With two decisions (No. 1895/2018 and No. 1896/2018), both filed on 25 January 2018, the Court of Cassation reached opposite conclusions in the two different situations.
The case
The decision No. 1895/2018 was issued in the case of a lawyer
who appealed against a decision of the Tribunal of Bari which,
confirming the decision of the Bankruptcy Judge in the proof of debt phase,
rejected the request to allow as a super-priority claim the
receivable for legal services to a company which was later declared
bankrupt, with respect to the drawing up of a
restructuring plan according to Art. 67, para.
3, IBL.
The decision No. 1896/2018 was issued in the case of two lawyers
who appealed against a decision of the Tribunal of Verona which,
confirming the decision of the Bankruptcy Judge in the proof of
debt phase, rejected the request to allow as a super-priority claim
the receivable for legal services to a company which was later
declared bankrupt, with respect to the confirmation by the Court of
a debt restructuring agreement according to Art.
182-bis IBL.
The issues
In both cases the issue was the interpretation of Art. 111, para. 2, IBL, whereby super-priority is granted to claims «arisen in the occasion or functional to insolvency procedures». The issue relates then also whether restructuring plans and debt restructuring agreements can be considered as insolvency procedures, at lest for the purposes of the super-priority of related claims.
The decisions of the Court
With the first judgment (No. 1895/2016) the Court of Cassation
rejected the appeal, stating that restructuring plans cannot be
considered as insolvency procedures. According to the Court,
indeed, they do not show the earmarks of an insolvency procedure:
the plan could entail just mere private and unilateral deeds of the
company and could even not consider creditors concurring on the
debtors' assets, but only deals (such as sales of assets or new
shareholders) with third parties different from creditors.
With the second judgment (No. 1896/2018) the Court of Cassation,
although not qualifying debt restructuring agreements as insolvency
procedures, but merely stating that they are governed by the IBL,
ruled that professional claims relating to the Court confirmation
of restructuring plans and debt restructuring agreements pursuant
to Art. 182-bis IBL can enjoy super-priority status. The Court
further clarifies that to such end it is not necessary that,
afterwards, an advantage is ascertained for the creditors as a
consequence of the services, because the Court confirmation of the
agreement already certifies that in principle.
Commentary
The Court of Cassation for the first time takes into
consideration the issue of the super-priority status of claims for
professional services related to restructuring plans and debt
restructuring agreements.
As it has been correctly pointed out by commentators (BONFATTI,
La natura giuridica dei "piani di risanamento
attestati" e degli "accordi di
ristrutturazione" in www.ilcaso.it), the
decision regarding restructuring plans raises some concerns,
because the Court did not address the issue (which was raised by
the claimants) regarding the relationship with the provision of
Art. 67, para. 3, lett. d) IBL exempting payment of these claims
from claw-back action. The decision of the Court, denying
super-priority status, determines indeed a paradoxical practical
outcome, in the sense that, other conditions being equal, when the
claim has been paid before bankruptcy, it cannot be clawed back,
whereas when the professional accepted to be paid later, although
he supported the company in distress, does not enjoy
super-priority.
The second decision has also raised been criticized, in that the
Court granted super-priority status based on the consideration that
debt restructuring agreements are governed by IBL, but has not
expressly qualified them as insolvency procedures. In this respect
it should be pointed out that Regulation (EU) No. 2015/848 on
insolvency procedures does indeed include at Annex A debt
restructuring agreements, and that the latest proposal approved by
the Italian Government for a new Code of insolvency and
distress, although providing for a number of definitions, does
not include one for "insolvency procedure".
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