I INSOLVENCY LAW, POLICY AND PROCEDURE
i Statutory framework and substantive law
The statutory framework for insolvency-related procedures in Italy is primarily set out in Royal Decree No. 267 of 16 March 1942 (the Bankruptcy Law). Other pieces of legislation are provided with regard to specific sectors or situations.
The Bankruptcy Law has undergone extensive revisions in the past decade, which have shifted the focus from the protection of creditors through the liquidation of assets to a wider range of opportunities for discharging debts via composition.
By the recently enacted Legislative Decree No. 14 dated 12 January 2019, the Italian Council of Ministers has significantly reformed Italian bankruptcy law, by taking into account EU Regulation No. 848/2015 (the Recast Bankruptcy Regulation), Commission Recommendation 2014/135 and the UNCITRAL principles on insolvency (the Reform), with the aim of rationalising and reorganising the legislative picture.
The Reform has introduced an 'alert mechanism' to be used at the first signs of bankruptcy to press the management of a company to intervene promptly in the event of a crisis. For this purpose, a special body to oversee the composition of business crises, an OCRI,2 is to be set up at every Chamber of Commerce. Thus, as soon as the crisis signals put in place by the new provisions are detected, a company's board of statutory auditors and external auditors shall be responsible for reporting them first to the managing body and then, should the managing body fail to take any action, to the OCRI. The Italian National Institute for Social Security and the Italian Tax Authority shall also have similar obligations if a debtor reaches certain thresholds of indebtedness towards those organisations.
Specific amendments have also been introduced to the Civil Code, to increase the liability of a company's managing body, in light of its duty to give a proper structure to the company, to avoid a crisis occurring or to intervene promptly in the event of a crisis, as well as a specific duty to protect the company's assets. Moreover, the Reform has widened the circumstances in which a company has a duty to appoint a supervisory body or a statutory auditor.
The Reform has also provided stricter requirements for access to the pre-bankruptcy composition procedures. Furthermore, the appointment of a specialist judge for minor bankruptcy cases is being considered.
The Reform has also filled an important gap in the current Italian legislation, by introducing a specific discipline applicable to the insolvent groups. In particular, the Reform has introduced the possibility for an insolvent group of companies to file a single application for debt restructuring agreement or for composition with creditors.
According to the new provisions, priority shall be given to those proceedings the aim of which is to overcome the crisis by carrying on the business as a going concern, provided that they are in the interest of creditors. The Reform, therefore, boosts debt restructuring arrangements and out-of-court debt restructuring plans.
The Reform has also introduced a special register, to be kept by the Ministry of Justice, including the names of all entities (either partnerships or companies) qualified to be appointed by the competent courts as trustees, liquidators or commissioners in insolvency procedures.
Except for a few provisions applicable as from 16 March 2019 (in particular the special register and the amendments to the Civil Code indicated above), the Reform shall enter into force on 15 August 2020. Therefore the insolvency procedures opened before that date shall continue to be governed by the previous rules outlined below.
The aim of insolvency proceedings is usually to liquidate an insolvent entrepreneur's assets with full discharge in terms of all creditors.
In recent years, alternative in-court and out-of-court arrangements have been introduced, with the purpose of facilitating the discharge of insolvent companies through compositions with creditors.
iii Insolvency procedures
Traditional Italian insolvency proceedings are formal and require the involvement of courts or other public authorities, regardless of the size of the bankruptcy estate. Consequently, they are usually lengthy and costly, the average duration currently being about seven years.3 Currently, under Italian law, the main insolvency procedures for rehabilitation or liquidation of a company are the following:
- pre-bankruptcy composition; and
- debt restructuring arrangements.
Bankruptcy is a court-supervised procedure for the liquidation of an insolvent company's assets and distribution of the proceeds. It results in the company's dissolution. Bankruptcy applies to business undertakings, with the exception of state entities and small businesses.
