JUDGMENT NO. 109

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 614-bis of the Code of Civil Procedure, in the text prior to the amendments introduced by Article 3, paragraph 44, of Legislative Decree No. 149 of 10 October 2022 (Implementation of Law No. 206 of 26 November 2021, delegating the Government to increase the efficiency of civil proceedings and to revise the regulation of alternative dispute resolution instruments and urgent measures for the rationalization of proceedings concerning the rights of persons and families as well as matters of compulsory enforcement), referred by the Ordinary Court of Brindisi, Civil Section-Insolvency Procedures Sector, sitting as a single judge, in the proceedings between R.A. S. and P. L., I. M., M. L., by order of 29 July 2025, registered under no. 211 of the 2025 register of orders and published in the Official Gazette of the Republic no. 45, first special series, of the year 2025.

Having seen the act of intervention by the President of the Council of Ministers;

having heard the reporting Judge Maria Rosaria San Giorgio in the chambers on 13 April 2026;

having deliberated in the chambers on 13 April 2026.

Findings of Fact

1.– By order of 29 July 2025, registered under no. 211 of the 2025 register of orders, the Ordinary Court of Brindisi, Civil Section-Insolvency Procedures Sector, sitting as a single judge, raised questions regarding the constitutional legitimacy of Article 614-bis of the Code of Civil Procedure, in the text prior to the amendments introduced by Article 3, paragraph 44, of Legislative Decree No. 149 of 10 October 2022 (Implementation of Law No. 206 of 26 November 2021, delegating the Government to increase the efficiency of civil proceedings and to revise the regulation of alternative dispute resolution instruments and urgent measures for the rationalization of proceedings concerning the rights of persons and families as well as matters of compulsory enforcement).

In the opinion of the referring court, the challenged provision, "in the part where—by legitimizing a restriction *sine die* and, therefore, perpetual—it does not provide for the power of the Judge for opposition to enforcement to exercise, upon motion of a party or *ex officio*, the power to determine a maximum quantitative (or even merely temporal) cap on the operation of the measures under Article 614-bis of the Code of Civil Procedure [...], in the event that such fixing has not already occurred, *ex ante*, by the judge of the precautionary measures or by the judge of the merits (and provided that there is no final judgment on the point)," would violate Articles 3, 24, 41 (invoked only in the reasoning of the order), 42, fourth paragraph (correctly: second paragraph), 111, 113, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the First Protocol to the European Convention on Human Rights and to Articles 6 and 13 of the ECHR, as well as Article 47 of the Charter of Fundamental Rights of the European Union (correctly: Article 117, first paragraph, of the Constitution, in relation to Article 47 of the Charter of Fundamental Rights of the European Union).

1.1.– Regarding the facts, the *a quo* judge states that they are required to decide on the opposition filed by R.A. S. against the notice of enforcement (*precetto*) with which she was ordered to pay the amount of 15,917.06 euros by virtue of an indirect coercive measure ordered by the same Court of Brindisi pursuant to Article 614-bis of the Code of Civil Procedure in the version—applicable *ratione temporis*—prior to the amendments introduced by the reform under Legislative Decree No. 149 of 2022.

The referring court states that the enforcing creditors had requested the opponent and A. T.—dentists to whom they had entrusted their minor daughter M. L. for dental treatment—restitution for the damages suffered by the latter as a consequence of the therapeutic treatment performed upon her. In order to promote the action for damages, they requested both professionals to return the X-rays taken of the minor before the start of the treatment.

The court further reports that, in response to this latter request, A. T. denied being in possession of the medical reports, as the dental treatment had been carried out, even if in his office, solely by R.A. S. in complete autonomy. The latter, however, declared that she had returned the X-rays to A. T.’s office on 24 October 2019.

Therefore—the referring order continues—by way of a petition pursuant to Articles "670 and/or 700 and Articles 669-bis and 614-bis" of the Code of Civil Procedure, the parents of M. L. requested that a judicial sequestration of the radiographic documentation be ordered, as well as the determination, pursuant to Article 614-bis of the Code of Civil Procedure, of a sum of money for every day of delay "in the execution of the measure to be adopted."

Having obtained the precautionary measure *inaudita altera parte*, the applicants attempted to enforce it, but without success, as both respondents denied being in possession of the reports.

Once the adversarial proceedings between the parties were established, the Court of Brindisi, by order of 5 September 2022, confirmed the judicial sequestration and, having noted the continued failure to deliver the X-rays, in granting the motion pursuant to Article 614-bis of the Code of Civil Procedure, ordered the respondents to pay, jointly and severally, the sum of 50.00 euros for every day of delay in the execution of the precautionary measure.

The *a quo* judge further states that the respondents had filed a complaint against said provision pursuant to Article 669-terdecies of the Code of Civil Procedure. While the precautionary appeal was pending, the applicants initiated the merits proceedings for damages, "to the quantification of which they had to proceed without being able to have the aforementioned X-rays at their disposal."

Subsequently, with a notice of enforcement based on the order with which the indirect coercive measure had been ordered together with the judicial sequestration, the parents of M. L. ordered A. T. and R.A. S. to pay the amount accrued from the date of the *astreinte* order to the date of the notice of enforcement itself, without expressing "the desire to limit, in the future, their claim to what was requested with the enforcement activity."

Only R.A. S. filed an opposition against the notice of enforcement, contesting the enforceability, the "legality," and the proportionality of the measure.

The *a quo* judge reports having noted that, "at a *prima facie* evaluation," the reasons put forward in support of the opposition could not be accepted, since, as clarified by the jurisprudence of legitimacy, in proceedings pursuant to Article 615, first paragraph, of the Code of Civil Procedure, the reduction of the indirect coercive measure, resolving itself into a modification of the injunctive scope of the judicial enforcement title, is not permitted (reference is made to the Court of Cassation, Third Civil Section, Judgment of 26 July 2023, no. 22714).

The referring judge adds that they therefore submitted to the adversarial process "the different, albeit related, profile" regarding the possibility for the judge of the opposition to enforcement to "determine *ex post*," where the judge who ordered the coercive measure has not provided for it, a maximum quantitative (or even merely temporal) cap on the operation of the measures pursuant to Article 614-bis of the Code of Civil Procedure, and that they have reached the conclusion that the failure to provide for such a power is constitutionally illegitimate.

1.2.– Given this, regarding relevance, the *a quo* judge believes it necessary to "probe the possibility of an *ex officio* intervention" regarding an *astreinte* that risks assuming a scope disproportionate to its function of coercing compliance.

In this regard, the referring judge observes that, in the present case, in the face of "non-pecuniary biological damage, still being quantified before the merits judge and, apparently, of a non-serious nature," the creditors have ordered the payment of an amount equal to 15,917.06 euros, moreover at the precautionary stage, without "any *res judicata*, whether explicit or implicit, having descended" on the provision, since the merits proceedings are still ongoing.

