On 17 November 2016, the General Manager of Assonime sent to the Productive Activities Commission of the Chamber of Deputies some observations on the bill AC n. 3671-ter and CA no. 865 on the subject of extraordinary administration of large companies in crisis, underlining the importance of this matter for the economic system and for the business world.
Assonime, in particular, points out how the current regulation of extraordinary administration, in its various variants, outlines an opaque system which negatively affects the production system and generates huge costs for the economic system. A reform of the institution that satisfies the needs of rationalization, systematic coherence of the rules and reduction of costs for the system appears fundamental.
The two bills under discussion at the Commission are not going in the right direction and appear profoundly different both in relation to the philosophy that inspires them and in terms of the substantial contents of the proposed solutions, which in both cases do not appear to be acceptable. In particular, the bill AC n. 865 aims to give the extraordinary administration procedure the function of an industrial policy instrument, extending the perimeter of application of the procedure to small-sized companies and providing for direct access to the same with a decree from the Ministry of Economic Development.
This approach contrasts with the aforementioned requirements of systematic coherence and undermines the stability of the economic system as a whole. The need for public intervention to rescue even small-sized companies appears today to have been overcome by the evolution of modern bankruptcy law, in Italy and in other European and non-European legal systems, and its usefulness is totally contradicted by the analysis of the empirical reality and by the economic data.
The bill AC n. 3671-ter, on the other hand, seems to grasp the need for a unitary regulation of insolvency, which is independent of the size of the company and which allows the extraordinary administration procedure to be coordinated with the fundamental principles and institutions of the ordinary procedure. However, this declared objective is contradicted by the substance of the principles of delegation, intended to maintain the original system of the institute in a highly unsatisfactory compromise logic and not at all innovative, with the exception of raising the thresholds for access to the procedure.
For Assonime, a real reform of the institute should aim at reabsorbing the extraordinary administration into the ordinary procedure, while at the same time trying to improve the efficiency and speed of this procedure. The principles of delegation for the reorganization of the discipline should, in particular, provide for: i) the elimination of an administrative procedure of general scope, with the provision of a single procedure for large insolvent companies initiated and managed in court, with possibility for the Ministry of Economic Development to assume the management of the procedure in the case of very large companies of significant strategic interest, on the basis of criteria established ex ante; ii) ways to guarantee the balance between the debtor's interests and those of the creditors; iii) very short and stringent terms for the judge's decision on access to the procedure in order to safeguard the business continuity of the relevant production complexes; iv) the appointment of a single extraordinary commissioner with rigorous requirements of professionalism, integrity and absence of conflicts of interest, as well as the provision of criteria and methods of remuneration of the extraordinary commissioner appropriate to the function and for consistent size brackets; iv) the provision of a suitable, but not indefinite, term for the execution of the recovery program, and the conversion of the procedure into an ordinary judicial liquidation procedure, in the event of failure to implement the plan and in any case of the absence of concrete prospects recovery of the economic equilibrium of entrepreneurial activities.