The prerequisite for a declaration of bankruptcy is a irreversible state of insolvency. This exists where (1) the company is in default on its payment obligations, or (2) other evident indications exist that the company is unable to meet its current liabilities regularly.4
Pursuant to Article 15 of the Italian Bankruptcy Law, bankruptcy cannot be declared if the company's overdue debt amounts to less than €30,000.
The petition for bankruptcy must be filed with the bankruptcy court of the district where the debtor has its 'main place of business' in Italy.
The delegated judge is appointed by the bankruptcy court at the time of adjudication. In the adjudication judgment, the bankruptcy court also appoints a bankruptcy receiver, an accountant or lawyer experienced in insolvency matters and enrolled on a special register maintained by the bankruptcy court. The bankruptcy receiver acts in conjunction with a creditors' committee, consisting of three to five creditors appointed by the delegated judge, which has an advisory as well as a supervisory role in the bankruptcy procedure. The bankruptcy receiver fixes his or her seal on the assets of the bankrupt entity shortly after his or her appointment. He or she must prepare a liquidation plan within 60 days of the fixing of the seal and not later than 180 days after the bankruptcy judgment for the approval of creditors' committee members.
The aforesaid plan must indicate the deadline for completing the liquidation of the assets, which in any case cannot go beyond two years from the filing of the judgment declaring bankruptcy, unless the receiver deems it necessary to ask for a longer term and, therefore, specifically justifies this request.
From the time of the adjudication, the debtor is dispossessed. The bankruptcy receiver manages and disposes of the assets under the direction of the delegated judge. The debtor may no longer act in court validly as plaintiff or defendant in relation to the assets. The bankruptcy receiver is vested with such powers upon the authorisation of the delegated judge. However, all pending proceedings in which the debtor is involved are automatically stayed from the date the adjudication is issued.
From the date of the adjudication, no attachment, garnishment or other enforcement action may be initiated or continued against assets of the bankrupt estate. Where such actions have been commenced prior to adjudication, they will be automatically stayed and absorbed in the bankruptcy procedure.
Creditors are required to submit their proofs of claim at least 30 days before the hearing for the verification of the claims. At the hearing, the delegated judge either admits or rejects the claims. Once a review of all claims is completed, the delegated judge issues a statement of liabilities by decree. Creditors may challenge the decree both in connection with their own and other creditors' claims before the bankruptcy court.
If proofs of claim are submitted later than 30 days before the hearing, they are considered 'late claims'; however, no late claims are entertained that are submitted later than one year after the judge's decree issuing the statement of liabilities. Late-admitted creditors share only in distributions made after the time of admission.
By default, adjudication involves the cessation of all the activities of the company with a view to a sale of all assets. However, the bankruptcy court may order that business operations be continued whenever cessation could cause 'serious harm', provided that the continuation does not adversely affect the creditors of the bankrupt debtor. As an alternative, the delegated judge may, with the consent of the representatives of the creditors, authorise the lease of the business as a going concern to a third party. This can be authorised whenever useful for the purpose of eventually selling the business under more favourable terms.
Finally, the business of the bankrupt company could be sold to a third party en bloc as a going concern, rather than through a sale of the individual assets that comprise it.
A fundamental principle of the Italian Bankruptcy Law is the equal treatment of all creditors (par condicio creditorum), according to which, absent statutory priorities, no creditor may be paid a higher percentage of his or her claim than other creditors. As a consequence, any transaction or payment that has the effect of putting a creditor into a better position than it would otherwise have been as compared with other creditors amounts to a violation of the par condicio principle and, therefore, potentially subject to clawback actions.
The statute of limitations for initiating clawback action proceedings is three years from the declaration of bankruptcy or, if earlier, five years from the act or transaction to be clawed back. A few exemptions from clawback are specifically provided for by the Bankruptcy Law.
Note that the equality principle described above applies only to those creditors who have an unsecured and non-preferred claim. There are in fact two groups of creditors that enjoy preferential treatment: creditors who hold a security interest and creditors who have a preference under law.