The judge then reiterates that the question regarding the possibility for the enforcement judge to introduce *ex post* a quantitative or temporal limit to the coercive measure, while being akin to that concerning the power of the same judge to reduce its amount—the existence of which has been excluded by the jurisprudence of legitimacy—, is different.

The "crystallization *pro futuro* of the sanctioning claim, *ex officio* or upon party motion"—points out the *a quo* judge—would, in fact, consist of the mere clarification of a provision that "is not overturned in its content," but only "integrated and specified 'for its harmonious and virtuous functioning'."

1.3.– The referring judge then dwells, with ample exposition, on the reconstruction of the regulatory framework in which the challenged provision is inscribed, to then illustrate with extensive arguments the reasons why they deem the interpretation compliant with the Constitution to be impracticable.

They observe, first, that Article 614-bis of the Code of Civil Procedure does not contain, even in the current wording, an express provision for the possibility for the enforcement judge to determine *ex post*—where the judge of the merits has not provided for it—a maximum limit, whether quantitative or temporal, of the coercive measure.

Recent reforms have, in fact, confirmed the "clear gap between the cognitive phase and the enforcement phase," recognizing in the enforcement judge only the power to order *ex novo* the measure that was not requested from the cognitive judge.

Nor, in the opinion of the referring judge, could the unambiguous literal tenor of the provision under scrutiny be overcome on the basis of the reconstructive indications provided by administrative jurisprudence and, in particular, by the Council of State, plenary session, Judgment of 9 May 2019, no. 7, according to which, in the context of so-called "compliance clarifications," the *astreinte* ordered with a previous compliance judgment, although it cannot be subject to revision *ex tunc*, can be modified where it does not consist of a maximum cap and legal or factual supervening events are demonstrated that render its application manifestly inequitable.

The *a quo* judge excludes that such an interpretive solution can be accepted in civil proceedings, as it is justified by reason of the penetrating powers of cognition recognized to the administrative judge in the context of compliance, whose review concerns "a legal reality, not static, but dynamic" such as administrative power, which is "exercisable in the spaces not covered by the *res judicata*."

To the administrative judge—adds the referring order—it is, in fact, recognized the power not only to implement, but also to integrate and specify the jurisdictional provision to be brought to execution precisely in order to allow adaptation to the supervening events of the rule established by it.

The referring judge then excludes that the failure to provide, in Article 614-bis of the Code of Civil Procedure, for the possibility for the enforcement judge to establish a quantitative or temporal limit to the *astreinte* can be remedied by leveraging the "systematic-evolutionary argument" according to which the enforcement process would have lost its original configuration as an instrument of mere implementation of the judicial command to acquire ever greater cognitive spaces, as would be confirmed by the possibility for the enforcement judge to "integrate the judicial notice of enforcement with extratextual elements" (reference is made to the Court of Cassation, United Civil Sections, Judgment of 2 July 2012, no. 11067) and to overcome the principles of autonomy, abstractness, and self-sufficiency of the enforcement title "in order to protect the [the] consumer's contractual freedom" in line with the indications coming from European Union law.

In the referring judge's opinion, the aforementioned considerations would not allow overcoming "the tendential absoluteness" of the separation between the moment of assessment and that of enforcement, which responds to a principle of procedural public policy.

The constitutionally oriented interpretation of the norm under scrutiny could not be practiced even by applying the discipline of the revocation or modification of the precautionary provision dictated by Article 669-decies of the Code of Civil Procedure, given that in the case under examination the supervening "exorbitance" of the *astreinte* does not constitute a modification of the initial circumstances of which the enforcement judge can take account, since it does not inhere in the historical fact on the basis of which the measure was adopted, but "to the consequences that the legal system, through the judicial provision, attaches to the fact and, in particular, to the quantitative modulation of the measure imposed, as a consequence of the factual assessment performed."

The referring judge also notes that the suspicions of constitutional illegitimacy could not find a solution via interpretation even by extending to the case under examination the hermeneutical indications provided by jurisprudence, including constitutional jurisprudence, on the *ex officio* reduction of the penalty clause and the confirmation deposit.

To the illustration of the doctrine favorable to this latter reconstructive hypothesis, the referring order precedes a reconnaissance of the main theses on the legal nature of the penalty clause and an ample exposition of the jurisprudence of legitimacy on the judge's power to reduce its amount even when a party motion is lacking.

It is, in particular, examined the Court of Cassation, United Civil Sections, Judgment of 13 September 2005, no. 18128, according to which the power of reduction to equity, attributed to the judge by Article 1384 of the Civil Code to protect the general interest of the legal system, can be exercised *ex officio* to lead contractual autonomy back within the limits in which it appears worthy of protection, and this both with reference to the manifestly excessive penalty, and with regard to the hypothesis in which the reduction occurs because the main obligation has been partially performed.

It is emphasized how the recalled nomophylactic pronouncement evokes both the duty of solidarity referred to in Article 2 of the Constitution, and the general principle of non-enforceability as an external limit to creditor claims (reference is made to this Court's Judgment no. 19 of 1994), in turn based on the canons of good faith and fairness pursuant to Articles 1175, 1337, 1359, 1366, and 1375 of the Civil Code.

The referring judge also recalls how the enunciations on the reduction of the penalty clause have been extended also to the confirmation deposit disciplined in Article 1385 of the Civil Code, this Court having affirmed that, in case of evident disproportion of this latter agreement, the judge is authorized to detect its nullity *ex officio* pursuant to Article 1418 of the Civil Code, this radical sanction deriving from the contrast with Article 2 of the Constitution, which "enters directly into the contract, in combined context with the canon of good faith, to which it attributes normative force" (Order no. 248 of 2013).

Given this, the *a quo* judge excludes that the recalled enunciations can find application in the case under scrutiny, since they are attributable to a principle, such as that of good faith, which cannot operate outside the contractual matter.

For the same reasons, the referring judge denies that the raised doubts of constitutional illegitimacy can be overcome by basing the enforcement judge's power to limit the duration or amount of the *astreinte* *ex post* on equity pursuant to Article 1374 of the Civil Code.

Nor could the abuse of law be usefully invoked in support of an *exceptio doli*, since what is taken into consideration in the case under scrutiny is not the abusive exercise of a creditor claim, but the implementation of a jurisdictional provision.

Ultimately, in the opinion of the referring Court, the "equity principle" cannot be extended "beyond the hypotheses in which it is expressly recalled."

Hence the need to promote the constitutional legitimacy incident.

1.4.– Regarding the non-manifest unfoundedness, the referring judge observes, first, that the failure to provide for the possibility for the enforcement judge to introduce, even *ex officio*, a maximum cap to the indirect coercive measure ordered in the cognitive or precautionary process would contradict, first, the principles of reasonableness and proportionality referred to in Article 3 of the Constitution, since the constraint that is taken into consideration in the present case, having "characteristics of perpetuity," would result in being unreasonable and disproportionate.

The challenged provision would also violate contractual freedom and the "dominical right," since an excessive coercive measure also affects the property sphere of the obligor, who, as a result of it, is exposed to the risk of suffering movable or immovable enforcement.

