Introduction
The agreement on the restructuring of debts is based on Article 57 of Legislative Decree 14/2019, within the provision we find 4 paragraphs that outline the connotations of the institution as follows: the first paragraph identifies the person who can avail of the restructuring of debts in the figure of the entrepreneur, even non-commercial. The second paragraph explains the ways in which it is possible to carry out a restructuring. In the third paragraph instead, the timelines are made clear that are differentiated according to the type of credits and if they have expired at the time of execution or if they still have to expire and the subjects that it must satisfy. Finally, further details on the implementation of the plan are specified in the fourth subparagraph, in particular, allowing the debtor to obtain funding after the application for type approval. The exercise of the legislative provision is functional to the understanding of the ratio behind the institution: the debt restructuring agreement is a means by which the company in crisis seeks to reduce the debt exposure and hopefully arrive at a stable financial situation that allows the consolidation of the asset. The process itself is articulated in various stages but finds its culmination in the type approval of the court for which access to the court is necessary which is governed by the unitary procedure of access provided for by the Code of Business Crisis and Solvency (CIC).
More recently, the legislator introduced, with Legislative Decree 83/2022, the regulatory definition of the instruments for regulating the crisis with which the legislator considered it appropriate to provide a definition. By the term "crisis regulation instruments" it refers to measures, agreements and procedures aimed at the consolidation of the enterprise through the modification of the composition, state or structure of its assets and liabilities or capital, or aimed at the liquidation of assets or assets that, at the request of the debtor, can be preceded by the negotiated composition of the crisis.
Finally, it is appropriate to distinguish between the restructuring agreement and the restructuring of consumer debts, the terminology used by the Code of the crisis of enterprise can be confused as the word restructuring is used in both cases, but in these cases there are still substantial differences because the agreements on debt restructuring concern the entrepreneur and require an agreement with creditors which must represent a certain percentage of the total amount of claims, given that this is a negotiating act. In the case of the restructuring of the principal consumer's debts, the consumer is the main actor and neither the agreement nor the consent of creditors (the latter have the right to object) is required but the need for a type approval by the court remains.
Legislative profile of the Debt Restructuring Agreement
The debt restructuring agreement, as stated above, is a means of recovery to which the company in crisis can resort to reduce the debt exposure. It must be formed and reached with a number of creditors that alternatively represent at least 60% of the claims (in this case the agreement is called the ordinary agreement), 30% (this case is called the preferential agreement) or ultimately must represent at least 75% of the homogeneous claims belonging to the same category (the extended agreement).
The above agreements can also be proposed and completed by the non-commercial entrepreneur; therefore, the institute does not have the exclusive character that would otherwise have been distinguished if it had been exclusively reserved for the commercial entrepreneur. It is therefore possible to re-establish the extensibility of the possibility of recourse to the institute by taking up the first paragraph of Article 57 of the Italian Law. 14/2019, a wide reading of the latter opens the agreements to the entrepreneurs who carry out, even for non-profit purposes, a commercial, craft or agricultural activity, operating as a natural, legal or other collective entity, group of undertakings or public companies (1). The interpretation of the provision cited above also precludes the parties to whom recourse is precluded: ...with the exception of the State, public bodies, large enterprises subject to extraordinary administration and undertakings subject to compulsory administrative winding-up. 14/2014, the minor undertaking shall be identified as follows:
The procedure for submitting the application presupposes, as mentioned above, that the entrepreneur wishing to avail himself of the institution is in a state of crisis or insolvency. The crisis is defined as: • the state of the debtor who makes the insolvency probable and manifests himself with the inadequacy of the prospective cash flows to meet the obligations in the next twelve months • (1). The insolvency is defined as: • the state of the debtor who manifests himself by default or other external factors, which demonstrate that the debtor is no longer able to meet his obligations regularly • These two definitions direct the orientation of the legislation as fundamental prerequisites for the entrepreneur to be allowed access to the institution.
