Prepared by Andrea Lensi, Daniele Landi, Claudia Pagliari, Cristian Sgaramella, Ilaria Zingali, Michele Giuliani, Michele Carminati, Davide Ferracin, Carolina Notario, Alessandra Ghisio
Law Decree no. 23 of 8 April 2020 was published in the Official Gazette on 8 April 2020 (into force on 9 April 2020) containing urgent provisions on access to credit and tax obligations for companies, special governative powers in strategic sectors, as well as measures in the field of health and work, and extension of administrative and procedural deadlines (“Liquidità Decree“).
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B) Urgent measures for the businesses going concern and provisions on the exercise of special powers in areas of strategic importance
Postponement of the entry into force of the CCII – Article 6
The Liquidità Decree postponed until 1 September 2021 the entry into force of the Code of Corporate Crisis and Insolvency (CCII), initially established on 15 August 2020.
In the current macroeconomic framework, the Italian Lawmaker considered appropriate the postponement of the entry into force of the entire CCII, especially in order to avoid the introduction of the new legislation in a context of exceptionality due to the contingent epidemiological situation, as well as to allow for the alignment of the CCII with the issuing legislation implementing the EU Directive 1023/2019 about the preventive restructuring frameworks.
On the other hand, the provisions of Article 389, paragraph 2 of the CCII, already entered into force on 16 March 2019, do not change. These ones include the obligation for the entrepreneur operating in a corporate or collective form to establish within 30 days an organizational, administrative and accounting structure pursuant to Article 2086 of the Italian Civil Code (art. 375 and 377 CCII) and the increase of the number of companies required to appoint the control body or the external auditor (art. 379 CCII).
Composition with creditors and restructuring agreements – Article 9
The current situation could jeopardise the attempts to overcome the corporate crisis undertaken before the beginning of the emergency. As a result, certain procedures, which have a concrete chance of success, could see their outcome compromised. The Liquidity Decree provides, therefore, a series of measures designed to preserve the compositions with creditors and the restructuring agreements already homologated, and to manage the timeframe of the procedures mentioned above up to the date of their homologating decree.
In particular, the provision provides for:
- the extension by six months of the deadlines to fulfil the duties established into the homologated compositions with creditors and restructuring agreements, which shall expire between 23 February and 31 December 2021;
- regarding the homologation process of the composition with creditors and restructuring agreements pending on 23 February 2020, by filing the relevant application, Courts can grant a not exceeding 90 days deadline and not extendable for the filing of a new plan and proposal of composition with creditors pursuant to Article 161 of the Bankruptcy Law, or a new debts restructuring agreement pursuant to Article 182 bis of the Bankruptcy Law. Such provision, nonetheless, does not apply when the meeting of creditors has already been held without reaching the required approval majority;
- as regards compositions with creditors and restructuring agreements proceedings, the faculty for the debtor to unilaterally modify the relevant deadlines for fulfillment, extending them to up to six months, by filing a notice setting out the new deadlines and the documents supporting the need for the modification;
- the right, for the debtor who has obtained a term pursuant to either Article 161, paragraph 6, or 182 bis, paragraph 7, of the Bankruptcy Law, where the term is expiring and cannot be further extended by the Court, to require, giving an adequate description of the elements relating to the epidemiological emergency, a further extension of up to 90 days. The provision also applies if an application for a declaration of bankruptcy has been filed.
Provisions on appeals, claims and applications for declaration of bankruptcy and insolvency. Effects for claw-back actions – Article 11
In order to lighten the growing pressure of the creditors and to relieve debtors from the obligation to file for a voluntary bankruptcy on their own, Article 11 of the Liquidity Decree establishes the inadmissibility of all requests for the declaration of bankruptcy and the state of insolvency filed between 9 March and 30 June 2020 toward the various types of debtors, as provided for by bankruptcy, compulsory liquidation and extraordinary administration procedures.
Companies subject to Legislative Decree no. 347 of 23 December 2003 (the so-called Marzano Law) are excluded from the scope of application of such a provision.
A further exception to the unenforceability is provided for in the event that the request is filed by the public prosecutor and contains a petition to issue precautionary or protective measures, pursuant to Article 15, Paragraph 8, of the Bankruptcy Law.
