The CNC enters the Business Crisis Code. Implications and consequences of the novelty

by Alessandro Malerba

The art. 13 of the CCI, which provides for the OCRI (i.e. Business Crisis Composition Body established at each Chamber of Commerce) and business crisis indicators had already been the subject of a specific study by the CNDCEC - National Council of Chartered Accountants but now, these very institutes could be replaced by the CNC and by the crisis alert reports in favor of no longer of third parties but of the entrepreneur and based on the thresholds established by legislative decree 152/2021 (as already seen in Part 3).

The art. 3 of the Insolvency Directive in fact provides for the use of accessible, inexpensive and out-of-court tools in order to allow the company to verify its equity and financial situation, to open negotiations with creditors by seeking negotiated solutions to the crisis and providing alert mechanisms through reports to the entrepreneur himself. Precisely what allows the new CNC which could therefore be integrated into the CCI under Title II, becoming a stable and fundamental element within the restructuring frameworks envisaged by the Insolvency Directive.

What changes?

Compared to the current regulations, the level of quality of information that the debtor will have to make available to the creditors with whom he intends to negotiate is now greatly increased: currently article 5 of the Legislative Decree 118/2021 requires, in fact, the filing of a clear and concise report on the activity actually carried out, containing a financial plan for the following six months and the industrial initiatives it intends to adopt.

Article 17 of the CCI, third paragraph, letter b) adds a draft recovery plan drawn up according to the indications of the checklist referred to in Article 13: this is the checklist that is currently provided for in section 2 of the executive decree of the Ministry of Justice, or a sort of summary of the national principles for drafting recovery plans prepared by the CNDCEC.

The need to present a plan right from the filing has a dual objective:

1. make the task of the expert easier - called upon to immediately evaluate the existence of concrete conditions for recovery (an activity that is much more difficult with only the guidelines of the plan);
2. speed up the negotiated settlement, understood not as a procedure but as a negotiation process whose content must be clear immediately in the form of a proposal.

The integration of the CNC within the CCI will therefore reduce the number of negotiated settlements requested without a plan for creditors aimed exclusively at enjoying protective measures that are easier to manage than those provided by the blank agreements pursuant to the current article 161, sixth paragraph, of the bankruptcy law.

Further news

In addition to what has already been said, the new Title II of the CCI will also be integrated with the current articles. from 30-ter to 30-sexies of Legislative Decree 152/2021 or the reports that qualified public creditors (Treasury, INPS and INAIL) send to the entrepreneur in the presence of levels of debt exposure accrued towards them by the company - please refer again to Part 3 of thisseries of articles.

The provisions of the current art. are also confirmed. 14, paragraph 4, of the CCI, which provides for variations or revisions of the credit lines to the company in relation to communications to the corporate control bodies at the expense of the banks.

There will be many further innovations resulting from this introduction. The firm is always available for preventive analysis and the drafting and verification of financial recovery plans, in line with the new regulations.