Lawmakers amended again the “Marzano” version of the amministrazione straordinaria procedure, in relation to the situation of ILVA S.p.A. based in Taranto. In particular, lawmakers extend the application to “undertakings of national strategic interest” some rules – which are also partially amended – already introduced for companies providing essential public services by Law Decree No. 134/2008 on the occasion of the insolvency of Alitalia S.p.A.
On 5 January 2015 came into force Law Decree No. 1/2015, which introduced:
- a first set of general provisions for all distressed undertakings “of national strategic interest” amending the rules of the “Marzano” version of the amministrazione straordinaria procedure governed by Law Decree No. 347/2003, and, in particular, the rules regarding the lease and sale of the business within the procedure;
- a secd set f risis secifically ccerig te istress f IA ... (a cay ased in Taranto) and “the development of the city and the area of Taranto”.
2. General Provisions
The new rules apply – as explicitly provided by Art. 1, first paragraph, of Law Decree No. 1/2015 – to companies controlling at least one industrial plant of national strategic interest (within the meaning of Article 1 of Law Decree of December 3, 2012, No. 207, converted, with amendments, with Law No. 231 of 24 December 2012, i.e. plants where no less than two hundred people are being employed since at least one year, if there is an absolute need to safeguard employment and the business.
Hereafter is a summary of the main new provisions introduced by Law Decree No. 1/2015:
- the application for admission to the “Marzano” version of the amministrazione straordinaria procedure by large companies managed by a Special Commissioner pursuant to Law No. 89/2013 is filed by the same Special Commissioner (see new paragraph 3-bis of Art. 2 of Law Decree No. 347/2003);
- the provisions allowing the Extraordinary Commissioner in charge of the procedure to select informally a purchaser of the business, in order to ensure the continuity of the essential public service provided by such company or of the operation of the plant having a strategic national interest, as well as a swift response to distress (see amendment to paragraph 4-quater of Art. 4 of Law Decree No. 347/2003);
- in the same paragraph 4-quater it is expressly introduced an option for the lease of the company as well as an additional test for selecting the lessee and the purchaser of the business (namely, better employment level guaranteed);
- it is confirmed that the sale (and lease) must be pursued at a fair market price, as determined on the basis of an appraisal: paragraph 9 of Art. 105 IBL for the sale of business units is also applicable (Art. 105 IBL provides that the purchaser may pay the price also by assuming part of the debt of the distressed company) (see amendment to paragraph 4-quater of Art. 4 of Law Decree No. 347/2003);
- rules of IBL regarding lease of business are also made applicable (art. 104-bis IBL), but the right of first refusal (usually) given to the lessee in this case is not authorised by the Judge, but by the Minister of Economic Development and the functions of Creditors’ Committee are entrusted to the Monitoring Committee (“Comitato di Sorveglianza”) (see amendment to paragraph 4-quater of Art. 4 of Law Decree No. 347/2003);
- “[A]cts and payments made pending the Special Commissioner appointment according to Law Decree No. 61 of 4 June 2013” (i.e. the Law Decree providing for “New urgent provisions for the protection of the environment, health and employment in the management of plants of national strategic interest”), as well as those “implementing the purposes referred to in Article 1, paragraph 2 [of Law Decree No. 61/2013]” i.e. “the continuation of production during the Special Commissioner appointment [...] functional to preserving the business and to allocating corporate resources in order to cover the costs necessary for operations” where the business has led to serious and significant danger to the integrity of the environment and health, are not subject to claw-back action (“azione revocatoria”) (see amendment to Art. 6 of Law Decree No. 347/2003).
The new provisions are intended to derogate (as had already happened with the amendments introduced for the insolvency of Alitalia for the companies performing essential public services) to the ordinary procedure provided by Article 54 and following of Law Decree No. 270/1999 (i.e. the procedure for the sale of the business according to the programme approved by the Ministry of Economic Development). The clear purpose is to preserve the continuity of operation of industrial plants of national strategic interest as well as employment, according to a flexible procedure regardless of strict compliance to general rules requiring adequate advertising and competition among bidders for sales in insolvency procedures.
3. The provisions for ILVA S.p.A.
Here we remark only those provisions relating to insolvency procedures:
- the Extraordinary Commissioner exercises the powers given by the Decree of the President of the Council of Ministers (D.P.C.M.) of 14 March 2014 for land and site remediation plans and cannot be held responsible for actions carried out while implementing such plans;
- the Extraordinary Commissioner, after consulting the Attorney General’s Office and the Ministry of the Environment, is authorised to enter into a settlement agreement with FINTECNA S.p.A. (a State- owned company) and payments agreed are not subject to claw-back action.