Summary
A power of attorney authenticated by a Belgian public notary with a view to a proceeding taking place in Italy is valid when it may be assumed, in light of the unity of the document embodying both the power of attorney and the authentication, that, while from a formal standpoint the activity concretely performed by the notary may be traced back to the so-called “minor certification” provided by Belgian law, it is nonetheless tantamount to the one provided by Italian law. In fact, pursuant to Article 12 of Law No 218/1995 the power attorney is subject to the conditions for validity laid down by the Italian law of civil procedure; however, in the part where said law allows the use of an authentic act or a private deed, it refers to substantial law and thus subjects the formal validity of the power of attorney to the lex loci actus as long as this does not conflict with the fundamental principles of the Italian legal system.
The action for infringement of Articles 343 and 346 of the Code of Civil Procedure is unfounded: the claim against the validity of the power of attorney granted in Belgium in favour of the defendant domiciled there may not be refiled on appeal. In fact under Article 329, second alinea of the Code of Civil Procedure the party prevailing on the substance of the matter in the judgment of first instance shall, with a view to avoiding the preclusion of the question solved in a manner unfavourable to it, file a cross appeal. The mere refiling of the motion while entering appearance on appeal is not sufficient to prevent res judicata on this point.
Because under Article 49 of Regulation (EC) No 44/2001 foreign judgments which order a periodic payment by way of a penalty shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin, the judgment that orders the payment of interest on arrears, which is rendered against a company domiciled in Belgium and only indicates the effect of such interests without specifying their nature and amount, conflicts with the principle of effectiveness of European Union law and shall be reformulated as such omission precludes its enforcement in Belgium.