New bankruptcy reform alert procedure
The alert procedure is aimed at highlighting the crisis, so that a resolution is implemented before it ends in insolvency.
The proxy law 155/2017, which contains the guidelines of the reform, provides for a more precise definition of a state of crisis than that currently contained in art. 160, co. 3, LF, for which ” by state of crisis also means the state of insolvency “.
The Reform also provides for the art. 4, the establishment, at each Commerce Humter, of a special body for the settlement of the corporate crisis, as well as an “internal” alert system, under which the detection and reporting of the symptoms of corporate malaise is entrusted to the organs internal control bodies (board of auditors and auditors), and an “external” alert system in which the detection and reporting of symptoms of corporate malaise is entrusted to qualified public creditors.
To facilitate a timely resolution, the Reform also includes the introduction of reward measures for the entrepreneur who promptly uses the alert procedure.
1. The state of crisis
In Article. 2 (Title I, Chapter I) the state of crisis is defined as: “ the state of economic and financial difficulty that makes the debtor’s insolvency probable, and that for companies it is manifested as the inadequacy of prospective cash flows regularly meet the planned obligations ”.
In Article. 13, the Code in question also specifies that “ 1. Income imbalances of an income, equity or financial nature, related to the specific characteristics of the company and the entrepreneurial activity carried out by the debtor, taking into account the date of establishment constitute the indicators of crisis. and the beginning of the activity, which can be detected through specific indexes that provide evidence of the sustainability of the debts for at least the next six months and the prospects for business continuity for the current year or, when the residual duration of the year at the time of the valuation is less than six months, for the next six months. For these purposes, the relationship between cash flow and assets, between shareholders’ equity and liabilities, and financial charges and revenues are significant indicators. They are also indicators of repeated crises and significant delays in payments, also based on the provisions of article 24. 2. The Council, taking into account the best national and international practices, elaborates at least every three years, with reference to each type of economic activity according to the ISTAT classifications, the indices referred to in paragraph 1 which, assessed as a unit, reasonably assume the existence of a state of crisis for the company. The council draws up specific indexes with reference to the innovative start-ups referred to in the decree-law 18 October 2012, n.179, converted by the law 17 December 2012, n.221, to the innovative SMEs referred to in decree-law 24 January 2015, n. 3, converted, with amendments, by the law of 24 March 2015, n. 33, to companies in liquidation, to companies established for less than two years. The indexes developed are approved by decree of the Ministry of Economic Development. 3. The company that does not consider the indexes prepared in accordance with paragraph 2 to be adequate, in consideration of its characteristics, specifies the reasons in the explanatory notes to the financial statements and indicates, in the same note, the indices suitable for reasonably assuming the existence of his state of crisis. An independent professional certifies the adequacy of these indices in relation to the specific nature of the company. The certificate is attached to the notes to the financial statements and is an integral part of it. The declaration, attested in accordance with the second period, produces effects for the following year ”.
2. The obligation to report a state of crisis
In the following art. 12 (Title II, Chapter I), the Code in question regulates the obligation to report to the corporate supervisory bodies and qualified public creditors, who are bound to report to the directors, in writing and via pec the existence of founded indications of the crisis, assigning to the administrative body a term (not exceeding thirty days) within which to report on the solutions identified and initiatives undertaken.
In the event of failure or inadequate response, or failure to adopt measures deemed necessary in the subsequent 60 days, the same article 17 of the Code in question provides for the obligation of the supervisory bodies to immediately inform the body of composition of the crisis, also notwithstanding the obligation of secrecy inherent to the office pursuant to art. 2407 cc. The timely notification to the body of the crisis is, moreover, expressly envisaged as a cause of exemption from social responsibility for the consequences detrimental to the omissions put in place by the administrative body in contrast with the prescriptions received, which are not the direct consequence of decisions taken before reporting.
3. The reward measures
Of great importance, also the provision of art. 25 of the Code in question which provides for both personal and patrimonial reward measures for the entrepreneur who promptly makes use of the assisted settlement process of the crisis.
The article states that: ” The entrepreneur who has submitted to the OCRI a timely request pursuant to Article 24 and who has followed the instructions in good faith, or has promptly proposed, pursuant to the same article, request for access to one of the crisis or insolvency regulatory procedures referred to in this code which has not been declared inadmissible, has Cratchit family with the following benefits, which can be combined together:
a) during the assisted settlement of the crisis and until its conclusion the interests which accrue on the company’s tax debts are reduced to legal measure;
b) the tax penalties for which the application is to be applied to a reduced extent in the event of payment within a specified time limit from the communication from the office which issues it are reduced to the minimum extent if the deadline for payment expires after the presentation of the request of article 19, paragraph 1, or of the request for access to a procedure for regulating the crisis or insolvency;
c) the penalties and interest on tax debts subject to the assisted settlement of the crisis are reduced by half in the eventual procedure for regulating the crisis or insolvency subsequently opened;
d) the extension of the term set by the judge pursuant to article 44 for the filing of the proposed arrangement with creditors or the debt restructuring agreement is equal to twice that which ordinarily the judge may grant, if the composition body of the crisis did not report insolvency to the public prosecutor pursuant to Article 22;
e) the proposed composition with creditors concurrent with the one submitted by him is not admissible if the appointed professional certifies that the debtor’s proposal ensures the satisfaction of unsecured creditors in an amount not less than 20% of the total amount of credits.
2. The timely presentation of the request to the body of assisted settlement of the corporate crisis or of the request for access to one of the crisis or insolvency regulation procedures referred to in this code, when it is opened, on the debtor’s initiative, a judicial liquidation procedure or an arrangement with creditors or a debt restructuring agreement is approved, excludes, limited to the conduct carried out before the opening of the procedure, the punishment of the offenses referred to in articles 322, 323, 325, 328, 329, 330, 331, 333 and 341, paragraph 2, letters a) and b), provided that the damage caused is of special tenuousness. The penalty is reduced to half when, outside the cases of special tenuousness of the damage, at the date of opening of the crisis or insolvency regulation procedure, the value of the asset inventoried or offered to creditors exceeds one fifth of the amount of debts “.