The Italian Government started the legislative process for a comprehensive restatement of the whole set of rules of insolvency procedures, with specific innovative addresses regarding (to mention only the most important) the concordato preventivo procedure, venue rules, an out-of-court mediation alert process to timely address a risk of insolvency, new forms of security and a streamlined se
Il Governo prevede una riformulazione complessiva ed organica della disciplina delle procedure di insolvenza esistenti, sulla linea dell‘evoluzione più recente, con precisi indirizzi innovativi – tra i più rilevanti – in tema di concordato preventivo di gruppo e liquidatorio, concentrazione della competenza dei tribunali, composizione assistita della crisi, riordino dei privilegi e nuove forme di garanzia
Premessa
Two recent judgements deal with the issue in two different cases: the Court of Santa Maria Capua Vetere(17 February 2016) allows a partial payment of VAT, contrary to precedents of the Supreme Court and ofthe Constitutional Court, while the Court of Appeals of Bologna (24 December 2015) confirms that theVAT refund claim’s satisfaction depends on the value of the related assets
The case
The Supreme Court confirms in the recent decision No. 2538 of 9 February 2016 that the rules regardingthe effects of termination of a pending leasing contract, by choice of the receiver, cannot be applied tothe different case of termination for breach which has already occurred
The case
The Court of Milan (19 February 2016) adopts a restrictive approach and rules out that the special rulesprovided for concordato “preserving the business” (“concordato con continuità aziendale”) can applywhere the plan includes a lease of business arrangement
The case
“It is possible for the by-‐law to provide that the equity capital, which is mentioned by article 2437-‐ter, second paragraph, of the Civil Code for the purpose of liquidation of shares in case of withdrawal (but also, in case of mortis causa pre-‐emption right, because of the statement of the article 2355-‐bis, third paragraph of the Civil Code) is assessed pursuant to the criterion which consider the use of assets on the going concern perspective”
The Court of Cassation (19 February 2016, No. 3324) ruled that unauthorized payment of pre-‐petitionclaims mandate a stop of the concordato procedure according to Art. 173 of the Italian Bankruptcy Lawonly if a prejudice follows for the creditors
The case
The Court of Forlì (3 February 2016) allowed a competitive bid process to select the purchaser of abusiness unit during the phase following a concordato “pre-‐filing”
The case
With the decision of 16 September 2015, No. 18131, the Court of Cassation settled a long-standing debate, ruling that the receiver can not terminate an agreement to sell real estate property, entered into by the company which is later declared bankrupt, if the purchaser has registered with the Land Registry, before bankruptcy, its claim to the Court to be transferred title to the property.
The immediate application of the new section no. 120 TUB and the scope of its anatocism prohibition is the centre of a case-law dispute which originated from a series of inhibitory proceedings promoted by a consumer association in order to make ascertain the unlawful capitalization practiced by Banks of the passive interests in bank accounts. Now that said interim proceedings has been defined a first summary can be drawn.
Two main interpretative options so far emerged: