The Italian Senate finally approved, on 11.10.2017, an Enabling Act on the reform of the rules governing corporate insolvency and crisis, which will be implemented by the Government during the following months. Among the introduced innovations, the brand-new procedure of “corporate crisis alert and assisted conciliation” is particularly significant as it is a confidential, non-judicial procedure aimed to prevent the development of a corporate crisis and to favor negotiations among debtors and creditors.
The new procedure will be governed by a panel of experts constituted in every local Chamber of Commerce, which shall be composed of at least three members to be chosen among the ones included in the appropriate register drawn up by the Minister of Justice.
The debtor enterprise may directly apply to the assisted conciliation panel. In such case, the panel shall convene, in confidential and reserved manner, with the same debtor as well as the components of the corporate supervisory body (where applicable) in order to find the appropriate measures to solve the corporate crisis, also to verify the existing economic, financial, assets/liabilities situation of the company.
Moreover, the company’s supervisor body as well as accountants and auditing companies shall report to the company’s administrative body the existence of serious evidences of corporate crisis, and directly inform the assisted conciliation panel when the administrative body fails to perform any action in this respect.
The Italian Revenue Agency, social security institutions and tax collectors shall also report to the assisted conciliation panel any serious default of the enterprise.
A favourable policy is foreseen for entrepreneurs who apply, in timely fashion, to the assisted conciliation panel for the corporate crisis to be solved, or apply for a debt restructuring agreement to be approved, or alternatively bring an action for a judicial liquidation procedure. Similar favourable policies are foreseen for the company’s supervisor body which promptly report the existence of a crisis.
The procedure before the assisted conciliation panel shall not last more than six months, and invariably requires the analysis of the existing economic, financial, assets/liabilities situation of the company. In the course of the proceeding, the debtor may apply to the Judge for the adoption of temporary protective measures, which appears necessary in order to conclude the negotiations. These measures may be revoked in case of fraud of the creditors, or when the panel ascertains the failure to reach a mutually agreed solution for the crisis or, lastly, when no significant actions have been performed to enforce the measures necessary to solve the corporate crisis.
If the procedure is successfully concluded, the panel will certify that the entrepreneur has enforced the appropriate measures to solve the crisis. In the contrary case, i.e. where the panel fails to identify appropriate actions to overcome the current crisis situation, it will certify the state of insolvency, and report it to the Prosecutor of the local Tribunal territorially competent for the place of business, which promptly verifies the corporate insolvency.
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