Once all the assets have been liquidated and the relevant payments made to creditors, upon request of the bankruptcy receiver or of the debtor, the bankruptcy court declares the bankruptcy closed and the company ceases to exist.5
Pre-bankruptcy composition is a court-supervised procedure, the purpose of which is to discharge a debtor's debts and avoid bankruptcy. The debtor must submit a plan, which can provide for:
- the restructuring or discharge of debts in whatever form, including transfer of assets, assumption of debts or any other transaction, including the sale of assets to creditors in satisfaction of their claims, the issuance of shares, quotas or bonds (including convertibles) or other financial instruments;
- the transfer of the assets to a third party (assuntore) who also assumes the debt, or to creditors of the debtor (or subsidiaries of such creditors), or to new companies to be established during the course of the procedure, the shares of which are allocated to the creditors, and which can act as assuntore; and
- the division of creditors into classes based on criteria (such as legal position, economic interests, etc.).
A pre-bankruptcy composition plan is available to debtors who are in a 'state of crisis' (which can be, but is not necessarily, insolvency).6
To strengthen the position of unsecured creditors, Article 160 of the Italian Bankruptcy Law provides that the pre-bankruptcy proposal shall have to grant the payment of at least 20 per cent of the unsecured creditors' claims. This provision does not apply to pre-bankruptcy proposals that contemplate business continuation pursuant to Article 186 bis of the Italian Bankruptcy Law.
The pre-bankruptcy composition plan must be submitted to the bankruptcy court of the district where the debtor has its main place of business in Italy.
The debtor must attach to the petition, among other things, a plan containing an analytical description of the necessary means and timing for the implementation of the proposal. The restructuring plan and the documents indicated above must be accompanied by a report drawn up by a qualified professional (one who is enrolled on the register of auditors and satisfies certain requisites), who is appointed by the debtor and who certifies the truthfulness of the company's data and the feasibility of the restructuring plan.
Moreover, to give the company in distress more time to prepare a viable pre-bankruptcy proposal, it is also provided that the debtor may file an application for the composition with creditors simply attaching the three most recent financial statements, postponing to a later time the filing of the proposal, the plan and the other documents to be annexed thereto.
These other documents must be filed within a term fixed by the delegated judge (between 60 and 120 days). This term can be extended by no more than an additional 60 days. During this period, creditors are prohibited from starting or continuing enforcement and foreclosure proceedings over the debtor's assets (the automatic stay). The automatic stay will be extended for the whole period of the procedure if the debtor is admitted to the pre-bankruptcy composition.7
If the bankruptcy court determines that the conditions are met, it will start the procedure, appoint a delegated judge and judicial commissioner, and schedule a creditors' meeting within 120 days. On that occasion, the unsecured creditors are called to vote on the proposal.8
The pre-bankruptcy composition plan is approved if the proposal obtains the favourable vote of the majority of the unsecured creditors.
After the creditors' approval, the bankruptcy court homologates the pre-bankruptcy composition plan and appoints one or more liquidators to fulfil the approved plan, if it has to be realised by means of a transfer of assets.
In cases of breach of the pre-bankruptcy composition plan or fraud, bankruptcy may follow, at the behest of the bankruptcy court.
If the pre-bankruptcy composition plan is implemented, the debts are discharged and the debtor may return to ordinary operations (if the assets of the company are still in his or her possession).
Claims arising in the course of the implementation of the plan – either before or after homologation (conditional upon the bankruptcy court confirming such priority in the decree of admission) – are granted highest priority and must be paid in full.
A debtor may also, subject to bankruptcy court approval:
- enter into first priority financing agreements to support the plan, even before having produced all the documentation to be filed with the request of pre-bankruptcy;
- according to Decree No. 83/2015, obtain urgent interim finance that is necessary for their business needs without having to file a certification issued by an independent expert; and
- pay pre-existing claims relating to the purchase of goods and services, to the extent that the expert confirms that the purchase is essential for the continuation of the business activity and to ensure the best satisfaction of creditors.