The inadmissibility of perpetual constraints—adds the referring order—responds, in fact, to the need to avoid excessive and temporally indeterminate restrictions on the faculties of enjoyment and disposition of goods, which, in contrast to Article 42 of the Constitution, empty the right of its effective content, resulting in an "expropriation without compensation."

The principle of proportionality of sanctions would also be violated—within the scope of which the measures pursuant to Article 614-bis of the Code of Civil Procedure would also fall—as declined by constitutional jurisprudence with reference to the determination of penalties (reference is made, among others, to the judgments of this Court no. 86 of 2024, no. 178, no. 177, and no. 88 of 2023).

The order then proceeds to compare the discipline of indirect coercive measures and the regime of the homologous institution of *astreintes* of French law, in order to highlight how, unlike the latter, the Italian legal system does not contemplate, in addition to the procedure for adopting the coercive measure, a specific judgment dedicated to its liquidation.

From this it would derive that the determination of the *quantum* would result in being "unreasonably, entrusted to the creditor himself," who would be burdened with the indication, in the notice of enforcement, of the amount of the accrued credit.

Since, therefore, the fixing of a quantitative or temporal limit is not allowed for the enforcement opposition judge, the coercive measure that results devoid of it could operate *sine die*, thus giving rise to "an obligation of a sanctioning nature disproportionate to the original unfulfilled obligation."

Such a system—observes the *a quo* judge—would contradict the principle enunciated by the jurisprudence of legitimacy according to which judgment pronouncements having as their object punitive damages must be issued "on the basis of adequate normative bases, which respond to the principles of typicality and predictability" (reference is made to the Court of Cassation, United Civil Sections, Judgment of 5 July 2017, no. 16601).

Moreover, the referring judge argues, recalling the defenses of the opposing party in the *a quo* judgment, the proportionality relevant for the purposes of the constitutional legitimacy scrutiny evokes "a correlation of the means with respect to the end, in the sense that, between the regulatory normative instrument, and the realization of the end that one intends to pursue with it, the 'balancing' work must lead to a 'balanced' composition of the sacrifices" (reference is made, among others, to this Court's Judgment no. 297 of 1993).

Ultimately, the challenged provision would conflict with the principles of reasonableness and proportionality pursuant to Article 3 of the Constitution, since, by not providing for the possibility for the enforcement opposition judge to establish a maximum limit to the duration of the coercive measure, it would penalize the debtor excessively, who could not request the predetermination of the duration of the obligation from the cognitive judge, given the objective difficulty for the latter to evaluate *ex ante* "a possible profile of exorbitance that can manifest and be appreciated only at the enforcement stage."

The challenged provision would also contradict Articles 41 and 42, second paragraph, of the Constitution, since the perpetual constraint deriving from indirect coercive measures would restrict the freedom of economic initiative "of which contractual freedom constitutes a corollary" and would limit property rights excessively, emptying them of their content.

Furthermore, Article 117, first paragraph, of the Constitution would be violated, in relation to Article 1 of the First Protocol to the ECHR, given that pecuniary sanctions can constitute a violation of property rights also under the recalled conventional provision.

The referring Court also perceives a *vulnus* to the principle of effectiveness of judicial protection enshrined in Articles 24 and 111 of the Constitution, as well as in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union, since a discipline, such as the one under scrutiny, that does not allow the enforcement judge to place a maximum limit on the penalty imposed at the cognitive stage would not provide a suitable procedural guarantee.

Lastly, the challenged provision would determine an unjustified disparity of treatment, in contrast with Article 3 of the Constitution, between the case under scrutiny and those of the penalty clause and the *caparra penitenziale*, with respect to which constitutional and legitimacy jurisprudence allow judicial intervention, including *ex officio*, as a rebalancing function.

2.– Having intervened in the proceedings through the State Attorney General, the President of the Council of Ministers requested that the questions of constitutional legitimacy be declared inadmissible or, in any case, unfounded.

2.1.– The intervenor highlighted, first, that the insufficient and incomplete description of the case-fact subject of the *a quo* judgment would not allow "affirming with certainty that the incidental question of constitutionality is effectively relevant."

From the referring order it would emerge, in fact, that the coercive measure on which the notice of enforcement subject to opposition is based accesses a judicial sequestration provision pursuant to Article 670, number 1), of the Code of Civil Procedure obtained by the opposing parties to protect the right to the "restitution/return" of X-rays performed on their daughter at the dental office of the respondents.

From the act of promotion it would also be derived that the same opposing parties, after the issuance of the precautionary provision, introduced a merits judgment in which they requested only the condemnation of the professionals to the compensation of the damages suffered by their minor daughter, and not the restitution of the reports.

The intervenor therefore notes that, based on what was reported by the referring judge, the judicial sequestration and the measure pursuant to Article 614-bis of the Code of Civil Procedure that accesses it would seem to have lost effectiveness pursuant to Article 669-novies, first paragraph, of the Code of Civil Procedure, by reason of the failure to introduce the restitution judgment within the peremptory term referred to in Article 669-octies, first paragraph, of the Code of Civil Procedure.

Always preliminarily, the state defense complains that, since the *a quo* judge did not specifically indicate the reasons for the opposition to enforcement on which he is called to decide, it is not possible to verify the "effective relevance" of the raised questions.

In support of the exception, the intervenor argues that, if the opponent had deduced the supervening ineffectiveness of the enforcement title pursuant to Articles 669-octies, first paragraph, and 669-novies, first paragraph, of the Code of Civil Procedure, such grievance would be in itself suitable to found a judgment of *de plano* acceptance of the opposition, without the need, for the referring judge, to examine the censorship with which "it would seem that the illegitimacy of the *astreinte* had been lamented" for failure to fix a quantitative or temporal limit.

The *a quo* judge would have, moreover, incurred in an *aberratio ictus*, since, while hoping for an additive pronouncement aimed at expanding the scope of the attributions of the judge of the opposition to enforcement by recognizing the power to determine "a maximum quantitative (or even merely temporal) cap" to the operation of indirect coercive measures, he did not challenge Article 615 of the Code of Civil Procedure, but Article 614-bis of the Code of Civil Procedure, which, at least in the text prior to Legislative Decree no. 149 of 2022, was limited to providing the conditions and prerequisites for the threat, by the judge of the cognition, of the *astreinte*, without disciplining the powers of the judge of the enforcement opposition.

The questions of constitutional legitimacy would be inadmissible also because the referring party would not have motivated the non-manifest unfoundedness with reference to the norm to which the censures should have been addressed, i.e., Article 615 of the Code of Civil Procedure.

Again, in support of the inadmissibility of the questions, the State Attorney General deduces that the referring judge would not have considered the tools of protection recognized by the legal system to the recipient of the *astreinte* ordered at the precautionary stage and, in particular, the possibility to propose the complaint pursuant to Article 669-terdecies of the Code of Civil Procedure—a remedy in the case experienced, but with negative outcome, by the opponent—and to ask—possibly in the merits judgment which, from what results from the referring order, would still be ongoing—the revocation or modification of the coercive measure pursuant to Article 669-decies of the Code of Civil Procedure.

