Il piano attestato di risanamento: uno strumento di risoluzione della crisi finanziaria d’impresa tuttora efficace
More than ten years after the major reform of the Bankruptcy Code, the Certified Restructuring Plan still represents a relevant instrument for those enterprises which are involved in financial crisis. It is an out-of-court proceeding of internal reorganisation of the entrepreneur, that may involve creditors with restructuring agreements. Art. 67, paragraph 3, letter d), of Royal Decree 16 March 1942, no. 267, does not describe the instrument or its content, it only highlights the aim of restoring the debtor’s economic and financial balance and regulates the effects in the bankruptcy procedure of the failure of a Certified Plan. It envisages the exemption from claw-back actions for those operations and acts performed in execution of a restructuring plan certified by an independent professional. The law requires specific conditions for the role of this professional and the related activity of certification: basically the professional shall be an expert and his report shall certify the truthfulness of data and the feasibility of the plan to remove the distress. The evaluation of feasibility shall be intended on the base of data and assumptions known at the moment of the certification, in an ex ante perspective. When the plan is aimed at restoring a sustainable financial situation and the certificate is pursuant to art. 67, paragraph 3, letter d) of the Bankruptcy Code, the executing operations pursuant to the plan are exempted from claw-back actions in the possible following insolvency procedure and, if the plan is published in the Companies’ Register, specific taxation benefits are granted to the debtor. In order to set an organic reform of the Bankruptcy Code the proposal prepared by the Commission appointed by the Ministry of Justice considers the maintenance of the Certified Restructuring Plan and suggests the introduction – in the provisions of the law – of features and conditions that doctrine and common practice have already emphasised.