Foreign judgments in Italy: civil and commercial matters

Recognition and enforcement of judgments delivered in European union member states: regulation (EU) no. 1215/2012

Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters (Regulation) replaced, starting 10 January 2015, Council Regulation (EC) No. 44/2001 (Judgment Regulation), which in turn replaced (by incorporation) the 1968 Brussels Convention. The Regulation is a transposition of the regime under the Judgment Regulation, with a few significant changes.

• Scope of application:
  • judgments delivered by courts in Member States at the outcome of proceedings initiated on or after 10 January 20151 and that concern civil and commercial matters.
• Notion of judgment:
  • “any judgment delivered by a court or tribunal of a Member State… including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court”
  • inclusion of provisional and protective measures, provided that: (i) they were issued by a court that, as per the Regulation, had jurisdiction over the merits; and (ii) the defendant was summoned to appear or (if not) the decision containing the measure was served on the defendant before enforcement (Article 2).
• Recognition:
  • no need for special procedures (Article 36)
  • documents required: the applicant must provide the court process server (ufficiale giudiziario) at the court where recognition is sought with: (i) an authenticated true copy of the judgment; (ii) the certificate required2 ; and (iii) a certified translation into Italian (if requested by the court process server)
  • grounds for refusing recognition: (i) it is “manifestly contrary to public policy (ordre public) in the Member State addressed”; (ii) the right to be heard has not been respected; (iii) the judgment is irreconcilable with a judgment delivered at the outcome of a dispute between the same parties in the Member State addressed; (iv) “the judgment is irreconcilable with an earlier judgment delivered in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed; (v) the authority which issued the judgement had no jurisdiction” (Article 45)
  • no revision of the merits
  • procedure to ascertain the absence of grounds for refusal of recognition
    • ordinary court (tribunale ordinario) located where the debtor is domiciled/has its registered office is competent to assess the absence of grounds for refusal of the recognition of the foreign judgment (Article 36.2)
    • to avoid future objections from the debtor
    • contentious proceedings set forth under Article 702-bis ff. of the Italian Code of Civil Procedure (average time of 1–1.5 years depending on the approach of the court involved). The decision can be challenged before the court of appeal (average time of 1–2 years) and then before the Italian Supreme Court (Corte di Cassazione) (average time of 2–3 years).
• Enforcement
  • the judgment rendered in a Member State is enforceable in Italy no proceedings required
  • the foreign judgment is considered a valid title for enforcement (titolo esecutivo) under Article 474 ff. of the Italian Code of Civil Procedure and allows enforcement over the debtor’s assets
  • enforcement proceedings are governed by Italian law
  • enforcement against the debtor cannot begin until at least ten days after service of the judgment and of the certificate on the debtor
  • documents required: the party seeking enforcement must provide the competent enforcement authority (court process server) with: (i) an authenticated true copy of the judgment; (ii) the enforcement certificate required under Article 53; and (iii) a certified translation into Italian (if requested by the court process server) (Article 42)
  • if “the person against whom enforcement is sought is domiciled in a Member State other than the Member State of origin”, the party can request a translation of the judgment into a language that he or she understands, or into the official language of the country in which he or she is domiciled, and, except for conservatory measures, enforcement cannot take place until the translation has been received (Article 43.2)
  • grounds for challenging enforcement: challenging the enforcement is possible on: (i) the grounds for denial of recognition set out under Article 45 (Article 47); (ii) the grounds set out by ordinary rules of Italian civil procedure and therefore under Article 615 ff. of the Italian Code of Civil Procedure, to the extent they do not conflict with Article 45 (Recital 30)
  • procedure for challenging enforcement: the relevant proceedings must be initiated before the ordinary court and are governed by Italian law, following the procedure under Article 702-bis ff. of the Italian Code of Civil Procedure (average time of 1–1.5 years depending on the approach of the court involved). The decision can be challenged before the court of appeal (average time of 1–2 years) and then before the Italian Supreme Court (average time of 2–3 years). The party seeking refusal of enforcement must provide the court with a copy of the judgment and, if necessary, a translation of the judgment. Additionally, where enforcement has already begun, the court addressed (in Italy, the competent judge for enforcement proceedings (giudice dell’esecuzione) may, under Article 44 and upon the application of the party against whom enforcement is sought: (i) limit the enforcement procedure to protective measures; (ii) make enforcement conditional on the provision of a security; and (iii) suspend the enforcement proceedings when the enforceability of the judgment is suspended in the Member State of origin (Article 44.2).

