Analysis of Judgment No. 25283 of 2023: Freezing Orders and Jurisdictional Competence
Judgment No. 25283 of April 6, 2023, issued by the Court of Cassation, provides important clarifications regarding the management of asset freezing orders issued by foreign authorities, particularly in light of Regulation (EU) 2018/1805. The central issue concerns the competence of the Italian judge to decide on requests for the substitution of real estate with sums of money, when such orders have already been recognized and implemented in national territory.
The Regulatory and Legal Context
Regulation (EU) 2018/1805, applicable in cases of asset freezing, establishes procedures for the recognition and enforcement of judicial decisions issued by other Member States. In particular, Article 28 of this Regulation attributes competence to the law of the State of enforcement, effectively excluding the possibility for the Italian judge to intervene on matters concerning the content of the foreign order.
Freezing order issued by a foreign authority under Regulation (EU) 2018/1805 - Recognition by the Italian judge and enforcement in Italy with seizure for equivalent value - Request by the suspect for substitution of the attached real estate with a sum of money - Competence of the Italian judge to decide under Art. 28 of the aforementioned Regulation - Exclusion - Reasons. In cases where a "freezing" order issued by a foreign judicial authority, pursuant to Regulation (EU) 2018/1805, has been enforced in national territory through seizure for equivalent value following recognition by the Italian judge, the competence to decide on the suspect's request for substitution of the encumbered real estate with a sum of money does not lie with the Italian judge. This is because the issue concerns not the management of assets subject to "freezing," which, pursuant to Art. 28 of the aforementioned Regulation, is governed by the law of the State of enforcement, but rather the content of the original order, which, as such, affects its effectiveness.
Implications of the Judgment
The Court clarified that once a freezing order has been recognized and implemented in Italy, decisions regarding the substitution of assets must follow the rules of the foreign authority that issued the order. This approach reflects a fundamental principle: the supremacy of foreign legal norms concerning the enforcement of freezing orders.
- Recognition of the primacy of the foreign order.
- Exclusion of the Italian judge's competence regarding modifications to frozen assets.
- Necessity to comply with the procedures established by the EU Regulation.
Conclusions
Judgment No. 25283/2023 represents a significant step forward in understanding the legal dynamics related to asset freezing in international contexts. It emphasizes how cooperation between EU Member States must be respected and how Italian authorities must adhere to what is established by European regulations. For legal practitioners, it is crucial to keep these guidelines in mind to ensure the correct management of freezing cases, avoiding conflicts of competence between different jurisdictions.