In support of this assumption, the state defense argues that, if the merits request were granted, the precautionary measure granted *ante causam* and the *astreinte* associated with it would be absorbed by the pronouncement that defines the judgment.

Conversely, in the event of rejection of the merits request, the coercive measure would "fall," together with the precautionary provision, "with effect *ex tunc*," and the recipient of it could repeat pursuant to Article 2033 of the Civil Code what may have already been paid to give execution to it.

The failure to consider the aforementioned remedies would translate into a further reason for inadmissibility for deficient motivation on non-manifest unfoundedness.

Gradually, the intervenor excepts the manifest inadmissibility of the questions on the assumption that with the referring order an additive pronouncement is requested "aimed at replacing the will of the legislator with a discipline of a different sign not constitutionally obligated."

The raised questions would, finally, be inadmissible for lack of relevance in the part in which they hope for the aforementioned additive intervention not only with reference to the hypothesis in which the indirect coercive measure was ordered by the judge of the precaution—as happened in the *a quo* judgment—, but also in the case in which the same measure is adopted by the judge of the merits.

2.2.– The President of the Council of Ministers believes that the questions are, in any case, unfounded, since the party receiving an *astreinte* adopted at the precautionary stage would have adequate forms of protection, such as the complaint pursuant to Article 669-terdecies of the Code of Civil Procedure, the request for revocation or the modification pursuant to Article 669-decies of the Code of Civil Procedure and the challenge of the pronouncement that defines the merits judgment.

The intervenor also observes that the additive solution proposed by the referring party would allow the judge of the opposition to enforcement to exercise a review on the correctness of an enforcement title of judicial formation "integrating/correcting it *ex post* and even *ex officio*" through the determination of a maximum limit, quantitative or temporal, not established by the judge of the cognition or of the precaution; what would contrast with the jurisprudential principle, constituting living law, of the intangibility, in the seat of enforcement opposition, of the enforcement title for facts prior or coeval to its formation (reference is made, among others, to the Court of Cassation, Third Civil Section, Judgment of 4 February 2025, no. 2785 and Cass. no. 22714 of 2023).

The intervenor also observes how this principle has not been affected even by the reform under Legislative Decree no. 149 of 2022, which introduced only the power of the enforcement judge to order the *astreinte* where the judge of the cognition or of the precaution has not provided for it.

He adds that the attribution to the judge of the opposition to enforcement of a power of correction of the judicial enforcement title "by reason of alleged errors committed by the judge of the cognition (or of the precaution)" would determine significant systematic repercussions.

With reference to the censorship of violation of the principle of equality, the state defense assumes that the cases indicated by the *a quo* judge as a term of comparison are not pertinent, as they belong to the area of contractual autonomy, where in the present case the reviewability of a judicial title is taken into consideration.

Then, the lesion of Article 42, second paragraph, of the Constitution and Article 117, first paragraph, of the Constitution would not be recognizable, in relation to Article 1 of the First Protocol to the ECHR, since, differently from what was believed by the referring party, one would not be in the presence of a perpetual constraint, as such affecting the property right of the recipient of the coercive measure, since the debtor could "in principle, free himself by performing the unfungible service of giving or doing."

Lastly, there would not be the violation of Articles 24, 111 and 117 of the Constitution, the latter in relation to Articles 6 and 13 of the ECHR, as well as Article 47 of the Charter of Fundamental Rights of the European Union, since the effectiveness of the judicial protection of the obligor would be guaranteed by the impugnatory remedies against the indirect coercive measure itself.

Considered in Law

3.– The Court of Brindisi, Civil Section-Insolvency Procedures Sector, sitting as a single judge, doubts the constitutional legitimacy of Article 614-bis of the Code of Civil Procedure, in the text, applicable *ratione temporis*, prior to the amendments introduced by Article 3, paragraph 44, of Legislative Decree no. 149 of 2022.

In the first paragraph, the challenged provision provided that "[w]ith the condemnation provision to the fulfillment of obligations other than the payment of sums of money the judge, unless this is manifestly inequitable, fixes, upon party motion, the sum of money owed by the obligor for each subsequent violation or non-observance or for each delay in the execution of the provision. The condemnation provision constitutes an enforcement title for the payment of the sums owed for each violation or non-observance. The provisions of this paragraph do not apply to disputes of public or private subordinate labor and to relationships of coordinated and continuous collaboration referred to in Article 409."

Pursuant to the second paragraph, "[t]he judge determines the amount of the sum referred to in the first paragraph taking into account the value of the dispute, the nature of the service, the quantified or foreseeable damage and any other useful circumstance."

3.1.– In the opinion of the *a quo* judge, the provision in question, "in the part where—legitimizing a constraint *sine die* and, therefore, perpetual—it does not provide, by the Judge of the opposition to enforcement, the exercise, upon motion of a party or *ex officio*, of the power to determine a maximum quantitative (or even merely temporal) cap to the operation of the measures pursuant to Article 614-bis of the Code of Civil Procedure [...], in the event that such fixing has not already occurred, *ex ante*, by the judge of the precaution, or by [the] judge of the merits (and provided that there is no final judgment on the point)," would conflict, first, with Article 3 of the Constitution, with reference both to the principle of reasonableness and to that of equality.

On one side, in fact, it would impose on the debtor a constraint " *sine die* and, therefore, perpetual" in contrast with the principle of proportionality of sanctions; on the other, it would determine a disparity of treatment between indirect coercive measures and other institutions, such as the penalty clause and the confirmation deposit, in relation to which, in the presence of a manifestly disproportionate patrimonial sacrifice, the intervention of the judge is allowed, even *ex officio*, as a rebalancing function.

3.2.– Articles 41 (evoked, as already reported, only in the reasoning of the order and not reported in the device of the same), 42, second paragraph, and 117, first paragraph, of the Constitution would also be violated, the latter in relation to Article 1 of the First Protocol to the ECHR, since a disproportionate and duration-less indirect coercive measure would damage the contractual freedom of the debtor and, by exposing him to the risk of compulsory enforcement, his patrimonial sphere.

3.3.– Lastly, the challenged norm would harm Articles 24, 111, 113, 117, first paragraph, of the Constitution, the latter in relation to Articles 6 and 13 of the ECHR, as well as Article 47 of the Charter of Fundamental Rights of the European Union, since the failure to provide for the possibility for the enforcement judge to remedy *ex officio* the disproportionate sacrifice to which the recipient of the coercive measure is exposed would conflict with the principle of effectiveness of judicial protection.

4.– Preliminarily, the multiple profiles of inadmissibility noted by the State Attorney General must be examined.

4.1.– First, the exception of insufficient description of the case-fact subject of the *a quo* judgment is not worthy of acceptance.