It is also important to examine how the debtor should behave and what obligations arise at the time of the application: more precisely, the debtor has the duty to explain his situation in a truthful and transparent manner, providing all the necessary and appropriate information regarding the negotiations initiated, including in the negotiated composition and the instrument for regulating the crisis and the chosen insolvency in addition to the behaviour as described above, the debtor must also take timely steps to identify solutions for the overcoming of the conditions referred to in Article 12 (1) KIC, during the negotiated settlement and the rapid definition of the chosen instrument for regulating the crisis and insolvency, also in order not to affect the rights of creditors. The debtor must then manage the assets or undertakings during proceedings in the priority interest of creditors and, last, he must represent his situation to the expert, creditors and other interested parties in a complete and transparent manner and manage the assets and undertakings without unfairly affecting the interests of creditors under Article 16 (4) of the CCI (1). Finally, the behaviour of creditors is required that it be of loyal cooperation with any person involved either a person responsible or appointed by the judicial authority, and that creditors comply with the obligation of confidentiality on the situation of the debtor and on the initiatives he assumes under Article 4 (4) of the CCI. (1).
Ordinary Agreement, Agevolate Agreement and Extensive Effectiveness Restructuring
The ordinary restructuring agreement, which is worth recalling being the agreement between the entrepreneur who is in crisis and insolvency and creditors representing at least 60% of the claims, must contain the information on the elements of the financial economic plan allowing its execution, and a moratorium is also provided as the agreement must ensure payment of non-financial creditors within the following time limits: if the claims are already expired on that date, the deadline is 120 days from the approval, while in the case of claims not yet expired on the date of type approval, the deadline is 120 days from the date of expiry. The effects of the approval of the plan consist in the release of the guarantors of the debtor (Article 59 paragraph 1 CCi), the impossibility of unilateral refusal of performance by the creditor for contracts in the case of granting protective measures and, last, the non-experiability of the revocation in the judicial winding-up for acts and payments made in implementation of the restructuring agreement pursuant to Article 166 paragraph 3 KIC (1). In the event that the court does not duplicate the restructuring agreements, after appeal by one of the legal entities, it is possible to open a judicial winding-up.
The facilitated restructuring agreement presents instead some peculiarities that distinguish it from its ordinary counterpart, in fact, is simplified compared to the ordinary one and is governed by art. 60 Legislative Decree 14/2019. The main differences are: the percentage of creditors who must take part in the agreement, in fact, it stands at 30% unlike the 60% required by the ordinary agreement; the absence of moratorium in the payment of creditors outside the agreements, unlike the forecast of the same as regards the ordinary agreement, with consequent timeliness with which the debts that must be paid at the respective deadlines without the forecast of a delay (1); last a further difference is implied in the waiver of temporary protective measures that can be demanded instead in the ordinary agreement (1).
Finally, the extended restructuring agreement is based on the law of Article 61 of the CCI, which provides that the agreement in question also applies to non-member creditors belonging to the same category that can be identified taking into account the homogeneity of legal position and economic interests. A derogation from Articles 1372 of the CC and 1411 (contract for third parties) can therefore be identified. In the negotiation field, the principle of relativity of the contract, which provides for the impossibility of extending the effects of the contract concluded between the parties to third parties, except in the cases provided for by law, is applied to this context and provides for an explicit derogation: the extended agreement also has effects on non-member creditors belonging to the same category, always identified taking into account the homogeneity of legal position and economic interests (1). In order to extend the agreement to non-member creditors, the following conditions must be met: all creditors belonging to the category must have been informed of the opening of negotiations, put in a position to participate in good faith and must have received complete and updated information on the debtor's financial, economic and financial situation, as well as of the agreement and its effects; the agreement must be non-liquidary, providing for the continuation of the business of a direct or indirect undertaking (ex-art. 84 KIC); the claims of the participating creditors belonging to the category must represent at least 75% of all creditors belonging to the category; creditors of the same non-member category to which the effects of the agreement are extended may be satisfied on the basis of the agreement itself to a maximum extent compared to the judicial winding up; the debtor must have notified the agreement, the application for type approval and the documents annexed to the creditors against whom it is requested to extend the effects of the agreement. However, the possibility of opposition under art 48, paragraph 4 of Legislative Decree 14/2019, is provided for for creditors belonging to the same category who show their will not to join provided that they comply with the 30-day deadline within which to propose opposition starting from the date of communication.