Finally, in order to prevent the above mentioned suspension from causing irreversible consequences in the context of filing petitions toward companies cancelled from the Register of Chamber of Commerce or with regard to the compliance with the par condicio creditorum principle, the provision also foresees the ineffectiveness of the inadmissibility period for the computation of the time-limits for filing the petition, both for the application for the declaration of bankruptcy against the company cancelled from the Register of Chamber of Commerce and for claw-back actions.
Extension of the intervention of the Guarantee Fund for SMEs to non-performing businesses under fixed conditions – Article 13
Please, refer to Section A of the PwC TLS News Alert, which provides an extensive description of the measures taken by the Guarantee Fund for SMEs.
It is brought to light that the guarantee shall be made available also for insolvent companies; the scope is limited only to businesses which, after 31 December 2019: (i) have been admitted to procedures pursuant to Article 186-bis of Italian Bankruptcy Law, or (ii) have entered into restructuring agreements pursuant to Article 182-bis of Italian Bankruptcy Law, or (iii) submitted a certified plan pursuant to Article 67 of Italian Bankruptcy Law, and provided that, at the date of effectiveness of the Liquidità Decree: (a) the relevant defaults have not been classified as bad debts, (b) did not default payments following the date of the granting of the guarantee, and (c) the bank has evaluated as probable the reimbursement in full at maturity.
Temporary disapplication of the rules on recapitalisation obligations – Article 6
The Liquidità Decree aims at avoiding that the obligations to recapitalize provided for in the Italian Civil Code for joint stock companies and limited liability companies – and the related provisions about liquidation and directors’ liability – apply to companies that have suffered losses due to the crisis from COVID-19.
In particular, the scope is to prevent a very large number of companies from making the unreasonable choice between the immediate liquidation of the company – with the loss of the going concern – and the continuation of business – with liability on the management body that has not adopted the mandatory technical measures.
In view of the above, in the case of losses occurring during the financial years ended by 31 December 2020, the Liquidità Decree provides for:
- the disapplication of Articles 2446, Paragraphs 2 and 3, 2447, 2482 bis, Paragraphs 4, 5, 6 and 2482 ter of the Italian Civil Code regarding the share capital reduction for losses and the share capital reduction below the legal limit
- the disapplication of Articles 2484, n. 4 and 2545 duodecies of the Italian Civil Code(causes of company dissolution due to reduction or loss of share capital)
Temporary provisions on accounting principles – Article 7
In light of the current epidemiological emergency and the profound but temporary repercussions that it may have on the company’s going concern prospects, the Liquidity Decree has intervened by allowing companies, which before the COVID-19 emergency had a regular going concern prospect, to draft and approve the financial statements as at 31 December 2020, evaluating the assets and liabilities on a going concern basis pursuant to Article 2423 bis, paragraph 1, no. 1) of the Italian Civil Code.
Therefore, the valuation of the items on a going concern basis as per Article 2423 bis, Paragraph 1, no. 1 of the Italian Civil Code may be carried out if the going concern prospect exists in the last financial statements for the year ended before 23 February 2020.
As clarified in paragraph 2 of the same Article, the aforesaid provision also applies to financial statements closed by 23 February 2020 and not yet approved.
Finally, it has been saved the provision set forth in Article 106 of the Care Italy Decree, which had provided for the extension by sixty days of the deadline for the adoption of the financial statements or the financial statements for 2019, ordinarily set at 30 April 2020.
This provision is also examined analytically to ensure exhaustiveness in Section C of the PwC TLS News Alert.
Temporary suspension of subordination mechanism: shareholder financing and management and coordination financing – Article 8
In order to allow a sufficient refinancing companies, the Liquidity Decree provides for the temporary suspension of the application of the subordination mechanisms on the shareholders’ loans and on the loans granted by companies who exercise management and coordination activities, pursuant to Articles 2467 and 2497 quinquies of the Italian Civil Code. The purpose of this suspension is to allow the widest possible involvement of shareholders and parent companies in increasing the company’s cash flows.
The suspension is established for loans granted from the date of entry into force of the Liquidity Decree until 31 December 2020.
The “Golden Power” step-up – Articles 15, 16 and 17
By means of the Liquidità Decree, the Council of Ministers adopted new extraordinary measures on Golden Power in order to tackle, in this time of emergency involving the whole Country, serious threats to companies operating in strategic sectors for the national economy.