The intervenor observes that the indirect coercive measure placed at the foundation of the opposed notice of enforcement accesses a judicial sequestration provision pursuant to Article 670, number 1), of the Code of Civil Procedure obtained by the defendants in the main judgment to protect the right to the "restitution/return" of radiographic reports necessary to assert in court the responsibility of the plaintiff party.

From the exposition of the referring party it results, however, that the same defendants, following the adoption of the precautionary provision, introduced a merits judgment in which they requested only the compensation for damages and not the restitution of the documents in dispute.

According to the state defense, the judicial sequestration and the measure pursuant to Article 614-bis of the Code of Civil Procedure that accesses it would result, therefore, in having lost effectiveness by reason of the failure to introduce the restitution judgment within the peremptory term fixed by Article 669-octies, first paragraph, of the Code of Civil Procedure.

4.1.1.– It is, however, to be believed that, based on what emerges from the referring order, the precautionary measure in question, beyond the *nomen iuris*, does not have the content of the judicial sequestration of goods pursuant to Article 670, number 1), of the Code of Civil Procedure, but of the sequestration of evidence referred to in number 2) of that provision, whose function is not that, proper to the first, of ensuring the custody of goods whose ownership or possession is disputed, but of safeguarding the right to acquire a document or other *res* from which the interested party can draw elements of evidence in his favor through the judicial order of exhibition addressed to the counterparty or to the third party who has the availability of the document or thing (Court of Cassation, First Civil Section, Judgment of 29 October 1970, no. 2213).

Where, as in the present case, the custody pursuant to Article 670, number 2), of the Code of Civil Procedure is granted *ante causam*, it is not, therefore, necessary that the adoption of the measure be followed, within the term referred to in Article 669-octies of the Code of Civil Procedure, by the institution of a judgment on ownership or possession in which a request for condemnation to the delivery or restitution of the sequestered good must be advanced, being sufficient to avert the ineffectiveness referred to in Article 669-novies, first paragraph, of the Code of Civil Procedure the introduction of any merits process in which the sequestered evidence can be used (Court of Cassation, First Civil Section, Judgment of 22 December 1993, no. 12705).

4.2.– Another exception of inadmissibility concerns the failure of the *a quo* judge to specifically illustrate the reasons for the opposition to enforcement, from which would derive the impossibility of verifying the "effective relevance" of the raised questions.

In this regard, the State Attorney General opines that, if the opposing party had deduced the supervening ineffectiveness of the enforcement title pursuant to Articles 669-octies, first paragraph, and 669-novies, first paragraph, of the Code of Civil Procedure, such grievance would in itself alone be suitable to found a pronouncement of *de plano* acceptance of the opposition, without the need, for the referring judge, to examine the censorship with which "it would seem that the illegitimacy of the *astreinte* had been lamented" for failure to fix a quantitative or temporal limit.

4.2.1.– Nor is this exception well-founded, as, as this Court has repeatedly stated, it is up to the referring judge to identify the logical order of the questions submitted for his examination (among others, judgments no. 125 of 2018 and no. 132 of 2015).

4.3.– Then, the *aberratio ictus* excepted by the intervenor on the assumption that the *a quo* judge, while hoping for an additive pronouncement aimed at expanding the scope of the attributions of the judge of the opposition to enforcement by recognizing the power to determine "a maximum quantitative (or even merely temporal) cap" to the operation of indirect coercive measures, would not have challenged Article 615 of the Code of Civil Procedure, containing the discipline of opposition, preventive and subsequent, to execution, is not recognizable.

4.3.1.– The identification of Article 614-bis of the Code of Civil Procedure as the norm to which to address the censures of constitutional illegitimacy results, on the contrary, in being coherent, both with the object and the foundation of the raised questions, and with the additive *petitum* requested, since the provision subjected to scrutiny outlines exhaustively the general discipline of indirect coercive measures.

The will of the legislator to concentrate in the challenged provision not only the norms that serve to conform the structure and content of indirect coercive measures, but also those that define their procedural regime finds, moreover, confirmation in the recent reform interventions implemented with Legislative Decree no. 149 of 2022 and with Legislative Decree no. 164 of 31 October 2024 (Integrative and corrective provisions to Legislative Decree no. 149 of 10 October 2022, carrying out the implementation of Law no. 206 of 26 November 2021, delegating the Government to increase the efficiency of civil proceedings and to revise the regulation of alternative dispute resolution instruments and urgent measures for the rationalization of proceedings concerning the rights of persons and families as well as matters of compulsory enforcement), which inserted into the same text of Article 614-bis of the Code of Civil Procedure the new norms that extended to the enforcement judge the competence to order indirect coercive measures.

4.4.– In light of the considerations that precede, the exception according to which no motivation would have been carried out in support of the non-manifest unfoundedness with reference to Article 615 of the Code of Civil Procedure must likewise be disregarded.

4.5.– Devoid of foundation is, then, the exception with which the *a quo* judge is accused of failure to consider the tools of protection of which the recipient of the provision pursuant to Article 614-bis of the Code of Civil Procedure adopted at the precautionary stage disposes and, in particular, of the possibility to propose the complaint referred to in Article 669-terdecies of the Code of Civil Procedure and to ask the merits judge for the revocation or modification of the measure pursuant to Article 669-decies of the Code of Civil Procedure.

4.5.1.– The referring party has, in fact, evaluated the possibility, for the interested party, to request the fixing of a quantitative or temporal limit of the penalty by making use of the means offered by the discipline of the precautionary procedure, but, on one side, has noted that the complaint pursuant to Article 669-terdecies of the Code of Civil Procedure results, in the case, to have been experienced without outcome and, on the other, with non-implausible arguments, has excluded that the request pursuant to Article 669-decies of the Code of Civil Procedure constitutes a procedural tool suitable for achieving the hoped-for *ex post* delimitation of the ordered penalty.

4.6.– Differently from what was believed by the state defense, then, the failure of the referring party to consider the circumstance that the compulsory measure placed as a safeguard of a precautionary measure would not require a posthumous temporal delimitation, as it would in any case be destined to lose effectiveness with the adoption of the provision that defines the merits judgment, does not assume relevance for the purposes of the admissibility examination of the questions.

Such an effectual mechanism could, indeed, not satisfy the need signaled by the referring party where the conclusion of the merits process occurred at a distance of time from the adoption of the same coercive measure.

4.7.– The further exception with which the intervenor observes that the referring party would have requested an additive pronouncement "aimed at replacing the will of the legislator with a discipline of a different sign not constitutionally obligated" pertains, instead, to the merits—and not to the admissibility of the questions.

It is undoubted that the legislator enjoys wide discretion in the shaping of procedural institutions, but this does not take away that his choices can be subjected to the judgment of constitutional legitimacy where it is assumed that they have exceeded the limit of manifest unreasonableness and disproportion with respect to the pursued aims (among many, judgments no. 205, no. 128, and no. 39 of 2025).

4.8.– The exception of irrelevance, with which it is lamented that the questions tend to the aforementioned additive intervention not only with reference to the specific hypothesis, in which the indirect coercive measure was ordered by the judge of the precaution, but also in the case in which the same measure was granted within a cognitive judgment, must also be disregarded.