Throughout the procedure, the debtor remains in possession and retains management powers under the supervision of the judicial commissioner and the delegated judge.
The creditors must file a proof of claim with the judicial commissioner. Any disputes regarding these claims will be settled by the bankruptcy court. The creditors' participation in the proceedings is crucial, since they have to vote for or against the debtor's proposal at the creditors' meeting.
The pre-bankruptcy composition plan can also include a tax settlement, applicable also to value added tax and unpaid withholding taxes.9
Debt restructuring arrangements
The Italian Bankruptcy Law allows for debt restructuring arrangements whereby a debtor 'in a state of crisis' enters into a composition with creditors that is binding on all the debtor's creditors, provided that:
- the debt restructuring arrangement is agreed by creditors representing at least 60 per cent of the value of the debts; and
- the reasonableness and feasibility of the debt restructuring arrangements, the truthfulness of the company's accounting data and the suitability of such arrangements to ensure repayment of those creditors that did not agree with the arrangements are certified by an independent expert, who fulfils the requirements established in Article 67 of the Italian Bankruptcy Law.
In any case, the debtor must guarantee the full satisfaction of creditors who have not approved the arrangements.
The Italian Bankruptcy Law does not mandate a specific format for the debt restructuring arrangement. The parties can freely determine the specific obligations and how these are to be performed. For example, they may include the waiver of interest, guarantees, total or partial transfer of assets, different treatments between different classes of creditors or simple rescheduling.
The debt restructuring arrangement is subject to homologation. If the bankruptcy court does not homologate the debt restructuring arrangement, it does not automatically declare the bankruptcy of the debtor, as 'state of crisis' does not necessarily amount to insolvency.
During the phase of the filing with the court of the request for a formal confirmation of the debt restructuring arrangement, the company may request court permission to obtain new credit, which would be granted first priority and which may also be secured through pledge, mortgage or by an assignment of receivables by way of security. An opinion of an expert, certifying that the credit is 'functional to the best satisfaction of creditors', is required.10
Debt restructuring arrangements can also include a tax settlement, applicable also to value added tax and unpaid withholding taxes.11
iv Starting proceedings
Bankruptcy procedure is started on the basis of a petition which may be filed by (1) the debtor itself, (2) the public prosecutor or (3) a creditor.
A different regime is, of course, provided for pre-bankruptcy procedure, composition with creditors and restructuring arrangements, which may only be started by the initiative of the debtor himself or herself.
v Control of insolvency proceedings
During bankruptcy proceedings, the debtor is deprived of the authority to manage and dispose of its assets; these powers are delegated to a bankruptcy receiver under the direction and supervision of the delegated judge. The judge must approve any extraordinary transactions proposed by the official receiver and appoints a creditors' committee.
In a composition with creditors, the company is controlled by its management during the whole procedure, even if there is still a supervision of the judicial commissioner (usually an accountant or a lawyer having the powers of a public officer). To carry out specific extraordinary transactions, however, court approval is always required. Finally, in debt restructuring arrangements, the debtor continues to control its business.
vi Special regimes
Forced administrative liquidation
Forced administrative liquidation is a special bankruptcy procedure provided by the Bankruptcy Law that applies, in particular, to insurance companies, credit institutions (banks, investments firms, fund management companies, open-end investment companies and financial intermediaries), cooperative companies, trusts and auditing companies, cooperative consortia granting public contracts and mandatory consortia. Its aim is to liquidate the debtor.
The procedure may be started by a debtor, the directors of an insolvent company, or one or more creditors. The bankruptcy court must seek the advice of the government agency responsible for supervising the debtor's company. The judge may initiate proceedings by declaring the debtor insolvent and appointing a liquidator. All legal actions started by creditors against the debtor are then stayed.
