Urgent measures regarding corporate crisis and restructuring, and other urgent measures about justice

Conversion into law of the Law Decree no. 118/2021

Prepared by Cristian Sgaramella, Michele Giuliani and Maria Progida

On October 23, 2021 was published in the Official Journal the Law no. 147 of October 21, 2021, which converts, with amendments, Law Decree no. 118 dated August 24, 2021, pertaining to “urgent measures regarding corporate crisis and restructuring, and other urgent measures about justice” (the “Decree”).

Some of the main changes envisaged with respect to the content of the Decree, already addressed in the newsletters, dated September 2, 2021 and October 5, 2021, are:

1. introduction of Article 1 bis which amends Article 379 of Corporate Crisis and Insolvency Code by postponing by one more year (i.e. to the date of approval of the financial statements regarding fiscal year 2022 rather than to the approval of the financial statements regarding fiscal year 2021) the obligation for smaller limited liability companies and cooperative companies established by March 16, 2019, to appoint the supervisory bodies or the auditor and, if necessary, to bring the corporation deed and by-laws with the provisions of Art. 2477, paragraphs II and III, Italian Civil Code;

2. amendment of Art. 15 of the Decree, regarding the appointment of the expert for the negotiated settlement of the corporate crisis, pursuant to which the supervisory body informs the managing body in writing of the existence of the prerequisites for presenting the request for the appointment of the expert.  The fulfilment of this obligation, as well as the supervision of the progress of the negotiations, are assessed for the purposes of the liability pursuant to Art. 2407, Italian Civil Code. However, the reference to the exemption from or mitigation of the said liability has been removed;

3. with particular reference to the figure of the expert negotiator:

  • professionals can apply for registration in the special list opened with the Companies’ Register solely through the Professional Association to which they belong, thus eliminating the possibility, previously provided for, of choosing according to the further criteria of the relative place of residence. Criteria still in force for those who, in requesting enrolment in the aforesaid list, are not enrolled in any Professional Association;
  • in order to further guarantee the independence of the expert, Art. 4, paragraph I of the Decree has been amended by providing that for two years following the closure of the negotiated settlement procedure, the expert may not maintain professional relationships with the same entrepreneur;
  • – also in Art. 4, paragraph II of the Decree, it has been added that the professional must be a third party with respect to all the parties involved in the negotiation process, extending the requirement of independence also to individuals with specific skills and operating in the economic sector in which the entrepreneur operates or to the statutory auditor of which the expert should avail himself during the course of the assignment;
  • Art. 5, paragraph III, lett. d) of the Decree, which indicates the documentation to be submitted within the telematic platform together with the application for the expert’s appointment, provides that – as per amendments made by the Conversion Law – the entrepreneur shall submit, in addition to the declaration of existence of claims for bankruptcy or insolvency against him, a further statement in which he certifies to have not filed any claims for arrangement with creditors or for the approval of debt restructuring agreements, pursuant to, respectively, Art. 161 and Art. 182-bis of the Italian Bankruptcy Law, also in cases referred to in Art. 161, paragraph VI, Italian Bankruptcy Law (i.e. application for a blank request) or Art. 182-bis, VI paragraph, Italian Bankruptcy Law (i.e. proposed debt restructuring agreement);
  • Art. 5, paragraph VII of the Decree, now envisages the possibility, when all the parties request it and the professional agrees, to continue the search for an appropriate solution to resolve the economic-financial deficit, for no more than a further 180 days with respect to the same term otherwise envisaged for the conclusion of the engagement;
  • Art. 5, paragraph VIII ter of the Decree, excludes the possibility for the entrepreneur to present a new request for the appointment of a professional before one year has passed since the request was filed.

4. Amendment of Art. 8 of the Decree, pursuant to which the entrepreneur is given the possibility, at the time of the application for appointment of the expert or with a subsequent request, to declare that, until the conclusion of the negotiations or the filing of the application for a negotiated settlement, Art. 2446, paragraphs II and III, Art. 2447, art. 2482 bis, paragraphs IV, V and VI, as well as Art. 2482 ter, Italian Civil Code, do not apply to the same, and the causes for the dissolution of the company due to reduction or loss of capital do not occur. The application and declaration are published in the Companies’ Register and take effect from the date of publication.

5. Increased protection of creditors’ interests, which the entrepreneur shall aim at in maintaining the ordinary and extraordinary management of the company when, pursuant to Art. 9, paragraph I of the Decree, it appears, during the negotiated settlement, that the entrepreneur is insolvent but, at the same time, there are concrete chances of restructuring.

6. More incisive role of the Italian Court which, in authorizing the entrepreneur pursuant to Art. 10, paragraph I, letter d), of the Decree to transfer the company or one or more going concerns, may also establish the most appropriate actions that take into account the requests of the involved parties in order to protect the interests at stake.

7. Possibility, in simplified arrangement for the liquidation of assets as per Art. 18, paragraph 1, of the Decree, to foresee within the proposal of the entrepreneur the division of creditors into classes, as well as the need, in order to have access to such simplified arrangement for the liquidation of assets, for the negotiations that failed to come to a successful conclusion to be conducted in accordance with good faith and fair dealing.

Let’s Talk

For a deeper discussion, please contact:

Cristian Sgaramella

PwC TLS Avvocati e Commercialisti


Michele Giuliani

PwC TLS Avvocati e Commercialisti


Maria Progida

PwC TLS Avvocati e Commercialisti

Senior Manager