Any changes to the plan or agreements have been introduced by art. 58 of Legislative Decree 14/2019 introducing a novelty compared to the past: it provides a discipline that applies specifically to agreements already concluded between debtor and creditor. The cases are different depending on whether the change takes place before or after the approval: before the approval if substantial changes to the plan and agreements are made, the recognition of the truthfulness of the business data and the feasibility of the plan by an independent professional (ex art. 57 paragraph 4 of Legislative Decree 14/2019) is renewed. Moreover, the debtor is obliged to request the renewal of the manifestation of consent to creditors parties to the same agreements. In the event that the plan is amended after type-approval, the contractor shall make only changes which are suitable to ensure the execution of the agreements and, after certification by the independent professional (ex art. 57 paragraph 4 d.lgs. 14/2019) the modified plan and the renewed certificate shall be published in the register of undertakings, within 30 days of receipt of the notice, opposition is allowed in the court.
Approval and enforcement of the Agreement
The approval may be accepted or rejected by the court, in the event of acceptance it shall decide by a judgment approving the restructuring agreements even if the financial administration does not accede but under certain conditions (1). The judgment approving the restructuring agreements shall be notified and entered in the register of undertakings pursuant to Article 45 and shall have its effects from the date of filing at the Registry (ex Article 133 (1) of the Code). The effects towards third parties shall be recorded in the Register of Undertakings and it is possible to lodge a complaint against the court which has delivered the approval judgment at the Registry of the Court of Appeal within 30 days. If, on the contrary, the court does not approve the restructuring agreements on appeal of one of the parties entitled to the judgment, it declares that the judicial settlement is to be opened. It cannot be done automatically but only on application of the parties concerned pursuant to Article 49 paragraph 1.2 KIC.
The execution of the agreement is the phase that the approval takes place, as stated previously at this stage both creditor and debtor must behave in good faith and correctness (ex art. 4 d.lgs. 14/2019. The code of the business crisis does not deal in a strict sense with the execution of the agreement, the most complex problems arise in the event of a default by the debtor, this in fact has different consequences depending on the category of creditors involved: In the case of creditors participating in the agreement the failure legitimates the same to request the termination of the agreement and if the request for resolution is accepted the claims return to their original In the case of non-member creditors, default allows them to take the classic remedies, such as the precautionary procedure, but not the termination of the contract not being contracting parties, in fact, this possibility is precluded but the possibility remains to be able to request the opening of the judicial settlement. In the case of so-called tax creditors, such as the revenue agency, there is a legal resolution of the tax transaction concluded under the restructuring agreements if the debtor does not fully execute within 60 days of the expected payments due to tax agencies.
Nature of the Agreement
In conclusion, it is appropriate to analyse the debate that characterizes the definition of the nature of the debt restructuring agreement. Doctrine and jurisprudence are in fact holding conflicting positions in this matter: according to a guideline the restructuring agreement has a private nature, since it is a multi-subjective contract between the debtor and the creditor, another hypothesis considers the restructuring agreement as a particular agreed preventive and finally another interpretation qualifies it as an autonomous competition procedure. The last classification needs to be completed with a pronunciation of legitimacy of the cassation: The agreement on the restructuring of debts referred to in Article 182-bis l.fall belongs to the institutions of competition law, as is deduced from its rules which presuppose, on the one hand, the control and publicity of the negotiated composition (in terms of eligibility conditions, filing with the competent court, publication in the register of undertakings and need for type approval) and, on the other hand, protective effects (such as temporary protection mechanisms and the exemption from the revoking of acts, payments and guarantees put into effect), typical of the insolvency proceedings.(case 1182/2018), identifying a more plausible way of interpretation in the current identifying the debt restructuring agreement as a competitive procedure.