The liquidator is assisted by a supervisory committee consisting of between two and five experts from the debtor's industry. In the case of large businesses, up to three liquidators may be appointed. Unlike other procedures, there is no delegated judge, as the procedure is mainly administrative in nature.
The liquidator must review claims and consider whether a composition is feasible. If so, he or she will prepare a plan of repayment with the debtor, to be submitted to the creditors. If a composition does not appear feasible, arrangements are made for the disposal of the debtor's assets and the distribution of proceeds among the creditors in the same order of priority as in bankruptcy.12
Extraordinary administration, which is regulated by Law No. 270 of 8 July 1999 (the Prodi-bis Law), applies only to companies (and their affiliates) that had at least 200 employees in the previous year and with total liabilities of at least two-thirds of either their total assets or their turnover in the previous financial year. According to Article 27 of Law No. 270, this procedure is open solely to companies that demonstrate 'concrete possibilities of recovery of economic balance of their activities'.
According to the Reform, effective from 16 March 2019, the business specialised section of the court located where the company has the centre of its main interests shall be competent in respect of extraordinary administration.
The procedure is in two phases.
The first is mainly focused on ascertaining the requisites for the admission of the debtor to this special procedure and is aimed at a declaration of the state of insolvency. In its judgment, the specialist court:
- appoints the delegated judge who will supervise the procedure and one or three judicial commissioners;
- set the deadline for the creditors to present their proofs of claim and the date of the hearing at which those claims will be examined by the delegated judge; and
- decide whether the management of the insolvent company should remain with the debtor or pass to one or three judicial commissioners.
A declaration of the state of insolvency produces certain immediate effects, such as the automatic stay of all legal actions by creditors against the debtor's assets and the freezing of the accrual of interest.
The second phase results in the admission of the insolvent company either to the extraordinary administration procedure or to adjudication in bankruptcy. No later than 30 days from the filing of the judicial commissioner's report, and taking into account the opinion of the Ministry of Economic Development, the specialist court, should the conditions provided by Law No. 270 be met, declares the opening of the procedure. Otherwise, it declares the debtor company bankrupt. Should the company be admitted to the procedure, the stay of actions continues and clawback actions become possible.
The extraordinary commissioners are empowered to manage the company and its assets under the supervision of the Ministry of Economic Development. They act on the basis of a recovery plan prepared by them and authorised by the Ministry.
Any debts incurred in the continuation of the business generally will have priority over any other secured and unsecured claim pursuant to Article 111 of the Bankruptcy Law.
Creditors can file their proofs of claim and have a right to distribution of proceeds.
Should the recovery programme underpinning the transfer of the business be completed within the term set, the specialist court, upon request of the extraordinary commissioners or ex officio, declares the closing down of the business. The extraordinary administration can at any time be converted into bankruptcy upon request by the extraordinary commissioner, or even ex officio, if the procedure cannot positively be continued. At the end of the procedure, the specialist court will declare the conversion of the procedure into bankruptcy when either the sale of the assets has been not performed within the term stipulated in the programme, or the business has not recovered its ability to regularly perform its obligations.
In the wake of the Parmalat case, the Marzano Decree (Law Decree 347/2003) introduced a faster procedure aimed at saving and turning around large insolvent companies to preserve their technical, commercial, productive and employment value. This procedure restructures the company's debts and sells those assets that are not strategic or do not form part of the company's core business.
The procedure is focused on restructuring rather than on the liquidation of the debtor's assets. It is based on the implementation of a two-year recovery plan subject to the minister's approval.
The recovery plan can provide for the satisfaction of creditors' claims through a composition, which must specify any conditions of its implementation and describe any offered guarantees.13
vii Cross-border issues
On 20 May 2015, the European Parliament and the Council enacted EU Regulation No. 848/2015 (the Recast Bankruptcy Regulation), which entered into force on 25 June 2015 and is applicable to insolvency proceedings starting from 26 June 2017, with few exceptions. The new rules also apply to proceedings that provide for the restructuring of a debtor, the 'hybrid proceedings', for example the Italian debt restructuring arrangements pursuant to Article 182 bis of the Bankruptcy Law.
