Legal Requirements for Injunctions and Provisional Measures

Characteristics of Injunctions

Any injunction should consist of an order that relates to the assets and rights of the defendant. No provisional measures can affect the person of the defendant; they are strictly patrimonial in nature.

These measures should be aimed exclusively at guaranteeing the effectiveness of the judicial protection that may be granted in a possible favorable judgment.

Examples of Provisional Measures

• Pre-judgment attachment
• Deposit of a movable asset

Legal Requirements under Article 726 CPA

There is no closed list of injunctions; any measure deemed adequate to protect a future judgment is considered a provisional measure, provided that it meets specific requirements. According to Article 726 of the Civil Procedure Act (CPA), a measure must be:

• Aimed exclusively at the purpose of protecting the prospective favorable judgment.
• Irreplaceable by another measure that is equally effective but less damaging for the defendant.

Furthermore, the measure must comply with basic legal characteristics, such as being provisional.

Requirements to Obtain a Provisional Measure

1. Pendency of Legal Proceedings

As a general rule, provisional measures shall be requested together with the main claim (Article 730 CPA). Exceptionally, they may be requested prior to the claim; if granted, the plaintiff is required to file the complaint within 20 days. They can also be requested after filing the complaint when there is sufficient necessity based on subsequent facts and evidence. The measure is always ancillary, regardless of whether the main proceedings have started.

2. Fumus Boni Iuris

Fumus boni iuris (the appearance of a good right) requires the plaintiff to submit all documents and arguments that allow the Court—without deciding on the merits of the case—to determine that the claim is reasonably beyond doubt. This is not a binding judgment but a provisional circumstantial judgment. You must convince the Judge that you are likely to win the case.

3. Periculum in Mora

Periculum in mora (risk arising out of delay) implies that if the measure is not granted immediately, there will be an obstacle to the effective judicial protection that might arise should the judgment be favorable. This requirement focuses on the risks deriving from procedural delays and the protection the plaintiff is seeking.

4. Security Given by the Plaintiff

The plaintiff must provide security (usually in the form of money) to cover the costs and potential damages the application of the measure may cause to the defendant. This security is returned if the final judgment is favorable.

The Court decides the amount and type of security (such as cash or a bank guarantee), taking into consideration the nature of the claim and the likelihood of a favorable judgment. Generally, a stronger fumus boni iuris may result in a lower security requirement.