The Italian Supreme Court (judgement No. 14552 of 26 June 2014), ruled that the disclosure of acts in fraud carried out by the debtor causes the admission to concordato preventivo to be revoked according to Article 173 IBL, even in case of approval by the creditors.

The case

According to Legislative Decree. No. 175/2014, in case of defaulting transferee / buyer, the transferor / supplier is entitled to recover the VAT originally paid to the Treasury, under the condition that the transferee / buyer - who has not paid his debt - has entered into a debt restructuring agreement with creditors pursuant to Article 182-bis of the Italian Bankruptcy Law (IBL) or into an out-of-court reorganization plans pursuant to Article 67, third paragraph, letter d) of the Italian Bankruptcy Law (IBL)

The New Provision

On 21 June 2013 Italy issued a new emergency decree (Law Decree No. 69 of 21 June 2013, which entered into force on 22 June – the "2013 Decree") introducing a number of provisions aimed at fostering the economy and attracting foreign investments.¹

Certain provisions of the 2013 Decree amend the Bankruptcy Act² by introducing rules aimed at avoiding abuses and increasing transparency.

The Court of Milan with a decision on 28 May 2014 addressed some heavily debated legal issues: the Bankruptcy Courtmay authorize the debtor to terminate credit facility agreements when the debtor submitted a pre-filing for concordato preventivo (known as “concordato con riserva”)?

The Case

On July 30, 2010 the Italian Parliament passed Law 122/20101 which, among others, improved the restructuring proceedings governed by the Italian Bankruptcy Law2 (“IBL”).

The improvements operate on two fronts of restructuring deals which had proven to be still unclear (and thus risky) despite the recent reform:

Italian bankruptcy law — Royal Decree No. 267 of 16 March 1942 — (the Bankruptcy Law) underwent a substantial reform between 2005 and 20091, mainly aimed at introducing (i) a more efficient regulation of the pre-bankruptcy agreement procedure (concordato preventivo)2 and (ii) new pre-bankruptcy schemes of arrangements, in the form of the out-of-court debt restructuring plan (piano attestato di risanamento)3 and the debt restructuring agreement (accordo di ristrutturazione dei debiti)4.

Since 2005, pushed by the insolvencies and rescues of large Italian corporations such as Parmalat, Cirio and Alitalia, the Italian legislature has introduced effective tools aimed at preserving the debtor’s assets and ensuring the successful reorganisation of a debtor’s business to the benefit of all the parties involved.

During the last few years, Italian bankruptcy law has been shifting from a traditional "procedural/judicial" model, based on the central role of courts called upon to safeguard the "public interest" involved in bankruptcy by actively directing the procedure and making the most important decisions, to a model that recognizes the private interests of creditors. Under the new paradigm, creditors are conferred with decisional powers, while courts maintain a principally supervisory role.

Overview of Insolvency Rules and Restructuring Procedures Pursuant to Italian Bankruptcy Law