Recognition and enforcement of judgments delivered by courts in non-EU states

Whenever Italian Courts are requested to recognise or enforce judgments delivered by courts located in states that are not Member States, the related rules are found: (i) in the international conventions between Italy and the state where the court that delivered the judgment is located; or, if no conventions exist: (ii) in the Italian Private International Law (Law No. 218 of 31 May 1995, PIL)3.

Italy is a party to various bilateral conventions that lay out rules on the recognition and enforcement of judgments in civil and commercial matters and that therefore find application instead of the PIL. Moreover, as a member to the EU, Italy is a party to: (i) the 2007 Lugano Convention on the recognition and enforcement of judgments in civil and commercial matters; and (ii) the 2005 The Hague Convention on choice of courts agreements, which also governs the recognition and enforcement of judgments among states that have signed and ratified the convention. The rules of the Lugano or Hague Conventions may extend to the UK if it accedes to either of them4.

2007 Lugano Convention on jurisdiction and on the recognition and enforcement of foreign judgments in civil and commercial matters

The 2007 Lugano Convention replaced the 1988 Lugano Convention on jurisdiction and on the recognition and enforcement of foreign judgments in civil and commercial matters, which was the parallel convention to the 1968 Brussels Convention entered into among the EU Member States on the same matters with the purpose of extending the regime of the Brussels Convention also to the relationship between the EU Member States on one side and the European Free Trade Association member states (Switzerland, Norway and Iceland) on the other side. The purpose of the 2007 Lugano Convention was to bring its provisions into line with the innovations introduced to the Brussels regime by the Judgment Regulation in 2001.

• Scope of application:
  • civil and commercial matters
• Notion of judgment:
  • for the purpose of recognition and enforcement, “whatever the judgment may be called”: “any judgment given by a court or tribunal of a State bound by this Convention… including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court” (Article 32)
• Recognition:
  • a judgment delivered by a court located in a state that is party to the 2007 Lugano Convention must be recognised in the other contracting states “without any special procedure being required” (Article 33).
• Documents needed:
  • a copy of the judgment “which satisfies the conditions necessary to establish its authenticity”. The court or the competent authority can also require a certified translation of the judgment (Article 55)
• Grounds for denial of recognition: a judgment is not recognised if:
  • recognition is “manifestly contrary to public policy in the State in which recognition is sought”
  • if the judgment was given in default of appearance, “if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”
  • the judgment is “irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought “or is “irreconcilable with an earlier judgment given in another State bound by this Convention or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State addressed” (Article 34). The court addressed with recognition cannot review the merits of the case decided by the foreign court. The court where recognition is sought may stay the proceedings if the judgment whose recognition is sought is challenged in the state where it was rendered
• Enforcement:
  • “A judgment delivered in a State party to this Convention and enforceable in that State shall be enforced in another State party to this Convention when, on the application of any interested party, it has been declared enforceable there” (Article 38)
  • Documents needed: (i) a copy of the judgment “which satisfies the conditions necessary to establish its authenticity” and (ii) the certificate required under Article 545. The court or the competent authority can also require a translation of the above documents, which must be certified by a person qualified in one of the states that are parties to the 2007 Lugano Convention (Article 53–55),
  • Procedure:
    • application to seek enforcement before the court of appeal located where execution is sought. The procedure is a fast, non-contentious one (volontaria giurisdizione), upon application of the interested party, the court of appeal must ascertain that the judgment complies with Article 45. If the court of appeal upholds the request for enforcement, the applicant must serve the party against whom enforcement is sought with an authenticated true copy of the judgment along with the declaration of enforceability
    • challenge against the decision of the court of appeal can be lodged before the same court of appeal. The related proceedings are contentious proceedings. No time-limit is envisaged to lodge an appeal against the court of appeal’s rejection of the application for a declaration of enforceability, while, on the other hand, under Article 43.5, a challenge against the declaration of enforceability of a judgment must be lodged within one month from the date of service thereof. The judgment on the challenge can be appealed before the Italian Supreme Court
  • Penalties: under Article 49, the foreign judgment that orders periodic payment by way of a penalty is enforceable in the state addressed “only if the amount of the payment has been finally determined by the courts of the State of origin”.

