Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 63

The decree-law n. 83/2015 introduced in Italian bankruptcy law creditors power to file for a proposal for an agreement with creditor in paragraphs 4 ff. of art. 163 l.b.l.15), but only after an application of commencement for the same proceeding by the debtor.

As part of this regulation, the Italian law maker has provided for a rule endowed with a great systematic impact16) and able to harmonise our legal system to the ones of foreign European countries that have been previously set out rules about shareholders position in restructuring proceedings.

Article 163, paragraph 5, second sentence, l.b.l.17) provides for a share capital increase with the possible exclusion or limitation of shareholder pre-emptive rights (i.e. the preferential right of subscribing new issued shares), which can result in a substantial cancellation or otherwise in a dilution of shareholders’ participation in the debtor-company. Therefore, the rule overcomes the so far consolidated, above-mentioned principle of the neutrality of insolvency proceedings on the corporate organisation, according to which insolvency proceeding affects only the assets (i.e., the estate) of the company, but not equity holders’ shares, who own the exclusive power to dispose of them.

Regarding the execution of the confirmed agreement with creditor proposed by a creditor, article 185, paragraph 6, l.b.l. provides that, in case of delay by the debtor or of lack of the acts required to fulfil the content of the restructuring plan, the court, "may appoint a judicial officer, setting out the duration of his office and giving it the power to perform all necessary acts to enforce the plan, including, if this one provides for an increase of share capital of the company, the convocation of shareholders meeting and the exercise of the vote there"18).

As already mentioned, from summer 2020 artt. 163 and 185 I.b.l. will be replaced by artt. 90, paragraph 6 e 118 paragraph 6 of the new crisis code. Even if such rules are quite similar to the previous ones, we will try to point out the differences among them.