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Register of non-possessory pledges

01 September 2021

On 10 August 2021, the Decree of the Ministry of Economy and Finance of 25 May 2021, No. 114 was published in the Italian Official Gazette, containing the "Regulation concerning the register of non-possessory pledges (pegno mobiliare non possessorio)" (the "Decree").

The Decree implemented Article 1 of Decree-Law of 3 May 2016, No. 59, converted with amendments into Law of 30 June 2016, No. 119 and establishing the non-possessory pledge to guarantee receivables in connection with the conduct of business. The mentioned Article 1 requires a ministerial decree to define the following topics: (i) "the registration, consultation, modification, renewal or cancellation in the register, the obligations of those who carry out such operations as well as the methods of access to the register itself", providing exclusively for electronic means, and (ii) the rights of view and of certificate, to be established in order to guarantee at least the coverage of the costs of setting up, managing and developing the register.

The Decree therefore establishes at the Revenue Agency the computerised register for the registration of non-possessory pledges (the "Register"), in which the formalities submitted must be entered daily, in the order in which they are received.

The main innovative elements provided for by the Decree concern:
 
(i) the definition of the types of constitutive acts: pursuant to Article 3 of the Decree, registrations and other formalities may only be carried out by virtue of: (i) a public deed; (ii) a notarized or judicially certified private deed; (iii) a contract digitally signed pursuant to Article 24 of Legislative Decree of 7 March 2005, No. 82; or (iv) a court order;
 
(ii) the types and contents of the application for registration in the Register: Article 3(2) of the Decree lists analytically the types and contents of the application for registration (similar formalities allow the renewal, cancellation and publicity of the modifying events of the pledge), which can be summarised as follows: data of the parties involved (creditor, debtor, third party pledger); description of the receivable and maximum amount secured; and description of the pledged asset, accompanied by all the useful identifying elements including the product category, the economic destination, the pledger's right to transform the asset, the creditor's right to appropriate the asset and/or to lease it during the enforcement phase.
 
The registration process introduced by the Decree is inspired by maximum simplicity and is fully telematic;
 
(iii) the modalities of consultation of the Register and the related fees: for the operations in the Register (except those requested by State administrations or carried out in favour of the State) are due the fees indicated in a specific table attached to the Decree, which will have to be updated every two years in order to ensure the maintenance of the financial balance.
 
The Decree, which entered into force on 25 August 2021, sets a timeframe of eight months from that date for the completion of the IT system that will manage the Register by the Italian Revenue Agency. 
 
Authors: Luca Lo Po' and Marta Tiraboschi 

Further Reading