2005 Hague Convention on exclusive choice of court agreements

• Scope of application: “exclusive choice of court agreements” concluded in civil or commercial matters in international cases. For the purposes of recognition and enforcement, a case is regarded as “international” if the judgment whose recognition and/or enforcement is sought is delivered by a court of a contracting state different from the state where recognition and enforcement is sought. For the purposes of enforcing a judgment in Italy, the 2005 Hague Convention applies if the judgment is delivered in another contracting state other than the EU Member States, and by a court with jurisdiction on the basis of an exclusive choice of court agreement, which is valid and enforceable under the 2005 Hague Convention.
• Notion of judgment: any decision on the merits, irrespective of its formal denomination, including a determination of costs and expenses (even if issued by the court’s clerk, rather than by a judge), provided that it is a “decision on the merits which may be recognised or enforced” under the 2005 Hague Convention. Provisional and protective measures do not fall under this notion of judgments. Additionally, judicial settlements approved by a court of a contracting state designated in an exclusive choice of court agreement, or “which have been concluded before that court in the course of proceedings, and which are enforceable as a judgment in the State of origin”, must be enforced in other contracting states under the 2005 Hague Convention in the same manner as a judgment (Article 12).
• Pre-conditions to grant recognition and enforcement: (i) The court addressed must not review the merits of the judgment and is bound by the findings on which the court of origin based its jurisdiction, unless the judgment was given in default (Article 8.2); (ii) a judgment must be recognised only if it has effect in the state of origin and is enforced only if it is enforceable in that state. The judgment is subject to review in the state of origin or if the time limit for seeking ordinary review has not yet expired, recognition or enforcement may be postponed or refused, even if the refusal does not preclude a subsequent application for recognition or enforcement of that judgment.
  The addressed court grants recognition and enforcement of a severable part of a judgment “if recognition or enforcement of that part is applied for or only part of that judgment is capable of being recognised or enforced” under the Convention (Article 15).
• Grounds for denial of recognition and enforcement:
  • the choice of court agreement was null and void under the law of the state of the chosen court, unless the chosen court decides that the agreement is valid
  • either party lacked the capacity to conclude the agreement under the law of the requested state
  • the statement of claim or equivalent document, including the essential elements of the claim, was not served on the defendant in sufficient time and in such a way as to enable him/her to arrange for defence, unless the defendant entered an appearance and presented his/her case without contesting notification in the court of origin, provided that the law of the state of origin permitted notification to be contested; or ii) was notified to the defendant in the requested state in a manner incompatible with fundamental principles of the requested state concerning service of documents
  • the judgment was obtained by fraud in connection with a matter of procedure
  • recognition or enforcement would be manifestly incompatible with the public policy of the requested state, including situations in which the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State
  • the judgment is inconsistent with a judgment given in the requested state in a dispute between the same parties
  • the judgment is inconsistent with an earlier judgment delivered in another state between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested state (Article 9).

Recognition and enforcement may be refused also if the judgment awards damages, including exemplary or punitive damages, which does not compensate a party for a loss or damage actually suffered; in this regard, the court considers whether and to what extent such damages serve to cover the costs and expenses of the proceedings (Article 11).

• Recognition and enforcement procedure: the court of appeal must conduct the proceedings in accordance with Article 702-bis ff. of the Italian Code of Civil Procedure (procedimento sommario di cognizione – average time of 1–1.5 years depending on the approach of the court involved). The related decision can be appealed before the Italian Supreme Court (average time of 2–3 years).
• Documents needed: “(a) a complete and certified copy of the judgment; b) the exclusive choice of court agreement, a certified copy thereof, or other evidence of its existence; c) if the judgment was given by default, the original or a certified copy of a document establishing that the document which instituted the proceedings or an equivalent document was notified to the defaulting party; d) any documents necessary to establish that the judgment has effect or, where applicable, is enforceable in the State of origin; e) in the case” of judicial settlements, “a certificate of a court of the State of origin that the judicial settlement or a part of it is enforceable in the same manner as a judgment in the State of origin” (Article 13).

Italian Law No. 218/1995

• Scope of application: judgments issued by courts in states other than EU Member States and with whom no bilateral or multilateral conventions exist.
• Notion of judgment: There is no definition of what falls within the category of “judgments”. According to the ministerial explanatory memorandum on the law (relazione ministeriale), “judgment” (sentenza) means any definitive measure, delivered at the outcome of legal proceedings. which, if it had been brought before the Italian courts, would have ended with a judgment and, more broadly, the measure that has the effect of ascertaining, establishing, amending or terminating a right to a personal capacity or situation.
• Pre-requisites for the recognition and enforcement of foreign judgments in Italy: judgments delivered by a foreign court must be recognised in Italy without proceedings being necessary if:
  • the authority rendering the judgment had jurisdiction under the criteria of jurisdiction in force under Italian law
  • the defendant was properly served with the document instituting the proceedings in accordance with the law in force in the place where the proceedings were carried out, and the fundamental rights of defence were complied with
  • the parties proceeded to the merits in accordance with the law in force in the place where the proceedings were carried out, or default of appearance was pronounced in pursuance of that law
  • the judgment became final according to the law in force in the place where it was pronounced
  • the judgment does not conflict with any other final judgment handed down by an Italian court
  • no proceedings are pending before an Italian court between the same parties and on the same matter as that of the foreign proceedings
  • the provisions of the judgment do not conflict with the requirements of public policy (ordre public).
• If recognition of the foreign judgment is challenged or if enforcement is required, the interested party must turn to the court of appeal in the district where enforcement is sought (Article 67). Article 30 of Italian Legislative Decree No. 150/2001 envisages that the procedure before the court of appeal follow the procedure under Article 702-bis ff. of the Italian Code of Civil Procedure (average time of 1–1.5 years depending on the approach of the court involved). The judgment of the court of appeal can be appealed before the Italian Supreme Court (average time of 2–3 years).

1The Judgment Regulation still applies regarding the recognition and enforcement of judgments delivered at the outcome of proceedings initiated before 10 January 2015.
2Under Article 53 of the Regulation, “The court of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex I”. The certificate contains: (i) the issuing Authority; (ii) the identification data of the claimant and defendant; and (iii) the identification data and the content of the judgment.
3PIL applies to proceedings instituted from 31 December 1996 (Article 72 of Law No. 218/1995). Caselaw has stated that the term “judgments instituted” refers to judgments recognising a foreign judgment, and not to those in the context of which the judgment was issued (Italian Supreme Court, decision no. 9247/2002).
4The UK has indicated a preference to put in place a regime resembling Brussels Recast and adopt Lugano. This currently appears an unlikely eventuality as (a) the EU27 (and EFTA) states will each need to agree to this as both regimes require reciprocity, and (b) the UK would be effectively accepting the direct supervisory jurisdiction of the CJEU or at least agreeing to have regard to CJEU jurisprudence (which is anathema to certain UK politicians). The most likely (and conservative) view is that the UK will ratify Hague, which does not require any ratification by other Contracting States. Hague will apply prospectively from the date on which it enters into force in the UK (being a date in 2019) unless a unilateral statement of ratification by the UK or an agreement between each of the contracting states confirms that it will apply retrospectively from an earlier date (e.g. 01 October 2015, being the date the Convention entered into force in the UK by virtue of its EU membership).
5Article 54 requires the competent authority of the state where the judgment was handed down, at the request of any interested party, to issue a certificate using the form in Annex V to the Convention.