THE “CORRECTIVE DECREE” TO THE CODE OF BUSINESS CRISIS AND INSOLVENCY
On 5.11.20, Legislative Decree no. 147/2020 was published in the Official Gazette which, in execution of the provisions of art. 1 of Law no. 20/2020, made additions and corrections to the Code of Business Crisis and Insolvency (Legislative Decree no. 14/2019, which, following the postponement introduced by the recent Legislative Decree, “Liquidity”, will enter into force from 1.9.21).
Among the most important new features are: i) the redefinition of the state of crisis and its indicators, ii) the introduction of new reporting obligations under Articles 14 and 15 (CCII) to OCRI, (iii) the redetermination of the relevant thresholds for the activation of the so-called external alert by the Revenue Agency, iv) the change in the composition of the panel of experts set up at the OCRI, v) the change in the rules of the arrangement with creditors, restructuring agreements and the certified group plan and vi) the specifications introduced with regard to the so-called company law of the crisis.
RECENT REFORMS OF THE LEGISLATIVE DECREE. N. 231/2001
Legislative Decree no. 75/2020, recently entered into force, has implemented the EU Directive 2017/1271 (so-called PIF Directive), relating to the fight against fraud affecting the financial interests of the Union.
As a result of the decree, the underlying offences that give rise to the administrative liability of Entities pursuant to Legislative Decree no. 231/2001, of which in particular Articles 24, 25, 25 quinquiesdecies and sexiesdecies have been amended.
This last decree is in substantial continuity with the legislator’s desire to extend the scope of the aforementioned liability, already expressed during the reforms to Legislative Decree no. 231/2001 in 2019.
PURCHASE OF SHAREHOLDINGS AT THE TIME OF COVID-19
The completion of transactions for the acquisition of shareholdings is usually carried out through the signing of option agreements, whereby one party is bound to keep its contractual proposal for a certain period of time, with the right of the other party to accept or not accept this proposal, within the agreed time limit.
The Covid-19 emergency has sometimes led to situations of difficulty – if not impossibility – in implementing such contracts, with the consequent need to check whether there are solutions to restore the balance in the negotiations.
SMART CONTRACT: IF – THIS – THAN – THAT
The smart contract performs a real translation of the contractual agreement into an unmodifiable digital code.
In order to reach the stipulation, the parties, having negotiated the clauses that will regulate the legal relations between them, will have to insert them into a specific software in the form of computer code, according to the conditional logic of “if this than that“.
Upon the occurrence of the conditioning events deduced in the contract, the negotiation effects desired by the parties will be produced automatically, through a self-execution mechanism. In fact, the software adds a self-executable code to the contractual clauses, which is saved and stored on the blockchain.
COVID-19: OBLIGATION TO COVER LOSSES AND BUSINESS CONTINUITY
The wording – actually incomplete – of art. 6 of Decree Law no. 23/2020, which provides for the suspension of the obligation to adopt the measures provided for by law for the case of losses that have reduced the capital by more than one third or below the legal minimum, has led operators to question the applicability of the derogation to the case of losses occurred before 31.12.20 (such as those resulting from the financial statements at 31.12.19), and not only to those accrued during the epidemiological emergency.
Doubts have also arisen as to the general and unconditional applicability of the presumption of business continuity of Article 7 of the aforementioned decree, as well as to the existence of the obligations and responsibilities provided for by Article 2486 of the Italian Civil Code.
With regard to the first aspect, there are two doctrinal theses that have emerged to date: one, more restrictive, limits the applicability of the derogation to losses that will occur in the period 9.4/31.12.20; the other, more extensively, considers that the derogation should be applied with reference to all losses accrued before 31.12.20.
