IL CONCORDATO PREVENTIVO DI GRUPPO IN CONTINUITÀ AZIENDALE: GARANZIE PROCEDIMENTALI E OPPORTUNITÀ CONTENUTISTICHE

The purpose of this research is to analyze the new provisions regarding the corporate group composition with creditors in business continuity (“concordato preventivo di gruppo in continuità aziendale”), contained in the new Italian Insolvency Code (“Codice della crisi d’impresa e dell’insolvenza). Firstly, attention was drawn to the general relevance of the new set of rules and to the definitions of corporate group, crisis and insolvency. Afterwards, the group proceeding was described in terms of “procedural consolidation”, which means that there is a single procedure involving multiple enterprises, and the relevance of this point of view was highlighted. Subsequently, all the phases of the group proceeding were analyzed in depth, with specific attention given to the profiles of territorial jurisdiction and legitimatio ad causam. To this end, particular attention was devoted to the Directive (EU) 2019/1023, as transposed in the Italian legal system, and it was examined how this legislative act was transposed in some European legal systems (in particular in Germany, Spain, Netherlands and France). The analysis of the procedural discipline allowed to highlight the distinctive characteristics of the group preventive restructuring procedure and the specific - and additional - interests that emerge when this procedure is compared to the composition with creditors of a standalone company. These two different but interconnected aspects were underlined to justify the burdensomeness of the group procedure. Lastly, attention was drawn to the content of the group restructuring plan, with particular regard to the possibility of intra-group transfers of assets admitted in Article 285, Paragraph 2, of the Italian Insolvency Code. This Article was considered a rule that doesn’t allow to overcome the prohibition of “substantive consolidation” and the principle of general patrimonial responsibility towards creditors. Secondly, the circumstances under which those transfers are permitted were studied in depth, and it was pointed up how the burdensomeness of the procedure has to be considered the reason of this peculiar regulation, which allows the group, differently from a standalone company, to adopt specific crisis solutions since the procedure particularly protects the position of the creditors.