This reform does not change the main framework of cross-border insolvency proceedings as set out under Council Regulation (EC) No. 1346 of 29 May 2000 (the EC Bankruptcy Regulation), but anyway introduces some important changes. The 'centre of the debtor's main interests' pursuant to Article 3 of the EC Bankruptcy Regulation – according to which the court of the Member State within the territory of which the centre of the debtor's main interests is situated is competent to commence the main insolvency proceedings – has been more precisely defined as 'the place where the debtor conducts the administration of its interests on a regular basis and that is therefore ascertainable by third parties'.14
Another important amendment is set forth in Article 4 of the Recast Bankruptcy Regulation, stating that the court before which a request to start insolvency proceedings has been filed shall have to examine ex officio whether it has jurisdiction on the case. Should the court decide to open the proceedings, it shall have to specify in its decision if the proceedings are the main proceedings or secondary proceedings, pursuant to Article 3.
Immediate recognition of foreign bankruptcy judgments and measures are denied by Italian courts (only) if they may produce effects that are contrary to Italian public policy, for example if they do not grant all creditors equal treatment.15
Where the EC Bankruptcy Regulation is not applicable, the Italian Bankruptcy Law applies. Article 9, Paragraph 1 thereof provides that bankruptcy can be declared by the court in the place where the debtor has its main office. To give emphasis to the notion of 'main office', Italian case law does not make reference to the place where the productive activity is usually carried out, but to the management centre of the business (i.e., the place where the business decisions of the company are taken).
Pursuant to Article 9, Paragraph 2, the transfer of the registered office of a company in the year prior to the filing of a petition for bankruptcy is disregarded for the purpose of determining the venue and jurisdiction of the bankruptcy proceedings of the company.
According to Article 9, Paragraph 3, the debtor who has its main office abroad can be declared bankrupt in Italy, even if a declaration of bankruptcy has been rendered abroad. Furthermore, the relocation of the business to a foreign country does not exclude the jurisdiction of Italian courts, if it occurred after the filing of a petition for bankruptcy or the request of the public prosecutor.
II INSOLVENCY METRICS
During the first three months of 2019, we witnessed a downward trend in bankruptcies – the number registered was the smallest in the past 10 years. In general, about 2,823 companies were declared bankrupt, 6.5 per cent fewer than in the first quarter of 2018 and well below the 3,700 recorded in 2016. Many of the companies who went bankrupt during the past year are located in the centre and north-east of Italy (most particularly in the regions of Veneto, Marche and Umbria).
However, the number of pre-bankruptcy procedures has increased (25 per cent more than last year), including the voluntary liquidation of companies in bonis (more than 17,000 companies have been closed by voluntary liquidation, which is 6.2 per cent more than last year).16
III PLENARY INSOLVENCY PROCEEDINGS
The following examples are some of the most significant insolvency procedures that have been opened in recent years. The last three cases demonstrate very clearly the serious difficulties currently faced by real estate companies in Italy.
i Ilva SpA
Ilva SpA is a company engaged in the production, processing and marketing of steel products. It is the biggest steel plant in Italy and one of the largest steel producers in Europe. By decree of the Minister of Economic Development of 21 January 2015, Ilva was admitted to an extraordinary administration procedure. The company was subsequently declared insolvent by judgment of the Court of Milan. Messrs Corrado Carrubba, Piero Gnudi and Enrico Laghi have been appointed as official receivers for the company. By decree issued on 30 June 2017, the assessment of Ilva's credits has been declared final and enforceable by the Court of Milan. The procedure is still ongoing.
