Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 69

The evaluation of shareholders partecipation in the distressed company is a problem studied in depth by foreign law scholars who have dealt with reforms concerning shareholders position similar to the Italian one. A problem that can have important outcomes on the eventual protection of the equity holders.

Before the ESUG the valuation of the undertaking within the Insolvenzplanverfahren was an important issue for the application of the rule widespread in many paragraphs of the Insolvenzordnung, which requires to verify if creditors can receive a better satisfaction than the one expected in the Insolvenzplan (s.c. best creditor interest test) in a different insolvency proceeding.

The same matter arises, after ESUG reform, for the shareholders of the distressed company to whom, as a group that takes part of such proceedings, the rules (§§ 245, 251, 253 InsO) that provide for the comparative evaluation in the restructuring and in the liquidation (cd Vergleichklausel) have been extended. The valuation of the investments of the old shareholders has a deep impact, as previously noted, on the power to use their protection means in the insolvency proceedings and, therefore, on the fundamental issue to avoid that those remedies result in a surreptitious reintroduction of their veto power with respect to the enforcement of an agreed solution of the crisis.

In Germany, such an outcome is avoided because, pursuant to Insolvenzordnung, equity holder’s protection depends on the fact that they are able to proof that, in the absence of implementation of the plan, they would receive a better satisfaction. Such a burden is considered, in practice, impossible to be fulfilled, except in very exceptional cases, as a result of the fact that the comparison must be made with the treatment they would receive in Regelverfharen, i.e. in a Liquidationszenario, and that the evaluation standard for shareholders investments in the vicinity of insolvency is the Liquidationswert (liquidation value)72) and not the Fortführungswert (going concern value)73). Consequently, the possibility for equity holders to use a protection tool that could hinder the enforcement of the Insolvenzplan (i.e., the opposition against judicial approval of the plan) is considered purely theoretical.

Similarly, the French commercial code provides for ablative operations of the participation of old shareholders if a redressement having such a content constitutes the only serious solution to rescue the enterprise (s. art. L639-19-2 c. Comm.).

In Italian legal system the problem of the potential existence of a positive value of the net worth that could be shared among shareholders in the liquidation can be overcome in the light of the principle pursuant to which the court may confirm the agreement with creditors, the convenience of which has been contested, when it deems the credits can be better satisfied with it than in workable alternatives[(art. 180, paragraph 4, l.b.l.; and also art. 182 septies, paragraph 4, lett. c), l.b.l. for the approval of restructuring agreements with benks; after August 2020 s. art. 112, paragraph 1. I. crisis c.)]. Pursuant to Italian insolvency law in force till to 2015 this criterion was applicable only to the treatment of creditors probably because there were no rules about the position of shareholders in Italian insolvency regulation. But since the reform of 2015, due to the fact that their corporate position has become an asset of the restructuring, that principle could be applied extensively even to them74).

Regarding that, Italian law scholars state that the court must compare the agreement with creditors with the bankruptcy, which would be the "practically workable alternatives" mentioned in art. 180, paragraph 4, l.b.l.75). Morever also the bail-in discipline provides for the comparison with the treatment for the shareholders in the normal insolvency proceeding. In the light of this considerations, it seems to be right to apply the Liquidationswert criterion to verify the value of the shares of the shareholders, who challenge the agreement approved by creditors.

Moreover, such a solution was also provided by the new art. 112, paragraph 1, I. crisis c. (which will replace art. 180 l.b.l. still in force), pursuant to which the court can confirm the agreement with creditors if the creditors that have disputed the convenience of it can be satisfied better than in judicial liquidation.

Furthermore, the criterion used in foreign legal system to assess if the enterprise still incorporates a value that belongs to shareholders could be also transposed into Italian legal system: shareholders are actually "expropriated", because the company in the vicinity of insolvency still incorporate a residual value, only when the latter is able to pay all his debts76). In this regard, we cannot refer, instead, to the existence of an insolvency, as this is a financial phenomenon, so that debtor's assets can be liquidated with full satisfaction of all creditors and, notwithstanding that, a residue, which belongs to shareholders –who have the right to receive all that remains once the creditors have been fully paid– could remain77).

In the light of this premise, it can therefore conclude that articles 163, paragraph 5 and 185, paragraph 6, l.b.l. –as well as the respecting article in the new I. crisis c.– regulate a case, in which it is reasonable to assume the absence of any value for shareholders, because the vicinity of insolvency –precondition of the commencement of the agreement with creditors– does not allows creditors full satisfaction78).

Moreover, it must be considered that, in the crisis, the company estate must be "considered not only at book value (...), but at actual values by the professional appointed pursuant to art. 161, paragraph 3, l.b.l. and by the insolvency practitioner, who has to do an own assessment of company assets"79). That’why it is difficult to deem that the company embeds a residual hidden value after creditors payment.

In the insolvency system, therefore, cases where the old members may prove to be expropriated of the value still embedded in their participation appear very exceptional and, for this reason, they are not entitled to prevent the implementation of the solution of the crisis approved by creditors.