the rules for communication laid down in the ESCP Reg.
- There are some critical issues for the enforcement of incoming judgments under the ESCP Reg. In particular, it is not clear whether Art. 23(a) ESCP Reg. has any applicability under Italian civil procedural law or rather if a party may seek to obtain a provisional measure that fits to her/his needs according to those available under Arts. 669 bis ff. c.p.c.
 See the government’s Project on the extension of the e-civil Process to the offices of the Giudice di pace: http://www.pongovernance1420.gov.it/it/progetto/estensione-del-processo-civile-telematico-ai-giudici-di- pace/
 For more information see:
http://www.pongovernance1420.gov.it/it/progetto/estensione-del-processo-civile-telematico-ai-giudici-di-pace/ and https://gdp.giustizia.it/sigp/index.php?menu=guida&pagina=guida.
 Here it follows a brief general overview on the rules on service in Italy (Arts. 137 ff. c.p.c.). In general, service may be made (i) by hand delivery (Arts. 138 ff. c.p.c.), (ii) by postal service (Art. 149 c.p.c.) and (iii) by certified email address (Art. 149 bis c.p.c.). Service, unless where otherwise provided by the relevant provisions, is accomplished by the court bailiff, upon request by the party (usually the claimant), by the public prosecutor or the court clerk (Art. 137 co. 1 c.p.c.).
(i) Service in the hands of the addressee is regulated by Arts. 138 ff. c.p.c.. Typically, the addressee is searched at her/his domicile or anywhere else within the district of competence of the court bailiff or, subordinate to failure of such procedure, at her/his legal residence or at the office where s/he is employed or carries out her/his business. Practically, the party requesting the service is required to provide the bailiff with an address where the addressee is supposed to be found. If the addressee is not found in one of said places, the copy of the document is delivered to a member of the addressee’s family or to other persons related to the abovementioned venues. If it is not possible to find the addressee (or other persons as specified by the law) or s/he refuses to receive service, the bailiff (1) deposits a copy of the document at the competent municipal office, (2) posts a notice of this procedure in a closed and sealed envelope on the door of the house or of the other mentioned venues and (3) informs the addressee of said formalities via registered mail.
(ii) Postal service is maybe the most used in practice and may be implemented upon request of the party or, in case service must be made outside the regional competence of the court bailiff, by the court bailiff her/himself. Postal service is always admissible with the intervention of the court bailiff. This procedure is regulated by law no. 890/1982. In brief, the bailiff uses the postal means to serve the document at the legal residence or domicile or place of abode of the defendant. If the addressee is “untraceable” at the selected venue (or similar, such as s/he refuses to accept service), the mail carrier (1) deposits a notice of attempted service in the mailbox, (2) deposits the document at the competent postal office to be collected by the party and (3) gives notice of the service attempt via registered mail. Service is considered effective after ten days later than the registered mail is received or earlier if the document is collected directly by the defendant at the postal office.
(iii) Service with electronic means is admissible if the defendant has a certified email address collected in the dedicated public registers (Art. 149 bis c.p.c.).