ii Alitalia SpA
Alitalia SpA is a company based in Italy and engaged in the aviation sector. As of 29 July 2009, Alitalia is the top airline for domestic flights in Italy. By decree of the Minister of Economic Development of 2 May 2017, Alitalia was admitted to an extraordinary administration procedure provided by Law Decree 347/2003. By judgment of the Court of Civitavecchia dated 11 May 2017, Alitalia was declared insolvent. Messrs Luigi Gubitosi, Stefano Paleari and Enrico Laghi have been appointed as official receivers for the company. The procedure is still ongoing.
iii Grandi Molini Italiani SpA
Grandi Molini Italiani SpA is the biggest producer of soft wheat flour and durum wheat semolina in Italy and one of the biggest in Europe. Through a petition filed on 3 November 2015, the company requested authorisation to enter into a composition with creditors pursuant to Article 161 of the Bankruptcy Law. By decree issued by the Court of Rovigo on 5 November 2015, the company received the court's approval, and Ms Stefania Traniello Gradassi and Messrs Stefano Ambrosini and Carlo Salvagnini were appointed by the court as commissioners. The procedure is still ongoing.
iv Borsalino Giuseppe & Fratello SpA
Borsalino Giuseppe & Fratello SpA is a luxury Italian hat maker, founded in 1857. Through a judgment issued on 14 December 2017, the company was declared bankrupt by the Alessandria Bankruptcy Court. The first hearing for the examination of the creditors' claims was held on 17 April 2018. The procedure is still ongoing.
v Acqua Pia Antica Marcia SpA in liquidation
Acqua Pia Antica Marcia SpA is an important real estate group of companies with headquarters in Rome. The group operates in the airport, construction and tourism sectors and includes the first real estate company founded in Italy. It handles five national airports (Milan Malpensa, Milan Linate, Venice, Bologna and Catania). It also develops residential and commercial centres, with a focus on the reconstruction of the architecture of old disused industrial sites. Finally, it manages several luxury hotels (e.g., Grand Hotel Villa Igiea, Grand Hotel et Des Palmes, San Domenico Palace Hotel, Excelsior Palace Hotel and Excelsior Grand Hotel, in Sicily). By decree issued on 3 July 2013 by the Court of Rome, the company was authorised to enter into a composition with creditors pursuant to Article 161 of the Bankruptcy Law. At the same time, all subsidiaries filed analogous requests and were authorised to start a pre-bankruptcy procedure.
Following approval by the creditors, the pre-bankruptcy composition plan filed by the company was homologated by the Rome Bankruptcy Court on 17 December 2014, which appointed a liquidator to fulfil the approved plan. The procedure is still ongoing.
vi Porta Vittoria SpA
Porta Vittoria SpA was founded in 2005. The company owned and operated the Porta Vittoria project, one of the most important real estate development projects in Italy, covering an area of about 42,000 square metres and including both commercial and residential buildings, offices and one hotel. Through a judgment issued on 29 September 2016 by the Milan Bankruptcy Court, the company, whose debts amounted to about €400 million, was declared bankrupt. The first hearing for the examination of the creditors' claims was held on 20 February 2017. The procedure is still ongoing.
vii Astaldi SpA
Astaldi SpA is part of an international construction group with a leading position in Italy and is one of the top 100 international contractors.
Through a petition filed on 28 September 2018, the company requested authorisation to enter into a composition with creditors pursuant to Articles 161 and 186 bis of the Bankruptcy Law with business continuity. By a decree issued by the Court of Rome on 18 October 2018, the company was granted a deadline to file the necessary documentation to be evaluated by the Court with a view to admission to a pre-bankruptcy procedure (i.e., the financial documents and the proposed plan to be approved by the creditors).
The Court of Rome appointed Messrs Stefano Ambrosini, Vincenzo Ioffredi and Francesco Rocchi as commissioners with the aim of monitoring the company's activities.
Astaldi SpA is waiting to receive the Court's approval of the filed pre-bankruptcy plan.
