Bankruptcy Law in Italy | Dimarco & Partners 

Our Team of Lawyers in Italy is specialized in assisting foreign companies in the Bankruptcy procedures. Our legal services can be provided to lodge a claim of insolvency against a company that is not respecting its duties or to ask a judgement of Bankruptcy or to companies that are creditors of the Bankrupt subject and they want to enter in the procedure to satisfy their credits (insinuazione al passivo).
According to the italian law, after the sentence of Bankruptcy, the debtor cannot manage and administrate the company and all these specific powers are held by the Bankruptcy trustee. There are some further juridical consequences for the debtor:

• He cannot dispose of his properties;
• The dispositions acts, payments or other contracts performed by the debtor declared bankrupted, are not effective towards the creditors;
• A specific remedy, called "azione revocatoria ordinaria" (art 66 BL) can be adopted by the trustee to neutralize the effects of dispositions, made by the debtor, that are supposed to be dangerous or lesive for the other creditors.

The are some specific rules for the creditors to satisfy their claim, to ensure the “par-condicio creditorum” and the efficiency of the bankruptcy procedure. In particular the art. 51 “BL” states that individual claims and enforcement actions promoted by creditors to satisfy credits arose after the bankruptcy declaration are forbidden.

• DECLARATION OF INSOLVENCY AND REQUIREMENTS:

according to the article 5 “BL”, if a company is not able to satisfy its creditors due to a pemanent state of crisis, one of the creditors or the legal representant of the company itself, or the public accusator, if the insolvency is declared in a criminal court, can require the beginning of the bankruptcy procedure. This procedure applies to commercial Companies.
The state of insolvency is also know as the objective criterion of the procedure. It’s quite hard to demonstrate the situation of insolvency utilizing the objective criterion, so the jurisprudence eleborated some symptomatic elements to presume it (so called “exterior elements” ) such as the absence of profit during the last years of activity, escape of the director, withdrawal of bank’s credit line, fraud, closing of the company.
For the Bankrupcy declaration it is also necessary the contemporary presence of a further element called “subjective criterion” ex art. 1 “BL”.
The debtor can avoid to be declared bankrupt if he demonstrates the presence of all the three conditions provided by the BL:
- First condition: The amount of expired and unpaid debt is lower than 500.000 €. It’s important to notice that according to the italian Costitutional Court, it is not possible to require the bankruptcy for a debt which amount is lower than 30.000 €
-  Second Condition: The total revenues of the Company, in the last three years, is lower than 200.000 €
-  Third Condition: The net capital plus total activity (as shown in the balance) is lower than 300.000 €

• ORGANS OF THE PROCEDURE:

1. The Judge
2. The trustee of the Bankruptcy
3. The Creditors commitee.

The competent Court is the one where the company is seated according to art 9 of the BL); The first duty of the Court is to verify the presence of the subjective and objective criteria. Once their presence is verified, the Court declares the company bankrupt through a sentence that is effective from the day of its publication. Against this sentence, the debtor or a third party who has interests in the procedure (usually a subject that can be damaged by the declaration of bankruptcy) can lodge a claim called “reclamo” within 30 days from the pubblication of the sentence (art 18 BL). This term is imperative. In the same deed in which the bankrupcy is declared, the Court nominates the trustee and the deputed judge of the procedure.

• INVENTORY OF THE ASSETS: The trustee compile an inventory (art 87) of the assets belonging to the Company. Then research the creditors and third parties which have rights or credits toward the company and invite them to ask for inclusion (procedure called ‘Insinuazione’ art 93) in the creditors list. The creditors have to demonstrate their rights with documents. There’s a time limit for creditors to ask for inclusion. If the request of the creditors is not received within the term of one year after the deputed judge’s decree which estabilish the situation of debt (‘stato passivo’) was declared executory ( art 96- 97 BL) , it can’t be considered valid (art 92 of the Bankruptcy Law).
  
• APPROVING THE DEBT SITUATION: There is a creditors meeting, in which the debt situation of the company is analyzed and the creditors's claims are admitted by the deputed judge, who decide on the lists of creditors provided by the Trustee of the Bankrupcy. A new list of which creditors can be admitted to the bankrupt procedure is made and this document is made executive by a deputed judge’s decree (art. 95-96 Bankruptcy Law).
  
• LIQUIDATION PROGRAM: A document called ‘Liquidation program’ (art 104 ter) has to be made to allow the selling of company’s assets and real estates and to share the amount between the creditors admitted. The articles from 110 to 117 of the Bankruptcy Law descibes how to share the amounts, coming from the selling of the company’s assets, between creditors (procedure of selling is described from the art 105 to 109 of the Bankruptcy Law).
• RIPARTITION OF THE ASSETS BETWEEN CREDITORS: After the procedure of liquidation has terminated, the trustee of the Bankruptcy compile a conclusive document and there is the final distribution of the active of the company (art 116-117).

According to the articles 111 and following of the Italian’s Bankaruptcy law contemplates different kinds of credits:
Crediti Prededucibili: credits that can be satisfied before the conclusion of the procedure and have the maximum priority. This credits are those provided by law, in particular concerning credits rose during or in consequences of the bankrupts procedure, without contestation (art 111 comma 2 of the bankruptcy law). For example, in this class of credits there is the salary of the Trustee Bankruptcy.
Credits ammitted with privilege on goods sold during the procedure: In this case, the creditor can boast a privilege on a specific capital or real estate assets of the company. There are different types of guarantees by the italian civil law. The most important and spread are “ pegno”, which is a real guarantee for capital assets the and ‘Ipoteca’,which is a real guarantee on a real estate property or capital assets whose property is declared in specific registry (for example the property of a car). When the good the privilege is refferred to is sold, the privileged creditor can satisfy on this amount before the others
Credits ‘Chirografari’: The creditor hasn’t got any specific privilege or right on the goods, his satisfaction is related to the amount remaing after the others class of creditors have been satisfied, referring to the percentage of the credits admitted to the Bankrupts procedure.
There is also a specific order for the creditors to be satisfied form the bankruptcy procedure:

1. Creditors with ‘Crediti Prededucibili’
2. Creditors admited with privilege on the goods sold
3. Creditors with ‘Crediti Chirografari’ basing of the % of their credits admitted to the procedure

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