IMMINENT EXPIRY OF THE OBLIGATION TO APPOINT THE SUPERVISORY BODY OR THE SOLE AUDITOR
Decree-Law no. 162/19, converted into Law no. 8/20 of 28.2.20, amended the third paragraph of art. 379 of the Code of Business Crisis and Insolvency, postponing the deadline by which the s.r.l. must appoint the auditor or the control bodies at the date of approval of the financial statements for the 2019 financial year, which in derogation of the provisions of articles 2364, second paragraph, and 2478-bis of the Civil Code or the various provisions of the articles of association (art. 106 D.L. 18/2020), may be convened within one hundred and eighty days from the end of the financial year, and therefore by 28 June 2020.
Given that this date coincides with a public holiday (Sunday), it could also be considered admissible to call a meeting on 29 June 2020. However, if certain conditions are met, the possibility of making such an appointment by 29 July 2020 is not ruled out.
EMERGENCY PROTECTION OF THE COMMERCIAL TENANT AND LESSEE AT THE TIME OF COVID-19
The extraordinary measures adopted by the Government and the Regions to contain the epidemic had a heavy impact on the activities of companies, requiring their forced suspension, from which came a sharp drop in income and an increase in the difficulty to meet payments of debts, including rents for premises used to run the company.
As is well known, if the tenant/lessee fails to pay the rent, the landlord has the protection offered by guarantee instruments (autonomous guarantees on first demand, bills of exchange, cheques, to name but a few), provided by the tenant at the time the contract was concluded and immediately enforceable in the event of default. Guarantees that some landlords have attempted to enforce in order to deal with the failures undergone during the current emergency, in most cases without success, because such initiatives have been paralysed by the injunctions filed as a precautionary measure by the tenants.
From the pronouncements that have been made to date on this point, which will be reviewed below, we can see a particular sensitivity towards the position of the subject who is in a situation which makes fulfilment “difficult”.
E-COMMERCE DOESN’T STOP: OPPORTUNITIES AND REGULATORY CONSTRAINTS
The forced halt of many production and commercial activities, as a result of the application of quota measures to deal with the epidemiological emergency from Covid-19 has encouraged producers of goods and services to boost online.
The implementation of e-commerce forms also goes through the examination of the regulatory discipline dictated on the subject, which places precise information obligations on the seller/provider of online services, identifies the final moment of the telematic contract as an exception to the general provisions, dictates specific criteria for the identification of the jurisdiction and the competent court to settle any disputes relating to the contract, and introduces a discipline for the protection of the buyer following his withdrawal from the contract.
SHAREHOLDERS’ MEETINGS AT THE TIME OF COVID-19
With art. 106 of Legislative Decree no. 18/2020, the legislator recognised the possibility of holding shareholders’ meetings exclusively by means of telecommunication, also in derogation of any different statutory provisions.
This apparently clear prediction has raised many questions in its concrete implementation. Given the silence of the above special regulations, the question has been raised as to whether the place where the meeting is to be held should be indicated in the notice of call and whether the Secretary’s presence at the place where the meeting is to be held remains mandatory. Nor have the procedures for allowing the minutes to be signed by the secretary and the chair of the meeting, in the event of a meeting by videoconference, been regulated. Finally, nothing has been said about the possibility of continuing to apply the meeting arrangements practised during the current emergency period, once it is over
FORCE MAJEURE CERTIFICATES TO EXCUSE THE DELAYED OR NON-FULFILMENT, CAUSED BY COVID-19, OF SUPPLY CONTRACTS WITH FOREIGN COUNTRIES
With circular no. 0088612/2020, the MISE has authorised the national Chambers of Commerce to issue, upon express request of the companies concerned, declarations aimed at certifying the existence of a cause of force majeure, represented by the current epidemiological emergency and the restrictions aimed at containing it, which has hindered the punctual fulfilment by Italian companies of the supply contracts stipulated with foreign customers.
Once the above mentioned certificate has been obtained, the domestic supplier shall promptly forward it to the foreign customer, in order to allow the latter to have adequate and prompt knowledge of the cause of force majeure that has taken place. Through these means, the supplier may also invoke the application of contractual and legal remedies that allow it to avoid incurring the termination of the supply order.
