Italy – Bankruptcy Reform

The Italian legislator has enacted law 19.10.2017 n. 155 “Law. n. 155” or “the Reform”; through the said piece of legislation, the Italian government is entitled to adopt a series of legislative decrees (the decrees should be enacted very soon) aimed, on the one hand, at reforming substantially the Royal Decree n. 267/1942 “Bankruptcy Law”, on the other side, at amending accordingly the so called procedure of “over-indebtedness”.

It is interesting to note that art.1 of the Law n. 155 mandates that the Italian legislator, while adopting the said decrees, takes into account the EU regulation 2015/848, EU Commission recommendation n. 2014/135/EU and, most importantly, the UNCITRAL principles and guidelines.

Art. 2 sets forth some fundamental principles that as well must be followed by the Italian legislator.

First of all, the term “bankruptcy” i.e. Fallimento shall be replaced by the notion of judicial liquidation, in this respect, the criminal rules regarding bankruptcy shall be amended consequently. The so called ex officio (i.e. on Court’s initiative) bankruptcy declaration as provided by article 3 of Legislative decree n. 270/1999 (the law governing the so-called extraordinary administration) shall be repealed.  The notion of state of crisis (a relative new notion) shall be properly defined as probable insolvency in the future. The definition shall be shaped taking into account the scientific development in the field of the business and administration science. Nonetheless, the definition of insolvency encompassed at art. 5 of Bankruptcy law shall remain the same.

Art. 2 further dictates that in order to ascertain the debtor’s state of crisis or insolvency a unique model procedure shall be adopted pursuant to article 15 of the Bankruptcy Law. The procedure shall be characterized by speediness, even in the ensuing phase of opposition. Legal standing in order to file a petition for bankruptcy shall be bestowed upon the supervising bodies of the business entity and upon the public prosecutor. The latter shall have the right to file a petition whenever he is aware of a state of crisis affecting the business entity.

The proceedings aimed at ascertaining the state of crisis and or insolvency shall concern every category of debtor. Therefore legal entities and individuals alike shall be subject to the procedure that shall regards: commercial business entities, agribusinesses, artisans, entrepreneurs, consumers, professionals, collective entities with the exception of public entities.

Moreover, the Reform shall adopt the notion of center of main interests (“COMI”) as developed within the framework of EU law and case law.

Preeminence and priority shall be given to the restructuring proceedings whereby the ongoing concern of the business is safeguarded in view of the creditors’ satisfaction. In this latter case, the convenience of the rescue plan needs to be properly illustrated.   Liquidation, by contrast, is reserved to those cases where no viable alternative is possible. Abuses in any event should be prevented.

Art. 2 also specifies that the Italian Legislator has to coordinate the new rules with the provisions governing the automated process and those regarding the service process to the certified electronic e-mail couriers which shall be applicable to professionals as well.

One of the main goals of the Reform is to reduce the time and the costs associated to the activities to be performed in the proceedings. In particular, the fees of the professionals involved in the proceedings should be kept under control in order to increment the amount of money to be distributed in favor of the creditors.

Another objective of the Reform is to reframe those provisos whose interpretation has generated a contrast amongst the professionals, the scholars and the courts, in order to favor a construction of the rules consistent with the principles and the purposes established by the Reform.

Likewise, for sake of uniformity and consistency, the Reform backs a process of high-level specialization amongst Courts and professionals involved in the procedures. In order to achieve those goals the Reform moves into different directions.

In this respect, the Courts specialized in enterprise matters shall have jurisdiction over the proceedings and all the deriving litigations regarding enterprises subject to the Extraordinary Administration and large group of companies. On the other hand, the competence for the proceedings regarding the consumers, professionals and minor entrepreneurs shall remain unaltered while for the other procedures shall be competent those Courts that shall meet certain requirements in terms of: (i) the number of professional judges involved in the bankruptcy field; (ii) the number of proceedings that have been dealt with in the last five years; (iii) the number of proceedings that have been completed in the last five years; (iv) the average duration of the proceedings during the last five years; (v) the ratio between the requirements above mentioned and the national average; (vi) the number of business entities registered within the competent records together (vii) with the number of the resident population within the relevant territory of the Court.

Moreover, a list of professionals having the requisites of competence, independence and experience o be appointed as administrator, receivers or commissioners shall be kept by the Ministry of Justice.

Last but not least, the insolvency proceedings shall be harmonized with The European Social Charter for the protection of the employment.