Extension of subjective and objective scope
The measures adopted with the Liquidità Decree provide for an extension of:
- the subjective scope: some measures also apply to EU resident entities;
- the objective scope: in addition to the sectors traditionally considered strategic (defense and national security, energy, transportation, communications and 5G technology), the powers granted to the State are deeply broadened and extended to the following sectors:
- critical infrastructures, including, water, health, media, data processing or storage, aerospace, defense, electoral or financial infrastructure, and sensitive facilities, as well as land and real estate crucial for the use of such infrastructure;
- critical technologies and dual-use items, including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defense, energy storage, quantum and nuclear technologies as well as nanotechnologies and biotechnologies;
- supply of critical manufacturing factors, including energy or raw materials, as well as food security;
- access to sensitive information, including personal data, or the ability to control such information;
- the freedom and pluralism of the media.
Powers enforceable by the State
The special powers granted to the State are unaltered and, in order to control any transaction that might be detrimental to national assets and businesses that are considered strategic, they are substantially as follows:
- opposition to sales and purchases of corporate shares;
- veto on specific corporate resolutions;
- dictating of specific requirements and conditions.
Therefore, in case of corporate transactions that may pose a threat in sectors having strategic relevance for national interests, the purchasing entity shall serve the Prime Minister’s Office (in the meaning of “Presidenza del Consiglio dei Ministri”) a prior written note containing certain relevant information on the transaction. Furthermore, the Liquidità Decree introduces the possibility of exercising the State’s special powers even on non-notified transactions (ex officio).
Content of notification
The notification must include the information required therein, namely:
- in case of resolutions passed by shareholders or directors:
- text of the resolution and related documentation;
- any information enabling the assessment of the threat of serious prejudice to the essential public interests;
- in case of purchase of corporate participating interests:
- industrial project pursued by the notified acquisition;
- financial plan;
- general description of the proposed purchase and its effects;
- details of the purchasing entity and its business scope;
- any information enabling the assessment of the threat of serious prejudice to the essential public interests.
The notifying party shall declare, subject to criminal liability, that the information given is true, correct, complete and the conformity with the originals of the attached documents, as well as the person or entity to whom communicate any requests for additions and/or the initiation of other sub-phases of the procedure and/or any act of exercising special powers.
New measures adopted
The main additions, in terms of protective measures, are as follows:
- until entry into force of the Prime Ministerial Decree referred to in Article 2, paragraph 1-ter of Decree Law no. 21/2012, aimed at identifying those assets and titles having a strategic relevance to the national interests, all share purchases of companies holding assets in any of the above-mentioned sectors, including financial, credit and insurance sectors, are subject to prior notification;
- until 31 December 2020, in order to face the epidemic emergency owing to Covid-19 and limit its negative effects, also the following acts shall be previously notified:
- resolutions, acts or transactions, adopted by a company holding assets related to the above-mentioned sectors, entailing changes in ownership or control of such assets or a change in their destination;
- purchases, to whatsoever title, of participating interests in companies owning networks or infrastructures strategic for the national interest or operating in any of the above-mentioned sectors, which are made
- either by foreign investors, including EU based ones, to the extent the share purchase involves the permanent establishment of the purchasing entity due to the gaining of control in the company being purchased, or
- or by foreign non-EU investors, to the extent they acquire at least 10% of the voting rights or of the share capital of the target company,
in both cases taking into account the shares or quotas already held directly or indirectly held by the purchaser and the value of the overall investment, which shall be equal to or higher than EUR 1 million;
- any share purchase in companies that own networks or infrastructures of strategic relevance to the national interest or operate in any of the aforesaid sectors, when thresholds of 15%, 20%, 25% and 50% of the share capital are exceeded;
- The effects of shares purchase may be conditional, by means of a specific Prime Ministerial Decree, on purchaser’s commitment to guarantee the core interests of the State or security or public order, even if the purchaser is a public administration of a Member State of the European Union.
- The protection system is extended to small and medium-sized enterprises deemed strategic for the national economic development, as well.
Duration of the new measures
The new measures are effective until 31 December 2020.
Nevertheless, limited to the notification duties, they shall also apply where the related obligation has arisen by 31 December 2020, but the notification occurs afterwards or is omitted at all.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti
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