Italy: Newsletter Abbatescianni November 2017

Last Updated: 26 January 2018
Article by Rosa Del Sindaco


Enabling Act for reforming the legal framework of insolvency and company crisis

With Senate's resolution of 11 October 2017, the Parliament has formally given mandate to the Government for a comprehensive reform on the subjects of bankruptcy and company crisis, scheduling the issuance of one or more legislative decrees throughout the next 12 months.

First among the guidelines provided to the Government for the reshaping and re-organisation of the subject is the mandate to proceed to a lexical revision implying the phasing out of the term "bakruptcy" (fallimento) in favour of "judicial liquidation" (liquidazione giudiziale), as well as the adoption of a clear-cut distinction between the definitions insolvency and company crisis.

Second to follow is the unification of the iter for acceding to the procedures applicable to the company crisis, which will differentiate only at a later stage.

Among the objectives that the Government will have to pursue, there is also the simplification of the procedure, which will take place through the adoption of a unique procedural model, substantially shaped on that already employed for bankruptcy declarations, with the jurisdiction belonging to the court of the place where the debtor entertains his key interests.

The enabling act also provides for a deeper specialisation of the judiciary that will be involved in company crisis procedures, as well as the creation of a register for professionals to be entrusted with managing and supervisory tasks in the context of bankruptcy procedures, who will have to comply with specific requirements concerning their integrity, independence and professional experience to be eligible.

The enabling act dedicates particular attention to company groups, underlining the necessity to introduce provisions that facilitate the unitary management of the crisis.

What points in the direction of a different approach towards the management of insolvency and company crises is also the introduction of benefits for those who employ these mechanisms at an early stage of the crisis.

To this end, the act provides for the creation of a body that will support the debtor in the attempt to overcome the crisis, by involving the creditors in the outline of a recovery plan, and which may as well involve qualified public creditors and the public prosecutor in case no solution is at hand.

Supervisory functions will be borne by the competent company bodies, as well as by the qualified creditors, who may end up losing their privilege in the event of inaction.

The enabling act also encompasses such institutes as the pre-bankruptcy (concordato preventivo), restructuring agreements and certified recovery plans, which in the new formulation appear to be more oriented towards business continuity: liquidation is less and less incentivised and is left as a residual option.

Key changes involve, in particular, pre-bankruptcy proceedings, reserving the admissibility to liquidation procedures for scenarios where at least the payment of 20% of unsecured credits is ensured.
The fees of the professionals appointed by the debtor will be tied to the presence of outstanding assets in the company that requires the adoption of the procedure, and the associated professional credits will benefit from anticipated deduction only in case the procedure is approved by the court.

Another relevant novelty regarding pre-bankruptcy procedures is that of the elimination of the meeting of the creditors, in favour of an on-line voting system, along with the introduction of criteria for sorting out of conflicts interest ("one head-one vote" approach in case one creditor is the sole holder of the majority of the credits admitted in the procedure).

The role of the receiver is also reshaped as a consequence of the reform.

In particular, the receiver is allowed to have access to the databases of the public administration and to promote or carry on with judicial actions that are typically reserved to the partners or to the creditors of the company (for instance: liability actions against partners who have intentionally deliberated or authorised the enactment of decisions that are detrimental to the company, and liability actions against companies or entities that exercise the direction or control of the company).


Court of Rome, decision of 22 September 2016 – Attributions to the partner of a limited liability company (Srl) in convening the quota holders' meeting

The Court of Rome confirms the full legitimacy of the convening of the quota holders' meeting by the partner who is holder of at least one third of the equity capital of the company of a limited liability company (srl), even in case the by-laws attribute such function exclusively to the executive board.

The decision is grounded in the self-integration of art. 2479 of the Civil Code – and not in the application by analogy of art. 2349 of the Civil Code – which provides that, in case of inaction of the bodies in charge, the Court shall, upon prior hearing of the executive and supervisory bodies, and after the unjustified refusal to proceed in that sense, convene the meeting by decree, indicating the person who will preside it.

Art. 2479 of the Civil Code provides that the partners shall rule on subjects reserved to their competence in light of the deed of incorporation, as well as on those topics raised by one or more directors, or partners representing at least one third of the equity capital of the company.

This provision, by providing that the partners who hold at least one third of the equity capital of the company can ask for an topic to be directly discussed in the meeting – and not only that the partners deliberate on it – automatically implies that these partners can directly convene a meeting for the discussion of that same topic.

However, such prerogative is not totally free from constraints: the legitimation for such convening upon a partner who holds at least one third of the equity capital of the company exists, indeed, only in case of inaction of the executive board. Hence, the prerogative attributed to the partner is not unconditional, for it finds its justification in the inaction of the directors.

Still according to the Court, the principles embodies in art. 2479 of the Civil Code must be regarded as a mandatory warranty provided by the law as a form of protection for qualified minority partners: for this reason, the ability to convene the meeting by those who represent at least one third of the equity capital of the company survives even in case the by-laws demand that function to the executive board only.

Civil Court of Cassation, First Section, Order of 25 September 2017 no. 22280 – Sale of business and publicity duties

With this decision, the Court of Cassation has ruled on the forms of publicity that should be employed with regard to the sale of business, in particular when the operation encompasses real estate property.

It is on this particular theme that the Court has pointed out how the registration of the deed of sale in the trade registry, in light of art. 2556 of the Civil Code, shall be regarded as having a merely declaratory value, being aimed at rendering the sale opposable to third parties.

Such registration, indeed, does not resolve any conflict that may arise with regard to the ownership of the real estate assets encompassed in the business.

This kind of conflict can be resolved only on the basis of the application of the norm set forth in art. 2644 of the Civil Code, which expresses the principle by which the earliest registration of a deed of sale in the real estate registry shall be regarded as prevalent.

It unavoidably follows that, in the event of sale of a business encompassing real estate property, it is necessary to comply with the formalities that the law imposes with regard to the publicity of the sale of each single asset. Hence, the deed of sale of the real estate should be registered in the trade registry, and also in the real estate registry, for the purposes of ensuring that such deed is prevalent to any other deed that may be registered at a later stage with regard to the same property

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions