The so-called Cartabia Reform sought to innovate the civil process with the aim of simplifying, speeding up and rationalising it.

Months after the entry into force of the reform itself, however, it is possible to make an initial assessment of what is actually simplified and what is actually burdened with new burdens.

With regard to forced execution for those who are awarded a property in individual or bankruptcy execution, a new requirement has been introduced, based on the anti-money laundering rules set forth in Legislative Decree No. 231 of 21 November 2007, making the issuance of the transfer decree subject to the verification of compliance with these obligations.

Legislative Decree No. 149 of 10 October 2022 introduced an additional paragraph to article 585 of the Italian Code of Civil Procedure pursuant to which “within the term set for the payment of the price, the successful bidder, in a written statement made in awareness of the civil and criminal liability provided for false or mendacious statements, shall provide the enforcement judge or the delegated professional with the information prescribed by article 22 of Legislative Decree No. 231 of 21 November 2007. 231” and also amended article 586 of the Code of Civil Procedure by providing that the transfer decree can be pronounced on the twofold condition of the payment of the price and the verified “fulfilment of the obligation placed on the successful bidder by article 585, paragraph four”.

The legislation came into force on 1 March 2023 and is therefore applicable to transfer decrees pronounced at the outcome of real estate execution proceedings commenced with attachment completed as of the aforementioned date.

The legislator’s intention is to prevent forced sales from being instrumental in the reutilisation of illicit proceeds, thus filling the legislative gap that existed: before the reform, in fact, case law had been determined to exclude this requirement in executive proceedings, considering that the checks introduced by the anti-money laundering regulations under legislative decree no. 231/07 could not be carried out. Legislative Decree No. 231/07 could not be applied to the delegated professionals and the judge’s assistants since they could not be defined either as clients or executors of the same, nor finally as actual holders of the bank account opened as an account in the enforcement proceedings. 

From a strictly operational point of view, however, the new requirement will translate into the adjudicator’s duty to fill in an interview form for due diligence, administered by the delegated professional in order to provide all the information required by Article 22 of Legislative Decree No. 231/2007, self-declaring that he is the beneficial owner of the acquired account and the provenance of the sums functional thereto.

Once this declaration has been acquired, no other fulfilment is placed upon the auxiliary, who will simply have to collect this declaration and file it with the minute of the transfer decree, no subsequent activity being envisaged, nor any obligation to report any anomalous declarations.

The verification of the exact fulfilment of the disclosure obligations is therefore left to the enforcement judge as a condition for the pronouncement of the transfer decree, but it cannot be excluded that he may proceed with a report to the competent authority if he sees any grounds for doing so.

In the absence of such a declaration, therefore, the transfer decree cannot be issued.

However, it is believed that the transfer of the property can only be “delayed” in the absence of the filing of the form, and that such compliance cannot invalidate the purchase in the same way as the non-payment of the balance of the price, which, as is well known, produces the effect of the loss of the deposit and its forfeiture as a fine.

Article 587 c.1 of the Code of Civil Procedure has in fact not been affected by the reform and no consequences have in fact been envisaged for non-compliance with the anti-money laundering verification.

If the successful bidder refuses in full to fulfil this obligation, then it is obvious that the delegated professional will necessarily have to notify the enforcement judge who may order by non-complaint decree the revocation of the adjudication, the return of the deposit and the continuation of the procedure with a new sale under the same conditions as those for which the adjudication was then revoked.

In order not to incur obstructive delays in the transfer of the property, it would be necessary for the defaulting successful bidder to be ordered to pay the difference between the price he offered and the lower price for which the sale took place.

The new requirement could therefore produce more paralysing effects on the procedure than the requirements of simplification, speed and rationalisation of the civil process, which the legislator dictated in Law No. 206 of 26 November 2021.