Business crisis, protective measures do not cover guarantors
And reporting to the risk centre should also not be excluded
Key points
The protective measures of the asset envisaged by the target="_self" href="https://ntplusfisco.ilsole24ore.com/art/niente-cram-down-fiscale-concordato-fallimentare-AHZiRPTB">Crisis Code do not avoid the enforcement of the guarantors and the reporting to the Banca d'Italia's central risk centre. These are the conclusions reached by the court of Naples with the order of the seventh civil section of 4 February, which upheld the grounds of appeal of Unicredit against a different decision of the same judicial office.
The role of the entrepreneur
The ordinance observes that "the text of the provision of Article 18 paragraph 1 of the Crisis Code is clear in attributing to the entrepreneur alone (and not also to his guarantors) the power to request the enactment of protective measures of the assets and the systemic coordinates enunciated lead to the conclusion that they must inevitably be aimed at restructuring the debts and overcoming the economic-financial difficulties of the company".
The perimeter
The Court goes on to state that the extension of protective measures with respect to assets that do not properly fall within the legal sphere of the debtor (in the sense that the latter is not the holder of rights in rem over the same) is permissible, but only on condition that they are in any event functional to the operation of the business. Consequently, the protective measures may not extend in a global manner also to the assets of third party lenders of general guarantees, such as the guarantors of the principal debtor entrepreneur, but may possibly concern only specific assets of which the guarantors are holders when they are functional to the exercise of the business activity.
Good faith
Corroborating this conclusion is also the very requirement not to disproportionately compromise theinterests of creditors, an effect of the obligation of good faith existing between the parties in the conduct of the negotiations for which the protective measures are functional.
The risk centre
With regard to the reporting to the risk centre, the debtor company had emphasised the necessity of the exclusion in order to avoid that the inclusion of its name could lead to the revocation of existing credit lines or jeopardise the possibility of accessing new finance and, consequently, make the path to recovery more difficult.