In the perspective of the referring party, the constitutional *vulnus* derives, in fact, from the failure to attribute to the judge of the enforcement opposition the power to fix a term of duration or a maximum quantitative limit to the coercive measure placed in execution, without the procedural context—precautionary or cognitive—in which it was ordered assuming relevance.

4.9.– A profile of inadmissibility, to be noted *ex officio*, is, instead, recognizable in the censorship formulated in reference to Article 47 of the Charter of Fundamental Rights of the European Union.

It results, in fact, supported by a motivation on the non-manifest unfoundedness completely insufficient, the referring party not having illustrated the reasons that would make the challenged provisions fall within the scope of application of European Union law, a condition, this, to which is subordinated, pursuant to Article 51 of the Charter of Fundamental Rights of the European Union, "the same applicability of the norms of the Charter, including their suitability to constitute interposed parameters in the constitutional legitimacy judgment" (among others, judgments no. 137 of 2025 and no. 85 of 2024).

4.10.– Lastly, it is necessary to note that in some passages of the motivation and in the device of the referring order, in the enumeration of the constitutional and supranational parameters that enunciate the principle of effectiveness of judicial protection, are reported—together with Articles 24 and 117, first paragraph, of the Constitution, the latter in relation to Articles 6 and 13 of the ECHR—Articles 47 and 113 of the Constitution, of which the irrelevance with respect to the *thema decidendum* is clear.

It is not, however, a conceptual error, but a mere *lapsus calami* which does not prejudice the correct identification of the constitutional norms actually evoked—which must, evidently, be identified, respectively, in Articles 111 of the Constitution and 47 of the Charter of Fundamental Rights of the European Union, as confirmed by the presence, in the same motivational context, of explicit references to these provisions—and is therefore irrelevant for the purposes of admissibility (among others, judgments no. 224 of 2023 and no. 151 of 2016).

5.– To the examination of the merits of the questions it is useful to precede a synthetic reconstruction of the regulatory and jurisprudential framework in which the challenged provision is inscribed.

5.1.– Article 614-bis of the Code of Civil Procedure carries the general discipline of the indirect coercive measure of a pecuniary nature—usually called, borrowing the *nomen iuris* of the analogous figure of French law from which it draws inspiration, *astreinte*—, intended to solicit the voluntary fulfillment of an obligation of content other than the payment of sums of money by the subject condemned to it, proposing to him a patrimonial decrease for the hypothesis of failure or delayed fulfillment (Cass., no. 22714 of 2023; in a conforming sense, Court of Cassation, First Civil Section, Order no. 10942 of 23 April 2024).

With the introduction, at the work of Article 49, paragraph 1, of Law no. 69 of 18 June 2009 (Provisions for economic development, simplification, competitiveness as well as in matters of civil process), of the discipline under examination, it was intended to remedy the gap deriving from the unsuitability of condemnation provisions to the fulfillment of unfungible obligations to found direct compulsory enforcement (*nemo ad factum praecise cogi potest*), through the preparation of a technique aimed at soliciting the fulfillment of the debtor.

5.2.– As clarified by the jurisprudence of legitimacy, the function of the *astreinte* is, in truth, first of all compulsory and only eventually sanctioning (Court of Cassation, First Civil Section, Judgment no. 7613 of 15 April 2015).

The indirect coercive measure aims to exercise psychological pressure toward the condemned subject through the threat of an economic sacrifice destined to increase progressively and automatically for each day or temporal fraction of delay in the conformation of the obligor to the main command and to replicate itself in case of repetition of the transgression to the obligation of non-performance.

The same measure, where the recipient renders himself, nonetheless, unfulfilled, resolves itself into a pecuniary penalty, so that "*ex post* it functions also as a sanction" which "rises by reason of the delay" (again, Cass., no. 7613 of 2015).

5.3.– The current text of the challenged provision is the result of four legislative interventions.

5.3.1.– The first, to which we owe the introduction of the institution, dates back, as remembered, to Law no. 69 of 2009, whose Article 49, paragraph 1, had inserted Article 614-bis into the discipline of the execution process referred to in Title IV of Book Three of the Code of Civil Procedure, with a heading (Implementation of obligations to do unfungible and not to do) from which was evinced the *intentio legis* of limiting the operation of indirect coercive measures to only cases of failure or late conformation to condemnation provisions to the fulfillment of obligations having as object unfungible services.

5.3.2.– The scope of the provision and, even before, its systematic collocation have been, then, modified by Decree-Law no. 83 of 27 June 2015 (Urgent measures in bankruptcy, civil and civil procedural matters and of organization and functioning of judicial administration), converted, with modifications, into Law no. 132 of 6 August 2015, which, at Article 13, paragraph 1, letter cc-ter), added to Book Three of the Code of Civil Procedure Title IV-bis, carrying the heading "Of indirect coercive measures," and inserted there Article 614-bis assigning to it the new heading "Indirect coercive measures" in order to extend its application to every condemnation provision to the fulfillment of obligations other than the payment of sums of money.

5.3.3.– Subsequently, Article 614-bis of the Code of Civil Procedure was reformed by Article 3, paragraph 44, of Legislative Decree no. 149 of 2022, assuming, at the first paragraph, the following formulation: "[w]ith the condemnation provision to the fulfillment of obligations other than the payment of sums of money the judge, unless this is manifestly inequitable, fixes, upon party motion, the sum of money owed by the obligor for each subsequent violation or non-observance or for each delay in the execution of the provision, determining its commencement. The judge can fix a term of duration of the measure, taking into account the purpose of the same and any useful circumstance."

The second paragraph was thus rewritten: "[i]f it was not requested in the cognitive process, or the enforcement title is different from a condemnation provision, the sum of money owed by the obligor for each violation or non-observance or delay in the execution of the provision is determined by the enforcement judge, upon appeal of the right-holder, after the notification of the notice of enforcement. The provisions referred to in Article 612 are applied insofar as they are compatible."

Pursuant to the updated third paragraph "[t]he judge determines the amount of the sum taking into account the value of the dispute, the nature of the due service, the advantage for the obligor deriving from the non-fulfillment, the quantified or foreseeable damage and any other useful circumstance."

Finally, in the fourth and fifth paragraphs were reproduced, respectively, the rules—already present in the original version—according to which, on one side, the provision constitutes an enforcement title for the payment of the sums owed for each violation, non-observance or delay and, on the other side, the discipline dictated by Article 614-bis of the Code of Civil Procedure does not apply to disputes of public or private subordinate labor and to relationships of coordinated and continuous collaboration referred to in Article 409 of the Code of Civil Procedure.

5.3.4.– Among the innovations introduced by the 2022 reform, particular relief, for the purposes of today's constitutional legitimacy scrutiny, assumes the provision according to which the judge who orders the *astreinte* delimits its effectiveness temporally fixing, first, a dilatory term starting from which the effects of the measure begin to be produced, in order to allow the burdened party to give voluntary implementation to the jurisdictional condemnation decision without immediately incurring in the penalty.

