La notte prima degli esami

Concordato preventivo: the new requirements for admission to the procedure.

[:it]The debtor may now limit himself to filing the application containing the mere insolvency petition, reserving the right to submit the proposal, the arrangement plan and the necessary documents after the filing.

As is well known, the government on 7 August 2012 enacted into law the so-called "Development Decree".
 Several novelties have been introduced, but in any case, this short article will analyse a single legislative change in the area of fallimentarand is of particular interest. Indeed, the reform has changed the requirements for admission to the arrangement procedure. Specifically, the debtor may now limit himself to filing the appeal containing the mere insolvency petition, reserving the right to submit the proposal, the arrangement plan and the necessary documents after the filing of the appeal. The term for such filing is fixed by the court and is between 60 and 120 days. It is also recalled that this deadline can be extended, but by no more than 60 days.

Concerning the effects of filing an appeal, please note that following its publication in the commercial register and until the decree of approval of the composition agreement becomes final, creditors may not commence or continue any enforcement or precautionary enforcement of the debtor's assets, under penalty of nullity. Moreover, if judicial mortgages have been registered in the 90 days preceding the publication of the appeal, they are ineffective against creditors prior to the arrangement. In practice it is sufficient to file an application for admission to the arrangement procedure with the competent court in order to produce the effects under Article 168 of the F.L., i.e. the blocking of enforcement actions. The business plan, on the other hand, can be presented in the following months.

This reform was put in place in order to protect companies in crisis, given the difficult economic situation faced by many companies. As a result of this new legislation, it will be, overcome the use of the technique employed by the concordat companies in order to shield the debtor's assets, i.e. that to establish a destination vicolo on the assets pursuant to Article 2645 ter of the Civil Code, in favour of the creditors of the arrangement, during the period necessary to prepare the plan and file the appeal.

Finally, it should be noted that this technique had recently been made more uncertain, especially following a ruling of 13.3.2012 by the Court of Verona, in which it declared that "the plan of composition cannot be considered feasible where the debtor, prior to filing the application, has established a restriction on its immovable property pursuant to Article 2645-ter of the Civil Code for the declared purpose of avoiding that the disorderly seizure of the assets of the company in crisis may result in a dispersion of value to the detriment of the creditors and prevent an equitable distribution of the effects of the insolvency".

 

 

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