Article 521 bis of the Italian Civil Procedure Code – Introduced by Law Decree n. 132/2014 (converted into Law 162/2014), and subsequently amended by Law Decree 83/2015 (converted into Law 132/2015) – seems to be a viable alternative to third-party attachment, particularly for companies operating in the road haulage sector.
Indeed, also because of the economic crisis, creditors find it increasingly difficult to collect their claims through third-party attachments, especially when they act against banks in which they assume (or rather, they hope!) that the debtor is keeping his last savings.
Therefore, under these circumstances, Article 521 bis seems to offer another way to enforce claims against debtors, providing a procedure designed specifically to expropriate motor vehicles and trailers owned by debtors, as an alternative to the “classic” attachment of movable property provided by Articles 513 and following of the Italian Civil Procedure Code.
Let us analyze the major differences and the main advantages that characterize this new form of third-party attachment.
- The possibility of registering the attachment in the P.R.A. (Italian Public Automobile Register) even if the judicial officer does not find the goods.
Unlike the classic procedure of expropriation of movable properties – according to which if the Judicial Officer does not find the properties, the fulfillment of the typical effect of the attachment and its entry into public registers cannot take place – the new law provides the solution to avoid this risk, allowing, in any case, the registration of the attachment in the P.R.A. and the immediate realization of the resulting effects.
For such purpose, the rule states:
“1. In addition to the forms set out in Article 518, the attachment of motor vehicles and trailers can be carried out also by notification addressed to the debtor and subsequent registration of an act exactly indicating them, with the details required by the special law for their entry in public registers…”
“5. Once the last notification has been given, the Judicial Officer hands the act of attachment to the creditor without delay, so that he may proceed to its registration in the public registers …”
- Possibility for the creditor to request the assignment of the attached motor vehicles and trailers.
A further element of interest – especially for companies operating in the road haulage sector – is the possibility for the creditor to request the assignment of the vehicles.
In fact, the law states that:
“In derogation from Article 497, the application for the assignment or the application for the sale shall be submitted within forty-five days from the filing of the registration note by the creditor …”
Therefore, this provision seems to be one of the cases in which the creditor can request the assignment of the good, in accordance with art. 505 of the Italian Civil Procedure Code, even though it is currently still unclear what is the value based on which it is possible to proceed with the assignment and what is the time when the relevant application may be filed.
In the hope that the legislator clarifies these doubts which concern more than anything the practical side of the new procedure, road haulage companies who have to collect a debt from their competitors may consider the procedure laid down by Article 521 bis of the Italian Code of Civil Procedure to try to collect their claims in full, or at least to increase their vehicle fleet.
(Bologna Office– Federico Tassinari – 0039(0)512750020)
