Interim and precautionary measures - Italy
TABLE OF CONTENTS
- 1 What are the different types of measures?
- 2 What are the conditions under which such measures may be issued?
- 3 Object and nature of such measures
- 4 Is there a possibility of appeal against the measure?
1 What are the different types of measures?
Interim measures comprise two main subgroups: protective measures (misure conservative), which include attachments of assets, and anticipatory measures (misure anticipatorie), which are frequent in family law. There are also urgent measures (provvedimenti d’urgenza, Section 700 of the Code of Civil Procedure), whose content is established by the court on a case-by-case basis according to the precautionary need to be met.
The key features of interim and precautionary measures are as follows: they follow simple, rapid procedures; as a rule they are provisional; and they are ancillary to the main proceedings in the dispute. However, this latter dependence on the main dispute is not an absolute characteristic. Since 2005 in some specific cases interim measures need not be followed by a substantive ruling. In these cases, the interim measure eventually becomes de facto a stand-alone and permanent instrument, even though it may not be the sort of measure that might be ordered in a judgment on the merits of the case.
2 What are the conditions under which such measures may be issued?
Issue of an interim measure is subject to two requirements:
A) The periculum in mora, i.e. the well-founded fear that, pending issue of a ruling on the merits, the right which the interim measure seeks to safeguard may be irreparably harmed;
B) fumus boni juris, i.e. a prima facie case for the claim.
2.1 The procedure
The application for an interim measure is lodged with the competent court, which as a rule is the same as that handling the main case. The court examines the case briefly, hearing both parties, and then issues the interim measure. The interim measure may also be issued without hearing the other party, if summoning the other party might prevent application of the measure.
2.2 The main conditions
Issue of an interim measure is subject to the two above-mentioned requirements: periculum in mora and fumus boni juris.
3 Object and nature of such measures
These are in the nature of provisional measures pending a judgment in the main proceedings. However, while this is always true for protective measures, which require that proceedings be pending in the main dispute, it is only partly true in the case of anticipatory measures, which remain effective whether or not there is a trial pending, although they have not got the same force as a final judgment determining the issues involved.
The content of the interim measures varies according to the type of danger they are designed to avert. For instance, attachment applies to the debtor’s assets. The order to reinstate an unfairly dismissed worker, on the other hand, is an obligation to perform an action.
3.1 What types of assets can be subject to such measures?
According to the need to be met, the measures may apply to movable or immovable property, but also to intellectual property and copyrighted works.
3.2 What are the effects of such measures?
Protective measures are designed to preserve the legal and factual situation existing at the time of the application, so as to ensure that the time needed to complete the main proceedings will not harm the claimant’s rights. Anticipatory measures, on the other hand, are designed to anticipate the effects of the final judgment in the main proceedings. .
3.3 What is the validity of such measures?
Interim measures remain in effect until delivery of the judgment in the main proceedings, which will replace them. Protective measures, for which the initiation of the main proceedings is required (for example authorisation for judicial attachment under Section 670 of the Code of Civil Procedure, or for protective attachment under Section 671 of the Code of Civil Procedure), also lose their effect if the main proceedings are not initiated, or continued within the time limits laid down by the law or by the court, or where a security required by the court has not been lodged. Anticipatory measures, including atypical ones (those whose content is determined not by law but by the court, pursuant to Section 700 of the Code of Civil Procedure), even where they cannot become part of the final ruling, continue in effect even where the main proceedings are not initiated or are initiated but subsequently discontinued.
4 Is there a possibility of appeal against the measure?
Decisions on interim measures, whether granting or rejecting the application, may be appealed (Section 669-terdecies), on the grounds that they are flawed, or by submitting to the appeal court additional circumstances and grounds not included in the initial application.
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Last update: 02/05/2017