The sequestro conservativo (freezing order) is an interim order aimed to prevent a party/debtor from enjoying their assets in prejudice of the creditors’ rights.
This order is governed under the Italian law, particularly at Articles 2905 and 2906 Civil Code and Articles 671 Civil Procedural Rules, and it is an interim measure, generally linked to a main proceeding.
In accordance with Art. 671- 687 CPC “the judge, at the request of the creditor who has a grounded threat of losing the assets aimed to secure his claim, can authorize a precautionary seizure of debtor’s real or personal property or sum of money and credits, within the limits traced by the law on seizure”
Through the freezing order, granted by the court, the creditor can be sure that his/her debtor’s assets will remain at reach. Indeed, the order prevents, not just partly but, all the assets belonging to the debtor from any action intended to diminish or damage these assets in any way.
Conditions, Requirements & Procedure
In accordance with Italian law, two are the main conditions required to obtain a preservation order:
1)the application by the claimant/creditor is prima facie substantiated by factual or documentary evidence;
2)the delay in obtaining a judgment on the merits may prejudice in an imminent and irreparable way, the claimant’s right.
The application must be submitted by the creditor, with the aid of an Italian lawyer, and lodged before the Tribunale. At the time of the hearing, the judge shall deliver a judgment allowing or rejecting the application.
If the time fixed for the hearing is likely to cause some prejudice to the creditor, the judge may grant the order before the hearing on the basis of the sole application submitted by the creditor “without listening to the debtor” (inaudita altera parte), in this case the judge has to schedule the hearing within 15 days from the date of the decision.
If the judge decides to grant the measure, the debtor/defendant can appeal before the Tribunal’s bench within 15 days from the decision (or from his notification) and the decision is normally taken within 20 days from the submission of the appeal.
The enforceability of the measure is not automatically suspended by the appeal unless the appellant asks to suspend the execution or to obtain the granting of a security.
The freezing order must be executed within 30 days from its issuance or it will cease to be effective. It will also cease to be effective if the legal proceeding on the merits is not started within 60 days from the granting.
If your credit is ruled under Italian law and you think that it is at risk, Kenton & Miles’ professionals can provide you with accurate legal advice and help you to understand which legal measure is the most appropriate to enforce your credit and your rights.
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, Kenton & Miles Legal can provide you with all the assistance you need.
Please do not hesitate to contact our Italian department