Preferential right with regard to the credit accrued by the attestor who drafted the documents that allowed the debtor to gain access to a pre-bankruptcy procedure
The Court of Cassation has returned to decide on the issues of the right of professional attestor with the credit attributed in the bankruptcy preceding from pre-bankruptcy proceeding, and also the interpretation of Article 111, comma 2, of the Italian Bankruptcy Law, which establishes that the preferential right to professional credits accrued in the context of a bankruptcy procedure.
The Supreme Court Judges decided that the credits accrued by a professional that has carried out the works and consultation activities in drafting the request for admission to the pre-bankruptcy procedure should necessarily fall within the category of activities that are practical to the bankruptcy procedure, in line with the above-mentioned provision.
Through this reasoning, those credits should be satisfied in the course of the bankruptcy procedure, without the necessity of further assessing whether such professional activity of the creditors in the proceeding is actually practical.
It is clear that if there were any ex-post assessment on the practicality of these professional activities, the provision contained in Article 111, comma 2 of the Italian Bankruptcy Law would be redundant: in order for this credit to be regarded as preferential, there is no requirement to prove that the professional activity was useful for the creditors involved the bankruptcy.
Hence, once the debtor is admitted to the pre-bankruptcy procedure, in the event of the following bankruptcy, the credit accrued by the professional whose activity has been recognised as related to the drafting of the request of admission to the said procedure should be regarded as preferential. This would avoid any disparity between those professionals who have carried out their activities and have been paid fully at some point which allows them being sheltered from potential revocation claims and those professionals who have carried out activities for the admission of the debtor to the procedure, who may not have been immediately paid which led to the professionals becoming creditors in the bankruptcy proceeding.
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