In addition to the initial term—of which, moreover, jurisprudence made application already in the previous regime (among others, Ordinary Court of Terni, Order of 6 August 2009)—the novella expressly recognized the possibility that the judge might predetermine also the maximum duration of the measure, affixing to it a final term directed to avoid that the creditor can derive profit from the failure or delayed fulfillment of the main obligation.

In the explanatory report to Legislative Decree no. 149 of 2022 it is clarified, in fact, that the duration limit was provided only for obligations having "as content a service," while it does not assume relevance for those of non-performance, in which "since the sanction becomes operative only where a behavior contrary to the obligation of abstention is held, there is no need to ensure that the entity of the sum to be corresponded does not become exorbitant. [...] In case, instead, of positive obligations, it can be appropriate to place a maximum limit to the duration of the coercive measure, and thus to the total sum that becomes owed. It is not in fact possible that it becomes perpetual."

5.3.5.– Significant is also the attribution to the enforcement judge of the competence to order the indirect coercive measure, where it was not already ordered in aid of a condemnation provision rendered in the cognitive process, as well as when its issuance is requested in service of an out-of-court enforcement title.

5.3.6.– Lastly, Article 3, paragraph 7, letter r), of Legislative Decree no. 164 of 2024 intervened again on the second paragraph of Article 614-bis of the Code of Civil Procedure inserting in it the clarification according to which the indirect coercive measure, where it is ordered by the enforcement judge, loses effectiveness in case of extinction of the enforcement process.

5.4.– The coercive measure in question is configured as an accessory statement to a condemnation provision issued at the outcome of a process of full and exhaustive cognition—or also celebrated with simplified modalities or rituals—, or, according to the prevailing interpretation, to a precautionary provision (among others, Ordinary Court of Pavia, Third Civil Section, Order of 18 March 2026; Ordinary Court of Arezzo, Civil Section, Order of 22 June 2022), provided that it is anticipatory of the effects of the condemnation.

In order to strengthen its persuasive effect, Article 614-bis of the Code of Civil Procedure attributes to the condemnation to the payment of the sum an autonomous suitability to compulsory implementation, "that is to say nature of enforcement title for the satisfaction of the pecuniary credit arising from the non-fulfillment of the main obligation" (Cass., no. 22714 of 2023).

The judge who grants the *astreinte* limits himself, moreover, to indicating the calculation criteria for its determination, not being able—awaited the *pro futuro* projection of the statement—also to quantify it in its exact amount.

It is not, however, provided for a subsequent judgment in which the sum accrued in time can be definitively liquidated.

It is, therefore, the burden of the creditor who intends to act executively the measure to quantify its amount, in the notice of enforcement, based on the criteria prefigured in the provision that granted it.

In this the discipline under examination differs from that of the homologous institution of the French legal system, which contemplates two distinct proceedings in which, respectively, the judge orders and liquidates the *astreinte* (Articles L 131-1 and L 131-3 of the *Code des procédures civiles d’exécution*).

5.5.– The obligor can contest the coercive measure with the opposition to execution pursuant to 615 of the Code of Civil Procedure, with which, however, as clarified by the jurisprudence of legitimacy, censures concerning the elements already appreciated discretionally by the cognitive judge in ordering the measure itself cannot be formulated, as this would be equivalent to putting into discussion the intrinsic decisional content of the coercive provision.

The reasons deducible with the remedy referred to in Article 615 of the Code of Civil Procedure are, therefore, circumscribed, in addition to the facts extinguishing, impeding or modifying the credit right verified subsequently to the formation of the title, to the grievances related to the existence of the prerequisites legitimizing the concrete implementation of the coercive measure, "but only and solely in the exact and precise terms already identified in the provision of imposition of the same" (Cass., no. 22714 of 2023).

Nor, according to the pronouncement just recalled, can the reduction of the measure be requested, which "concretizes itself into a modification of the injunctive scope of the judicial title, allowed solely in cognitive ambit and thanks to the experience of the appropriate impugnatory tools proper and typical of the cognitive provision to which the indirect coercive measure accesses."

6.– Everything that precedes admitted, the questions of constitutional legitimacy are not well-founded in the terms clarified below, being possible an interpretation of the challenged provision oriented to its conformity with the parameters evoked by the referring party.

6.1.‒ Based on the discipline under scrutiny, the amount of the indirect coercive measure must be determined on the basis of a series of parameters—which the text of Article 614-bis of the Code of Civil Procedure in the formulation *ratione temporis* applicable identifies, at the second paragraph, in the value of the dispute, in the nature of the service, in the quantified or foreseeable damage and in any other useful circumstance—, whose purpose is that of avoiding that the measure results disproportionate "in light of the legitimate aim that the creditor pursues" (Court of Cassation, Third Civil Section, Order no. 7927 of 23 March 2024).

At the outcome of a prognostic evaluation, the judge must, therefore, identify a sum that, on one side, appears suitable to produce an adequate psychological pressure on the obligor and, on the other, in the event that the coercive effect does not materialize, cannot translate into an exorbitant patrimonial sacrifice for the recipient.

The *astreinte* can, in fact, logically decompose itself into a moment in which it functions as a threat of condemnation to the payment of a sum of money that grows—thus multiplying the economic sacrifice at the expense of the obligor—with the persistence of the non-fulfillment; and into a second phase in which "the threat, becomes, on the basis of the observation of the behavior concretely manifested by the debtor, a true and proper sanction" (Cons. State, plenary session, no. 7 of 2019; in non-dissimilar terms Cass., no. 7613 of 2015).

6.2.– The *pro futuro* effectiveness of the coercive statement imposes, moreover, that, so that both the above-indicated functions conserve a relationship of coherence with the interests regulated by the condemnation provision, the ordered measure be predetermined also under the temporal profile.

Except for the hypothesis in which the compulsory provision is placed in service of an obligation of abstention devoid of duration determination, the provision of a final term (or of a maximum quantitative limit) must, in fact, be believed consubstantial to the same technique of protection under examination, being the perpetuity of the *astreinte* irreconcilable, already on the logical plane, with its typically soliciting function.

In particular, a situation cannot be tolerated in which the constraint arising from the provision pursuant to Article 614-bis of the Code of Civil Procedure persists *sine die* even resulting its supervening unsuitability to realize the purpose for which it had been imposed.

In fact, when the non-observance of the judicial command assisted by an *astreinte* devoid of a temporal or quantitative limit persists for a significant time without the creditor resolving to satisfy his own interest through direct execution—or, where this is not practicable by reason of the unfungibility of the service, resorting to the residual compensatory protection—the same "penalty," increasing automatically, by reason of the mere passage of time, ends up losing every correlation with the concrete needs of protection considered at the moment of its fixing.

