28 Feb 2017

Enforcement and Recognition of Italian Judgements in England and of English Judgements in Italy

If you have got an Italian or English judgment concerning civil and commercial matters but the defendant/debtor fails to comply with it and his/her assets is abroad compared to where the judgment has been delivered (i.e. Italian judgment and debtor’s assets is located in U.K. or vice versa) you need to start a particular procedure ruled by European Law.

Regulation (EU) 1251/2012 (also known as Recast Brussels Regulation) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters has replaced Regulation (EC) 44/2001 (Brussels Regulation) and it is applicable to all the legal proceedings commenced on or after 10 January 2015 and to settlements concluded on or after the same date; for the ones concluded before 10 January 2015 the Brussels Regulation will continue to be applied if they fall within its scope.

According to Article 2 Recast Brussels Regulation any judgment given by a court or tribunal, that has jurisdiction over the substance of the matter, can be recognized and enforced.

Provisional or preliminary measures can also be enforced, excluding those where the defendant is not summoned to appear unless the judgment containing the measure is served on the defendant before the starting of the enforcement procedure.

In the event that the judgment is challenged in the member state of origin the court or authority before which the judgment given in another member state is invoked can suspend the enforcement procedure (Article 38 Recast Brussels Regulation).

CONDITIONS TO ENFORCE AND RECOGNISE A JUDGMENT

The main conditions required by the Recast Brussels Regulation to recognise and enforce a judgment are the following:

  1. a) The original court must have jurisdiction;
  2. b) The defendant had proper notice of the proceedings;
  3. c) There is no incompatibility with public policy;
  4. d) No conflicting domestic or foreign judgment exists;
  5. e) The judgment is final as to its effects.

On the application of the person against whom enforcement is sought, the enforcement of a judgment has to be refused if one of the above conditions is missing (Article 46 RBR).

TYPES OF ENFORCEABLE JUDGMENTS

1) Money judgments/awards;

2) Judgments ordering or prohibiting the doing of acts/injunctions;

3) Declaratory judgments;

4) Default Judgments;

5) Judgments made without notice and decisions granting provisional measures (in this case the judgment containing the judgment must be served on the defendant before the starting of the enforcement procedure);

6) Enforcement orders and attachment orders.

PROCEDURE TO RECOGNIZE JUDGMENTS (ARTICLE 37 RECAST BRUSSELS REGULATION)…

The registration of the judgment has to be requested in the High Court of England & Wales (in case of Italian judgment and the recognition has to take place in England and Wales) or in the competent Corte di Appello (in case of English judgment and the recognition has to take place in Italy) by submitting the following documents: 1) A copy of the judgment which satisfies the conditions necessary to establish its authenticity; 2) Original Annex I certificate and translation.

It is important that the order allows the debtor a period within which he/she can appeal against the registration or indeed pay the monies owed.

… AND TO ENFORCE JUDGEMENTS

In accordance with Art 39 Recast Brussels Regulation “A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required”.

EUROPEAN ENFORCEMENT ORDER

In case of uncontested claims (i.e. the debtor has agreed the debt that has been subsequently approved by the court) the European legislator (Regulation –EC- 805/2004) has created an important legal tool aimed to obtain your credit through a quicker and cheaper mechanism: the European Enforcement Order (EEO).

If you have an uncontested judgment of an Italian or English courts it can be recognized and enforced without the need for a declaration of enforceability and without any possibility of opposing its recognition. The judgment creditor can apply to obtain an EEO certificate from the court of origin, this certificate allows the judgment to be transferred to the enforcing country (Italy or UK) where the debtor resides for enforcement purposes and there it will be enforced automatically as if it were a judgment of that country.

If you are seeking to enforce an Italian judgment in UK or vice versa, KMLegalNet’ professionals can provide you with accurate legal advice and help you to obtain your credit in a quick and professional way.

Our team of English-speaking Italian lawyers can assist both local and foreign clients. Thanks to the support of an international network of experienced and skilled attorneys coming from different legislations, KMLegalNet can provide you with all the assistance you need.

Shall you have any questions do not hesitate to contact our Dispute Resolution Italian Department or send an email to info@kmlegalnet.com

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