Recovering a Debt in Italy from Spain: Three Routes, One Decision

Three routes against an Italian debtor

A Spanish company owed money by an Italian customer has three principal procedural routes available:

• 01A Spanish proceso monitorio (Articles 812 et seq. of the Ley de Enjuiciamiento Civil), followed, where appropriate, by enforcement of the resulting title in Italy under Regulation (EU) No. 1215/2012.
• 02A European Order for Payment (Regulation (EC) No. 1896/2006), the standardised EU procedure for qualifying cross-border pecuniary claims.
• 03A decreto ingiuntivo filed directly before the competent Italian court, where the written evidence satisfies the requirements of Italian law.

All three routes can ultimately lead to enforcement against assets in Italy. They differ, however, in their evidentiary requirements, procedural dynamics and available enforcement tools. The choice should therefore be made on the basis of the file before proceedings are commenced.

The Spanish route: proceso monitorio

The Spanish monitorio is a payment-order procedure for documented monetary claims. It may be a coherent option where the creditor has a reason to litigate in Spain, for example because of a Spanish jurisdiction clause or an existing procedural position before the Spanish courts.

Once the resulting decision or enforceable title qualifies for recognition and enforcement under Brussels I bis, it can be enforced in Italy without a declaration of enforceability under Article 39.

For the Italian enforcement phase, the creditor will generally need the relevant enforceable decision and the certificate issued by the Spanish court under Article 53 of the Regulation.

The European route

The European Order for Payment is designed for qualifying cross-border monetary claims and uses standardised EU forms. If the debtor does not oppose the order within the applicable period, the order becomes enforceable under the Regulation.

The European Order for Payment can then be enforced in other EU Member States without a declaration of enforceability.

The procedure is particularly attractive where the claim is expected to remain uncontested and a standardised European procedure is preferable.

The direct Italian route: decreto ingiuntivo

Where the debtor and the relevant assets are in Italy and the documentary evidence is strong, filing directly in Italy may frequently be the most efficient route.

The decreto ingiuntivo is an Italian payment order issued on the basis of written evidence, generally without a prior hearing.

In appropriate circumstances, the creditor may request provisional enforceability, allowing enforcement to begin without waiting for the ordinary opposition period to expire, subject to the statutory requirements.

This can be an important advantage where there is a genuine risk that the debtor may dispose of or conceal assets.

If the debtor opposes the order, the dispute proceeds before the competent Italian court in accordance with the applicable procedural rules.

How to choose

• 01Strong written evidence and assets in Italy — the direct Italian route is often preferable.
• 02A claim expected to remain uncontested and a preference for standardised European forms — the European Order for Payment.
• 03An existing Spanish procedural position or a Spanish jurisdiction clause — the Spanish route, followed by enforcement in Italy.
• 04Where speed against a financially unstable debtor matters — the possibility of provisional enforceability under Italian law may be decisive.

Practical checklist for Spanish creditors

• 01Contract or framework agreement, including any jurisdiction and applicable-law clause.
• 02Purchase orders (pedidos) and order confirmations.
• 03Unpaid invoices correctly identifying the Italian debtor.
• 04Delivery and transport documents (albaranes de entrega, CMR).
• 05Correspondence, in particular any acknowledgement of the debt.
• 06Updated information identifying the Italian debtor, including a visura camerale where the debtor is an Italian company.

How our Foreign Desk approaches Spanish files

We begin with a written assessment comparing the available routes in light of the evidence, the debtor's position and the location of the debtor's assets.

We verify the debtor's current status and investigate the assets available for enforcement through the relevant Italian public and official registers and databases.

We then prepare and file the selected application before the competent court — Italian or, where appropriate, in coordination with Spanish counsel, Spanish — and, once an enforceable title is available, coordinate the enforcement phase against assets located in Italy.