IV ANCILLARY INSOLVENCY PROCEEDINGS
Ancillary or secondary proceedings may be opened in Italy in the event that the main insolvency proceedings are pending in another EU Member State, subject to the EC Bankruptcy Regulation (see Section I.vii).
At this very early stage we cannot foresee the effects of the Reform, but the expectation is that, once the Reform comes fully into force on 15 August 2020, debt restructuring arrangements and out-of-court restructuring plans will increase, and the number of bankruptcy procedures should decrease.
Moreover, in general, we expect bankruptcy and pre-bankruptcy procedures to decrease, considering that the pre-alert mechanism that will be introduced should allow companies to intervene at the first signs of bankruptcy and thus to prevent insolvency. One of the main underlying purposes of the Reform is in fact to compel the management body of a company to deal promptly with a potential crisis.
1 Gaetano Iorio Fiorelli is an of counsel and Eliana Maria Fruncillo is an associate at Baker McKenzie.
2 Organismo di composizione della crisi d'impresa.
3 Official data updated as at April 2019 are reported by Cerved on https://know.cerved.com/wp-content/uploads/2019/04/OSSERVATORIO-chiusure.pdf. This article points out in particular that the average duration of insolvency procedures has significantly decreased over the years. On this subject, see also Il nuovo diritto delle crisi d'impresa, Alberto Jorio, Giuffré Editore, 2009.
4 As regards the non-reversibility of the state of insolvency see, among others, Il fallimento e le altre procedure concorsuali, Luciano Panzani, UTET, 2012, and Italian Supreme Court, Judgment No. 4455 dated 28 March 2001.
5 For further details, see Diritto fallimentare, Lino Guglielmucci, Giappichelli Editore, 2017, and Il diritto fallimentare e delle procedure concorsuali, Elena Frascaroli Santi, Cedam, 2016.
6 See Trattato delle procedure concorsuali – Vol. I: La Dichiarazione di Fallimento, Lucio Ghia, Carlo Piccininni, Fausto Severini, Utet Giuridica, 2010.
7 For further information on this special type of pre-bankruptcy procedure, see Il concordato con riserva, Edoardo Staunovo-Polacco, Giuffrè Editore, 2016.
8 Secured creditors do not vote, as they have priority over the proceeds of the sale of their security.
9 For further details on tax settlement, see La transazione fiscale, Mario Cardillo, Aracne, 2016.
10 A more in-depth analysis of debt restructuring arrangements may be found in Gli accordi di ristrutturazione dei debiti, Carlo Trentini, Ipsoa, 2012.
11 See footnote 9, above.
12 For more details on this special procedure, see Trattato delle procedure concorsuali – Vol. V: L'amministrazione straordinaria e la liquidazione coatta amministrativa, Lucio Ghia, Carlo Piccininni, Fausto Severini, Utet Giuridica, 2011.
13 See footnote 12.
14 UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation, Glossary, Paragraph 2(c).
15 Italian Supreme Court, Judgment No. 12,031 of 19 December 1990. Italian legal commentators distinguish between 'international public policy' (which refers to the general principles that are universally enforceable, namely the inviolable rights of the individuals) and 'internal public policy' (which includes the ethical, economic, political and social principles peculiar to the Italian legal system). Only the first is relevant with respect to the recognition of proceedings. Article 33 of the Recast Bankruptcy Regulation prevents any Member State from recognising an insolvency proceeding and enforcing a judgment relating to it if they are manifestly contrary to the relevant state's public policy, 'in particular to its fundamental principles or the constitutional rights and liberties of the individual'. It is worth underlining that Article 33 contains a general definition of 'international public policy', which is deemed to be a fundamental principle of any Member State, as well as the constitutional rights and liberties of the individual.
16 Official data are available at https://know.cerved.com/wp-content/uploads/2019/05/OSSERVATORIO-FALLIMENTI-1q-2019.pdf.