Italian Bankruptcy Law

Bankruptcy in Italy - What are the options?

Italian Bankruptcy law is quite complicated, and it is constantly under revision and updates.

The current Italian Bankruptcy Law is regulated by Royal Decree No. 267 of 16 March 1942. Insolvency procedures aim to give a solution to the state of crisis or to the state of insolvency of a commercial enterprise by regulating its relations with creditors.

Basically, there are 5 insolvency proceedings. But even though there are 5 types of insolvency proceedings, it does not mean that one can chose which one to follow. Each proceeding has its own characteristics and requirements, therefore, the procedure to be followed will depend on each case.

5 types of insolvency proceedings in Italy:

1. Bankruptcy proceeding

It is a legal proceeding involving an entrepreneur or business that is unable to repay their debts. Through this proceeding, a company is brought to an end by releasing the debtors from their debts and giving the creditors the opportunity of repayment (partial). In order to go under bankruptcy proceeding, insolvency situation must be real and proven.

2. Arrangement with creditors

There are different types of arrangement with creditors. Unlike the bankruptcy proceeding, this one doesn’t intend to bring the company to an end, having two important function: a) to protect on one hand, the entrepreneur who is in a state of difficulty, and on the other hand, to also protect the creditors so that their credits can be partially repaid; b) it favors the recovery of the company and the continuation of the business activity.

3. Compulsory administrative liquidation or Receivership

It is characterized by its administrative nature, yet it is very similar to bankruptcy procedure. It is basically an insolvency proceeding that applies to specific types of business established by the law, such as: banks, insurance companies, etc. In case these companies are in a situation of crisis, instead of insolvency, they can apply for the “Arrangement with creditors” (exceptions may apply, see art. 3 Bankruptcy law), yet, as a general rule, they cannot apply for a Bankruptcy procedure. It is characterized by its administrative nature.

4. Extraordinary administration

This is another insolvency proceeding that applies to “large business enterprises” as the Receivership, it is of administrative nature and its objective is not to bring an end to a company, instead, it aims the conservation, in its whole or in its part, of the business activity.

5. Special extraordinary administration

This proceeding has been introduced relatively recently (in 2003 with “Decreto Mazano”). Generally speaking, this proceeding is very similar to the “Extraordinary administration”, with the difference that the “Special extraordinary administration” aims to launch, in a faster way, the company’s restructuring program, in order to ensure the continuation of the business activity.

File an application to claim your credit

If the credit has been contracted before your Italian partner has decided to go under an insolvency proceeding, you can claim your credit and request to be refunded by filing an application (Istanza di ammissione al passivo – hereinafter as“Application”) with the Receiver and submitting documentary evidence that proves your status as a creditor.

Filing an application is not a particularly difficult procedure but some technicalities must be fulfilled, such as:

i. All documents must be submitted in the order indicated by the Receiver
ii. Accrued interests must be calculated in accordance with mandatory criteria
iii. Currency exchange rate must be done using applicable standards, and additionally,
iv. In case the claim concerns the payment for sending merchandise, the step of gathering all necessary documents may be lengthy and a bit more complex.

We can assist!

Accuracy of the Application is important as the Receiver and the Delegated Judge will ground their decision on this document. In case you need support in this regard, do not hesitate to contact us, as this proceeding has a limited time and in order to have better chances to be paid back, it is highly important to prepare carefully this document, examine all supporting documents, and submit it before the deadline.

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Frequently Asked Questions

About Application (proof of claim)

How can I demonstrate I’m a creditor under Italian Law?

In order to prove your status as a creditor, you need to submit documentary evidence that proves you are a creditor, such as contracts, agreements, invoices, fax, etc., indicating the exact amount of the credit by filing a proof of claim. Without this step, you will not be eligible for the payment.

What is a proof of claim? What is it for?

A proof of claim is a document that a creditor must file in order to be eligible for the payment of a bankruptcy case. Basically, the proof of claim will help the Official Receiver (curatore fallimentare) to understand the amount of debt and the type of it. Having examined the submitted documents, the Official Receiver will determine the amount that will be paid to the creditor.

Can I prepare the Application (proof of claim) by myself?

Yes, from a legal point of view, you can prepare it by yourself, however it can be advisable to contact a specialist for it (you won’t want your claim to be rejected or to be accepted partially due to a formal/technical mistake). And please remember, the Application must be written in Italian.

What is a PEC? Do I need it?

Yes. A PEC address is required in order to communicate with the Official Receiver and submit the required documents (including the proof of claim). The Official Receiver will use the assigned PEC address for communicating with the creditors. If you file the proof of claim and submit the necessary documents by yourself, you will need a PEC address, otherwise, your lawyer will do it with his own PEC address.

Application procedure and timeframe

Do I need to go personally to Italy in order to file an insolvency claim?

No, you do not have to be present in Italy for it.

What happens if the filling deadline is missed?

As already explained, it is very important to respect the deadlines. In case you missed it, there is still a possibility to file a late Application. However, your chances to be paid back will be much lower. Yet, if this is your case, don’t be completely discouraged as there might be a possibility, but you need to keep in mind that the chances (and the amount to be paid) will be lower.

How long does a bankruptcy procedure take?

It is not possible to estimate how long a proceeding may last. However, according to studies carried out on bankruptcy proceedings, in Italy this proceeding may last for an average time of 7 years. This may also vary depending on each region. For example, in Lombardy (Milan), the average is 5.3 years, while in Lazio (Rome) the average is 6.9 years. Generally speaking, the proceeding in the south may take longer time (e.g. The average in Basilicata is 12,5 years)

Who is the Official Receiver? What is his role?

Under Italian Bankruptcy law, an Official Receiver is an independent third party appointed by the Court. Usually, an Official Receiver can be a lawyer, a certified accountant, etc. experienced in insolvency matters, or this role can be trusted to a firm of lawyers or CPA firm. An Official Receiver has many tasks. The most relevant ones are the preparation of the liquidation plan, formation of the draft of the passive state, communication to creditors and to other right holders to the proceeding.