The Court of Padua (15 June 2017) ruled that, in the procedure provided by Legislative Decree No. 270/1999, the three-year statute of limitations period provided by Art. 69-bis of the Italian Bankruptcy Law starts from the declaration of insolvency and not from the authorization of the plan for the sale of the business
The Extraordinary Commissioner sued a bank to revoke payments made to the bank in the «look-back period». The defendant objected that the action was barred because the three-year statute of limitations period provided by Art. 69-bis IBL had already elapsed. The Extraordinary Commissioner replied that in the extraordinary administration procedure such period starts from the authorization to the plan for the sale of the business, rather than from the declaration of insolvency (as it is the case in the bankruptcy proceeding), due to the fact that the authorization is a condition to bring the action.
There is a lack of coordination between the IBL and the specific rules provided for the extraordinary administration procedure. In particular, Art. 49 of Legislative Decree No. 270/1999 provides that claw-back actions shall be filed by the Extraordinary Commissioner under the condition that the Ministry authorises the sale of the business (instead of a reorganization leading to the company’s economic and financial recovery, which is the alternative scenario provided by law). Art. 49 recalls widely the claw-back provisions in the IBL and it is not clarified whether it includes also Art. 69-bis IBL, although this is not considered as a real issue. What is instead uncertain is when the term starts running. On one side, it has been pointed out that the dies a quo for the claw-back actions could not start before the Ministry’s authorization, as such authorisation it is a condition for bringing the action. On the other side, it has been emphasized that the same Art. 49, second paragraph, provides that «the terms provided by paragraph 1 shall be calculated from the date of the declaration of insolvency».
The decision of the Court
The Court of Padua – stressing the need to protect the third parties’ interests not to be exposed sine die to claw-back actions – ruled that the three-year statute of limitations period provided by Art. 69-bis IBL starts from the declaration of insolvency. In this regard, the Court supported its decision quoting its own precedent (Judgement No. 2851/2015) as well as that of the Court of Naples of 27 March 2014.
There are further arguments in support of the two alternative solutions. On one side, there would be an unjustified difference between the Receiver of bankruptcy procedures and the Extraordinary Commissioner. The latter would have, as a matter of fact, a shorter term to file claw-back actions. On the other side, this is largely counterbalanced by the consideration that otherwise third parties could be exposed sine die to the risk to be summoned for claw-back, due to the fact that it is absolutely unpredictable whether and when the Ministry would take the decision to authorise the plan to sell the business. In the difficult balancing of the conflicting interests of the insolvency procedure and of third parties, it seems preferable to weigh on the latter side. Certainty in legal relationships is a priority, which inspires the very same provision of Art. 69-bis lBL and this leads to refuse an interpretation that would expose third parties to the claw-back risk for an indefinite period. It should also be emphasised that the term provided by Art. 69-bis IBL is referred to a specific kind of statute of limitations, according to which the fact that a right could or could not be exercised it is not relevant.