ITALY Trends and Developments Contributed by: Cristian Fischetti, LEXIA
management, reports to the court in proceedings for the confirmation of protective measures, and drafts a final report to be uploaded to the dedicated digital platform. Furthermore, the Expert has control over the outcome of the CNC. In particular, if the Expert considers the restructuring process unfeasible, he/she shall notify this circumstance to the company. If the company does not align the plan with the Expert’s instructions, the Expert may close the CNC on the digital platform. 6. Negotiations with creditors In practice, negotiations are typically organised by clusters of creditors, grouped according to their nature and strategic importance – such as financial institutions, the Tax Authority ( Agenzia delle Entrate ), social security authorities (INPS and INAIL), and stra - tegic or non-strategic suppliers – further allowing for more targeted and effective discussions. Unlike in insolvency procedures, the par condicio creditorum rule does not apply, enabling the debtor to present differentiated proposals depending on each creditor’s category, importance, and contribution to business continuity. Creditors must nevertheless be satisfied in accordance with the ranking of their privileges: secured creditors ( privilegiati ) enjoy priority treat - ment, while unsecured creditors ( chirografari ) may be subject to greater reductions, generally through dis - counted pay-off. Social security authorities must be paid in full, while financial creditors are often repaid through rescheduled plans, and the Tax Authority may enter into tax settlements ( transazioni fiscali ) under Article 23, Paragraph 2- bis , CCII, allowing for negoti - ated agreements that ensure a reasonable recovery of public claims in line with the company’s sustainability prospects. Finally, strategic suppliers are generally granted more favourable conditions compared with non-strategic ones, given their essential role in main - taining operational continuity. 7. Protective and precautionary measures As mentioned above, pursuant to Articles 18 et seq CCII, the debtor may request protective and precau - tionary measures aimed at safeguarding the compa - ny’s assets for a defined period while the negotiated settlement is ongoing, further enhancing the CNC’s effectiveness as a preventive and co-operative tool.
Protective measures ( misure protettive ) take immedi - ate effect from the date on which the Expert’s accept - ance is published in the Register of Companies (if they are requested by the debtor), but must be confirmed by the competent court upon an application to be filed to the court by the debtor within one day from the acceptance by the Expert and the publication of the CNC in the Chamber of Commerce. Conversely, precautionary measures ( misure cautelari ) require the appointed judge to first assess the presence of fumus boni iuris (ie, likelihood of success on the merits) and periculum in mora (ie, danger in delay), since – unlike protective measures, which may be requested erga omnes, ie, towards all the third parties – they have a different purpose and are specifically addressed to certain identified creditors. The assessment of the above-mentioned fumus boni iuris requirement differs from that used for ordinary applicable precautionary measures pursuant to Article 700 of the Italian Civil Procedure Code, in that the fumus boni iuris lies in the objective condition entitling the debtor to access the CNC pathway and in the existence of a concrete and not manifestly unrealistic prospect of business recovery, based on the informa - tion available and the Expert’s preliminary findings. On the other hand, periculum in mora concerns the risk that the absence of precautionary measures could jeopardise the progress or successful outcome of the negotiations. Case law requires the court to ensure that genuine negotiations are taking place in good faith, that the measures are instrumental to their con - tinuation, and that they remain proportionate to the potential prejudice caused to creditors. Protective measures may be granted for a duration of 30 to 120 days, which may be extended once for an additional 120 days. Nevertheless, this temporal framework creates a potential gap in protection, as the maximum duration of protective measures (240 days) does not fully align with the possible overall length of the mandate of the Expert, equivalent to 180 days and extendable up to a maximum of 360 days. As a result, the debtor may find itself temporarily unprotected while the CNC is still ongoing. However, according to the most recent case law, precautionary measures may be granted even after the expiry date of
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