In this regard, the same administrative jurisprudence has had way to underline that, in the albeit peculiar procedure with which indirect coercive measures are ordered and liquidated in the compliance judgment, where the fulfillment of the obligation assisted by the *astreinte* becomes temporarily or definitively impossible, the function of stimulus and the sanctioning one, proper to the measure under examination, would no longer have reason to exist, and where not elided or adequate, would be transformed into an instrument of compulsory transfer of wealth devoid of every valid cause (in this sense, again, Cons. State, plenary session, no. 7 of 2019).

6.3.– As however already highlighted, in the formulation subjected to scrutiny, Article 614-bis of the Code of Civil Procedure does not contain explicit indications regarding the predetermination of the duration of the coercive measure.

Moreover, the discipline under examination, neither in the challenged version, nor in the text currently in force, identifies a specific procedural moment in which the judge can verify the persisting equity of the assessment performed *ex ante* and possibly recalibrate the coercive measure—also through the subsequent affixing of a maximum cap or a final term of effectiveness—in consideration of the supervening events *medio tempore* verified.

The Italian legislator has not, in fact, intended to adopt a bifasic procedural model analogous to the French one, in which, as remembered, to the judgment in which the *astreinte* is ordered follows another deputed to its liquidation.

6.4.– This Court believes, however, that to the, albeit not peregrine, preoccupations of the *a quo* judge about the existence of a regulatory void harbinger of unreasonable consequences and disparity of treatment ‒ as well as damaging to the effectiveness of judicial protection and incident in a disproportionate way on the patrimony and on the contractual freedom of the recipients of coercive measures ‒ it is possible to cope by extracting from the system the procedural tool suitable to avert the denounced constitutional *vulnus*.

It is, in fact, to be believed that in the cases, like the one in examination, in which the coercive measure was established without the indication of the duration or of a quantitative maximum limit, but the persistence of the non-fulfillment beyond an appreciable lapse of time reveals its concrete inadequacy to coerce the will of the obligor, the judge of the opposition to the execution threatened or undertaken to satisfy the credit as *astreinte*, while not being able to modify the intrinsic content of the coercive provision by accompanying it, now for then, with a final term or a maximum cap, well can note that it, after a certain duration, has become useless.

Such a situation, rendering objectively unlikely that the main obligation can still be satisfied through voluntary fulfillment—albeit induced by the threat of the *astreinte*—of the obligor, not only demonstrates the unfruitfulness of the indirect coercion, but attests, at the same time, the supervening loss of effectiveness of the coercive provision—since implying the possibility of a spontaneous cooperation of the recipient—and, consequently, the current non-existence of the credit right for which one proceeds executively.

Such conclusion does not contrast with the principle, affirmed by the consolidated jurisprudence of legitimacy, according to which in the judgment of opposition, preventive or subsequent, to execution the judicial command consecrated in the enforcement title cannot be put back into discussion, having to be the defects and the reasons of injustice of the decision asserted, where still possible, during the process in which the title was issued (Court of Cassation, Sixth Civil Section, Order no. 3277 of 18 February 2015; in a conforming sense, among others, Cass., no. 2785 of 2025 and no. 22714 of 2023).

If, in fact, to the judge of the opposition to execution it is not allowed to modify the content of the activated coercive provision—not being able he, in particular, to re-evaluate the criteria of determination of the measure fixed by the judge of the cognition or of the precaution—an analogous preclusion cannot be believed operating for the verification of the persisting utility of the indirect coercion, treating itself of a fact subsequent to the formation of the judicial title for which the limit of conversion of the defects of the same into reasons of appeal, retractable from Article 161 of the Code of Civil Procedure, does not operate.

6.5.– In the judgment referred to in Article 615 of the Code of Civil Procedure the judge called to control the correctness of the self-liquidation of the owed sum, operated in the notice of enforcement and the other conditions to proceed executively for the recovery of the *astreinte* can, therefore, ascertain, also *ex officio*, that after a certain time—whose congruence must be appreciated in light of the peculiarities of the concrete case-fact as emerging from the provision pursuant to Article 614-bis of the Code of Civil Procedure—, the persuasive effectiveness of the measure has ceased, since it did not sort the pursued effect.

And it is on the basis of the temporal limit of effectiveness thus identified that the same judge of the opposition (preventive or subsequent) to execution can quantify the sum in relation to which the creditor has the right to proceed executively.

7.– The challenged discipline, interpreted in the terms illustrated above, finds back its own vocation compatible with the constitutional principles of reasonableness, of proportionality and of effectiveness of judicial protection, since it satisfies the need to delimit the effectiveness of the coercive measure issued without a final term within the temporal (or quantitative) margins strictly necessary to the realization of its typical function, averting the risk that it is transformed into an instrument of unjustified locupletation for the creditor and of disproportionate sacrifice for the debtor.

For the other side, the indicated reconstruction does not exceed the limits of the cognitive powers of the judge who, based on the consolidated jurisprudence of legitimacy, characterize the opposition pursuant to Article 615 of the Code of Civil Procedure.

The verification of the persistence of the compulsory function of the activated coercive measure does not reach, in fact, the elements already appreciated discretionally by the cognitive judge to order the same and to indicate the criteria for its determination, and, therefore, the intrinsic decisional content of the provision pursuant to Article 614-bis of the Code of Civil Procedure, but falls into the assessment of the *vis* executive of the activated title.

8.– In conclusion, in light of the constitutionally oriented interpretation performed here, the provision subjected to scrutiny does not violate Articles 3, 24, 41, 42, second paragraph, 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the First Protocol to the ECHR and to Articles 6 and 13 of the European Convention on Human Rights.

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the question of constitutional legitimacy of Article 614-bis of the Code of Civil Procedure—in the text prior to the amendments introduced by Article 3, paragraph 44, of Legislative Decree no. 149 of 10 October 2022 (Implementation of Law no. 206 of 26 November 2021, delegating the Government to increase the efficiency of civil proceedings and to revise the regulation of alternative dispute resolution instruments and urgent measures for the rationalization of proceedings concerning the rights of persons and families as well as matters of compulsory enforcement)—, raised, in reference to Article 117, first paragraph, of the Constitution, in relation to Article 47 of the Charter of Fundamental Rights of the European Union, by the Ordinary Court of Brindisi, Civil Section-Insolvency Procedures Sector, sitting as a single judge, with the order indicated in the epigraph;

2) declares not well-founded, in the senses referred to in the reasoning, the questions of constitutional legitimacy of Article 614-bis of the Code of Civil Procedure—in the text prior to the amendments introduced by Article 3, paragraph 44, of Legislative Decree no. 149 of 2022—, raised, in reference to Articles 3, 24, 41, 42, second paragraph, 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the First Protocol to the European Convention on Human Rights and to Articles 6 and 13 of the European Convention on Human Rights, by the Ordinary Court of Brindisi, Civil Section-Insolvency Procedures Sector, sitting as a single judge, with the order indicated in the epigraph.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 13 April 2026.

Signed:

Giovanni AMOROSO, President

Maria Rosaria SAN GIORGIO, Reporting Judge

Roberto MILANA, Director of the Chancellery

Deposited in the Chancellery on 18 June 2026

 

The anonymized version conforms, in text, to the original