Bankruptcy and insolvency reform act

Within the end of the current month, the Council of Ministers will have to adopte the Legislative Decree to develop the Code of the economic crisis and the insolvency, which will make up of 390 articles.

The Decree will be a result of the elaboration of the project of the reform on bankruptcy proceedings initiated by the Failure committee Rordorf that acts directly on the insolvency proceedings (and therefore on the Bankruptcy Law, R.D. n. 267 of the 1942) and on the discipline of the composition of the indebtedness crisis (and therefore on the Law 3 of the 2012).

One of the key points of the reform is represented by ”warning systems”. In particular, the draft of the Decree circumscribes the role of the qualified creditors, which are forced to signal the situations of greater exposure of the company. The thresholds have been increased: about to Tax Authorities the monitoring has been circumscribed only to the VAT, calibrating the threshold in relation to the dimension of the enterprise and its business volume; for INPS, the benchmark is a delay of over 6 months in the payment of contributions with a threshold of € 50,000; for the Collection Agent, the default is relevant when the credits submitted for collection and overdue for more than 90 days exceeds the threshold of € 500.000,00  for the self-employed entrepreneur and the threshold of 1 million for the companies.

The  “warning systems” bet on the internal control. The Decree provides for the commitment to adopt auditors for the SRL that exceed for two consecutive years one of the following limits: 2 million euro of assets; 2 million euros in revenues; 10 employees employed during the financial year. At the same time, the rules that will set up the directors’ duty to provide an appropriate system in the company to control economic and financial situation and the statutory auditors’ duty to verify the adequacy of such systems shall enter into force. It will entrust to the National Council of Certified Accountants the elaboration of the crisis ratios. On the other hand, companies will be able to challenge this ratios, reporting in their financial statements the reasons for deviation from the latter.

The reform also rationalizes the institute of the arrangement with creditors, with particular attention to the employees in case of  indirect going concern basis or mixed arrangement. As a matter of fact in case of going concern arrangement (privileged form than the liquidation one aimed at the best satisfaction of creditors) with indirect going concern basis (in other words, there are another entrepreneur with a rent agreement followed by a sale’s contract of business) the proposal is only allowable if the plan will provide the keep of 30% of the labor force of the company for at least two years. It is kept the commitment (contrary to provision proposed by the Rordorf Commission) to draw up the expert opinion of independent advisor attesting the veracity of the data and the feasibility of the plan.

New criteria to limit the preferential status of professional credit will be also introduced. With the reform the letter cannot exceed 75% of the total amounts, in order to not compromise the possibility of distribution  of the realized assets.

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