With two decisions (No. 1895/2018 and No. 1896/2018), both filed on 25 January 2018, the Court of Cassation reached opposite conclusions in the two different situations

The case

The decision No. 1895/2018 was issued in the case of a lawyer who appealed against a decision of the Tribunal of Bari which, confirming the decision of the Bankruptcy Judge in the proof of debt phase, rejected the request to allow as a super-priority claim the receivable for legal services to a company which was later declared bankrupt, with respect to the drawing up of a restructuring plan according to Art. 67, para. 3, IBL. The decision No. 1896/2018 was issued in the case of two lawyers who appealed against a decision of the Tribunal of Verona which, confirming the decision of the Bankruptcy Judge in the proof of debt phase, rejected the request to allow as a super-priority claim the receivable for legal services to a company which was later declared bankrupt, with respect to the confirmation by the Court of a debt restructuring agreement according to Art. 182-bis IBL.

The issues

In both cases the issue was the interpretation of Art. 111, para. 2, IBL, whereby super-priority is granted to claims «arisen in the occasion or functional to insolvency procedures ». The issue relates then also whether restructuring plans and debt restructuring agreements can be considered as insolvency procedures, at lest for the purposes of the super-priority of related claims.

The decisions of the Court

With the first judgment (No. 1895/2016) the Court of Cassation rejected the appeal, stating that restructuring plans cannot be considered as insolvency procedures. According to the Court, indeed, they do not show the earmarks of an insolvency procedure: the plan could entail just mere private and unilateral deeds of the company and could even not consider creditors concurring on the debtors’ assets, but only deals (such as sales of assets or new shareholders) with third parties different from creditors. With the second judgment (No. 1896/2018) the Court of Cassation, although not qualifying debt restructuring agreements as insolvency procedures, but merely stating that they are governed by the IBL, ruled that professional claims relating to the Court confirmation of restructuring plans and debt restructuring agreements pursuant to Art. 182-bis IBL can enjoy super-priority status. The Court further clarifies that to such end it is not necessary that, afterwards, an advantage is ascertained for the creditors as a consequence of the services, because the Court confirmation of the agreement already certifies that in principle.

Commentary

The Court of Cassation for the first time takes into consideration the issue of the super-priority status of claims for professional services related to restructuring plans and debt restructuring agreements. As it has been correctly pointed out by commentators (BONFATTI, La natura giuridica dei “piani di risanamento attestati” e degli “accordi di ristrutturazione” in www.ilcaso.it), the decision regarding restructuring plans raises some concerns, because the Court did not address the issue (which was raised by the claimants) regarding the relationship with the provision of Art. 67, para. 3, lett. d) IBL exempting payment of these claims from claw-back action. The decision of the Court, denying super-priority status, determines indeed a paradoxical practical outcome, in the sense that, other conditions being equal, when the claim has been paid before bankruptcy, it cannot be clawed back, whereas when the professional accepted to be paid later, although he supported the company in distress, does not enjoy super-priority. The second decision has also raised been criticized, in that the Court granted super-priority status based on the consideration that debt restructuring agreements are governed by IBL, but has not expressly qualified them as insolvency procedures. In this respect it should be pointed out that Regulation (EU) No. 2015/848 on insolvency procedures does indeed include at Annex A debt restructuring agreements, and that the latest proposal approved by the Italian Government for a new Code of insolvency and distress, although providing for a number of definitions, does not include one for “insolvency procedure”.