After many news stories of recent years in terms of bankruptcy law, the Legislator has again intervened with the delegated law n. 155/2017 (so-called "Rordorf Reform"), mandating the Government to reform the area of businesses in crisis and insolvency.
This is a systematic reform aimed at introducing a single text for businesses in crisis containing a general reorganization of insolvency procedures, crises due to over-indebtedness and the system of privileges and guarantees.
The enabling act is a solution of continuity with respect to the previous text of 1942, intervening at the semantic level changing the normative language used by replacing the term "bankruptcy" with the term "judicial liquidation" (Article 2, letter a).
In the sense of making a broad distinction between financial crisis and economic crisis, referring the former to a situation of insolvency which tends to be resolvable, and the latter, to a situation of management of the firm’s activity which is no longer economic, the nascent discipline must distinguish between the concepts of "state of crisis" and "insolvency", meaning the former as a situation of probable future insolvency and the second, instead, of a declared insolvency (Article 2, letter c).
This should serve as a filter to distinguish the situations of irreversible suffering from those which are potentially reversible, to be able, then, to privilege the treatment of those proposals aimed at overcoming the crisis ensuring business continuity, instead resorting to judicial liquidation only in the case of the lack of a proposal of a suitable alternative solution (Article 2, letter g).
Following this conceptual approach and with the aim of streamlining and speeding up procedures, the main changes include the delegation of power to the Government for the adoption of a single and rapid procedural model for the assessment of the state of crisis and insolvency of the debtor (Article 2, letter d), the introduction of measures to simplify and standardize the rules governing special processes provided for in insolvency proceedings (Article 2, letter h) and the reduction of the duration and costs of procedures, also by adopting measures to make the management bodies responsible (Article 2, letter l).
A further theme in which the new discipline will intervene to bring uniformity and clarity, is that of the jurisprudential contrasts which have their origins in the interpretative furrows of the current law (Article 2 letter m); indeed, it will be the task of the Delegated Legislator to reformulate the provisions that gave rise to the aforementioned conflicts of interpretation and, with a view to ensuring greater uniformity in the jurisprudential guidelines, the specialization of the judges responsible for matters of competition must be ensured (Article 2, letter n), attributing to the specialized Courts' Sections the jurisdiction over bankruptcy proceedings and the causes deriving from them relating to companies under extraordinary administration and groups of companies of significant size (Article 2, letter n., 1) .
Worthy of mention is, the prediction of a procedure of alert and assisted composition of the crisis, whose non-judicial and abstractly confidential nature will allow the revelation of crisis situations early and resolve them at the onset of the economic and financial problems of businesses (Article 4) without burdening the jurisdictional bodies.
The task of managing the alert procedure will be devolved to a special body set up in each Chamber of Commerce, which will intervene at the request of the debtor himself, with the recognition of the same reward instruments both in terms of economic and personal responsibility in the hypothesis in which the procedure is activated promptly (Article 4, letter h) or at the request of the governing bodies of the company in crisis or at the request of qualified public creditors, such as, for example, the social security institutions and the Taxation Authorities (Article 4, letter b).
The procedure provides that in the maximum term of six months, through the assistance of the aforementioned body, the debtor and the creditors reach an agreement, failing which - and in the presence of the state of insolvency – the Public Prosecutor will be notified to promote the judgment aimed at ascertaining the actual level of insolvency (Article 4, letter b).
Without any pretence of exhaustiveness, we point out the provision of specific processes for managing crises and insolvency for the groups of companies (Article 3, letter a), the extension of the procedure of crisis caused by over-indebtedness to the unlimited liability shareholders of the bankrupt company (Article 5, letter d), the reform of the arrangement with creditors, with particular reference to limitations of the agreed liquidators (Article 6, letter a), to the identification of a maximum compensation of the professionals in charge of the process (Article 6, letter c), to assign powers to the court to verify the feasibility of the agreement plan (Article 6, letter e) and to eliminate the creditors' meeting (Article 6 , letter f), as well as the revision of privileges "with the aim of reducing the hypotheses of general and special privilege, with particular regard to privileges of retention, eliminating those no longer current compared to the time in which they were introduced and adjusting the order of legitimate pre-emptive laws in conformity " (art. 10), the introduction of new forms of guarantees of possession (Article 11), even greater guarantees in favour of buyers of properties to be constructed through the obligation of the public deed or authenticated private deed, under penalty of nullity, for the act of not immediately transferring property in order to ensure that the stipulation of the guarantee is under the control of a solicitor, without which the contract becomes invalid (Article 12).