COVID-19 EMERGENCY: JUST CAUSE FOR WITHDRAWAL FROM NEGOTIATIONS?
Given the very general wording of Article 91 of Legislative Decree no. 18/2020 (a provision which requires the courts, when examining applications under Article 1218 of the Civil Code, to take adequate account of the impact that the application of government measures aimed at containing the epidemic may have had on the debtor’s ability to comply), the question arose as to whether compliance with those measures could be considered a suitable cause to exempt the withdrawing party from liability for unjustified abandonment of negotiations.
As is well known, the initiation of negotiation activities, aimed at defining the contents of a future contractual agreement, places a duty on the contracting parties to act in good faith. Article 1337 of the Italian Civil Code extends to the pre-contractual phase the scope of operation of that same duty of good faith which requires the parties to behave fairly and correctly at all times in the negotiation relationship, so that, in the absence of a just cause, the abandonment of negotiations is considered abusive.
In order to verify whether compliance with the anti-Covid measures imposed by the Authority can fall within the concept of a just cause for withdrawal, it is necessary to start from the reconstruction that doctrine and jurisprudence have made of this institution.
NULLITY OF OMNIBUS SURITIES FOR ANTITRUST LAW VIOLATIONS
The Court of Cassation is active on the issue of the nullity of the surety in whose general terms and conditions there are clauses containing provisions contrary to antitrust legislation and, in particular, contrary to the prohibition of agreements restricting freedom of competition (the reference is to the clauses contained in Articles 2, 6 and 8 of the general terms and conditions of the ABI, respectively relating to “Cancellation, ineffectiveness and revocation of payments”, “Liability of the guarantor” and “Invalidity of the guaranteed obligation”).
The discussion, enriched also by a recent ruling of the Supreme Court, started from a provision, issued by the Bank of Italy in 2005, by which the Authority sanctioned that the contractual scheme made available by ABI for the stipulation of sureties to fully guarantee banking operations (omnibus sureties) contained provisions in contrast with Art. 2 Law no. 287/1990(a), which prohibits agreements between companies which have as their object or effect the prevention, restriction or significant distortion of competition within the national market or in a substantial part of it.
It is therefore necessary to determine the fate of the contracts concluded as a result of the prohibited agreement, which contain clauses of this type.
CRISIS INDICES AND HOW TO IDENTIFY THEIR WELL-FOUNDED CLAIMS
Exercising the delegation conferred on it by paragraph II of art. 13 of the Crisis Code, the CNDCEC has defined the crisis indexes and specified the well-founded claims to the recourse to which the presumption of the existence of a state of crisis in the company is triggered, with the consequent obligation of the control bodies to provide the reports (first to the administrative body and, in case of inadequate response, to the OCRI) referred to in art. 14 et seq. of the Code of Business Crisis and Insolvency.
The CNDCEC has provided that the application of the crisis indices identified to the individual business realities must be carried out in compliance with an integrated path of self-diagnosis of the state of health of the company which, presenting an “at the same time”, “tree” and “combined” structure, is aimed at facilitating a unitary evaluation and a critical assessment of the company’s performance.
ATYPICAL HETEROGENEOUS TRANSFORMATION FROM A ONE-MAN COMPANY INTO A SOLE PROPRIETORSHIP
The technical-legal Commission made up of Unioncamere and the National Council of Notaries recently expressed its support for the admissibility of the conversion from a single-member company (both of persons and of capital) into a sole proprietorship, contrary to previous case-law guidelines, which had supported the view that such an operation was inadmissible.
This is a long-standing and much debated question, which has long seen doctrine and jurisprudence opposed to one other, between those who favour the principle of economic efficiency of legal acts and the principle of continuity in legal relations, and those who, instead, believe they have to conform to the typical content of the hypotheses of transformation provided for by law and the mandatory rules on the matter.