Anticipatory interim measures: Italian legislation aligns with European Law
23 Jun 2026
Law Decree No. 100 of 12th June 2026
On 23rd April 2026, the Court of Justice of the European Union, ruling in a preliminary proceeding, held that Italian Law regulating interim measures in industrial property matters was contrary to European law (Case C-132/25).
Specifically, the Court of Justice found that Article 132, paragraph 4, of the Italian Industrial Property Code (“IPC”) – according to which interim orders “anticipating the effects of a judgment on the merits” remained effective even in the event that no lawsuit was filed after the conclusion of the interim proceedings – did not comply with European law. According to the Court of Justice, the provision was contrary to Article 9, paragraph 5, of Directive 2004/48/EC (so-called “Enforcement Directive”), which provides that the effects of interim measures must cease, at the defendant’s request, if the plaintiff does not initiate proceedings on the merits within the relevant deadline.
Therefore, to conform the Italian legal system to the decision of the Court of Justice, Article 2 of Law Decree no. 100/2026 amended both Article 132, paragraph 4, of the IPC and the corresponding provision regulating copyright, Article 162-bis, paragraph 4, of the Italian Copyright Law.
Specifically, starting from 12th June 2026, if an interim proceeding concerning industrial property or copyright is concluded with the issuance of measures “anticipating the effects of a judgment on the merits”, but proceedings on the merits are not initiated or become extinguished, the party who was subject to the interim measures may, within a 30-day deadline, request the judge who issued those measures to declare them ineffective. Interestingly, this request is different from the one provided under Article 669-novies, paragraph 2, of the Italian Code of Civil Procedure, which is also aimed at obtaining a declaration of ineffectiveness of interim measures in the event of a failure to initiate proceedings on the merits, but is not subject to any deadline.
Lastly, Article 2, paragraph 3, of Law Decree No. 100/2026 introduces a transitional regime for anticipatory interim orders issued before 12th June 2026 and which were never followed by a judgment on the merits. Namely, within 60 days from the above-mentioned date, the parties subject to those measures will be able to file a request under Article 669-novies, paragraph 2, of the Italian Code of Civil Procedure to obtain a declaration of ineffectiveness. However, in the same proceeding, the party that originally obtained the interim ruling in its favour will be permitted to request a new deadline to file a lawsuit, and pending such deadline the interim measures will remain effective.
The legal framework described above is currently in force; however, it may undergo further amendments when Law Decree No. 100/2026 is submitted to the Italian Parliament to be converted into law.
Carmine Di Sanza
