ITALY Law and Practice Contributed by: Francesco Dialti, Vincenzo Cimmino, Valentina Bombino and Lucrezia Ghezzi, CBA Studio legale e tributario
Pre-Deductible Claims These are statutory claims (such as tax or other gov- ernment claims, or claims for professional services) and claims that arise during or for the purpose of the insolvency procedure. Creditors with pre-deductible claims are paid entirely (or pro rata, if the assets of the insolvent company are not sufficient to pay them all). Preferential Claims These include: • claims with a general or special legal privilege (such as tax claims) over all or some of the assets of the insolvent company; • creditors with a special privilege over a real estate asset rank before creditors with a mortgage over the same asset, while a special privilege over a movable asset ranks after a claim secured by a pledge over the same asset; • the order of priority of privileged claims is set by law; and • secured claims. If privileged or secured creditors are not fully satisfied from the proceeds of sale of the assets, the remaining unpaid portions rank as unsecured claims. Unsecured Creditors If a security interest has not been validly perfected, the creditor will rank as an unsecured creditor. 7.3 Length of Insolvency Process and Recoveries The duration of insolvency processes varies depend- ing on the different factors of each case. 7.4 Rescue or Reorganisation Procedures Other Than Insolvency In 2022, the New Bankruptcy Law came into force with the aim of creating an organic system managing crisis and insolvencies. It replaced the fragmented system established under the previous bankruptcy law (Royal Decree 267/1942). The following is a brief overview of the rescue or reorganisation procedures, other than insolvency ( liq- uidazione giudiziale ), available under the New Bank- ruptcy Law.
The New Bankruptcy Law provides companies with several proceedings to restructure their indebtedness and overcome the crisis or insolvency, among which the most relevant are: • negotiated corporate crisis resolution proceedings ( composizione negoziata della crisi d’impresa ); • the certified recovery plan ( piano attestato di risanamento ); • debt restructuring agreements ( accordo di ristrut- turazione dei debiti ); • simplified composition for the liquidation of assets ( concordato semplificato per la liquidazione del patrimonio ); and • settlement with creditors ( concordato preventivo ). The proceedings range from consensual instruments to arrangements based on creditors՚ majority-vote and may be conducted out of court ( piano attestato di risanamento ), or fully or partially in court. Under these proceedings: • the debtor may apply for an in-court standstill pre- venting creditors from taking enforcement actions (other than in case of piano attestato di risana- mento ); and • payments made and guarantees granted by the debtor during the proceedings and/or in execution of the relevant restructuring plan are exempt from claw-back and certain insolvency-related crimes. The exemption from claw-back makes such instru- ments very attractive for lenders when a debtor is in financial difficulty. 7.5 Risk Areas for Lenders In addition to the consequences described at 7.1 Impact of Insolvency Processes with respect to the suspension of enforcement proceedings, lenders should be aware of the following. Claw-Back Some acts, transactions and security interests may be subject to claw-back actions ( revocatoria ) by the receivership if such acts have been perfected during the so-called suspect period (from six months to one
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