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:
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 €
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: