Il nuovo “Codice della crisi d’impresa e dell’insolvenza”: questioni penali

On 14 February 2019, the Legislative Decree 12 January 2019, n. 14, implementing the Delegated Law 19 October 2017, no. 155 and introducing the new “Code of the business crisis and insolvency” was published in Official Gazette.

In application of the transitional provisions, the regulatory measure (hereinafter only “Code”) will enter into force 18 months after its publication, with the exception of certain provisions (including the express repeals in the criminal sector), which are deemed to be in force, 30 days after the publication of the Code.

The Code arises from the need for a comprehensive reform of the Italian Bankruptcy Act (Royal Decree no. 267 of 16 March 1942) and of the regulation of over-indebtedness crises which is dated 2012. Thus, the purpose of the reform is to ensure the rationality of the provisions on insolvency, affected over the years by various amendments, especially in the civil sector, which involved serious problems of legal uncertainty in its application.

However, the Delegated Law no. 155 of 2017 - and thus the Code - has not taken into account a comprehensive reform of the insolvency law criminal matter.

Below is an overview of the key amendments of criminal relevance.

§  Shifting of bankruptcy and other insolvency offences regulation, to Title IX of the Code, concerning “Criminal provisions” (Secc. 322-347 of the Code).

The Italian Bankruptcy Act is not repealed, but shall continue to be applied to bankruptcy conducts committed prior to the entry into force of the Code and not yet definitively judged. As also specified in the Decree Explanatory Report, in the lawmaker’s intention the Code will not lead to any abolitio criminis.

§  Elimination of textual references to “bankruptcy” and “bankrupt” in criminal provisions, respectively replaced by the different expressions “judicial liquidation” and “entrepreneur in judicial liquidation”; all this “without prejudice for the continuous application of the offence” (as specified by Delegated Law).

§  Introduction of new “criminal reward measures”.

Section 25 of the Code provides for the application of “reward measures” for entrepreneurs proceeding to the timely reporting of the crisis:

·       the cause of impunity when the damage caused is particularly “tenuous” (special form of the similar cause of impunity for triviality for the offence provided for in Section 131 bis of the Italian Criminal Code), applying to all cases of bankruptcy, provided that the debtor has promptly activated the warning procedures for the assisted settlement of the crisis);

·       the mitigating circumstance with particular effect, which applies even if the conduct does not cause a particularly “tenuous” damage and when at the opening of the crisis or insolvency settlement proceedings, the value of the assets offered to creditors, exceed one fifth of the amount of the debts.

§  Relevance of “group compensatory advantages”.

In criminal matters, the existence of a group of related companies involves the fundamental issue on configurability of the crime of fraudulent bankruptcy (under Secc. 216 e 223 of the Italian Bankruptcy Act) having regards to the distractive conduct of intra-group transactions.

As a consequence of the Reform Sec. 2497 of the Italian Civil Code - which regulates the exemption of liability in the case of so-called compensatory advantages within the group - shall apply to bankruptcy offences by express legislative provision (Sec. 290 of the Code).

This is a conclusion already stated by Supreme Court case-law prior to the Reform (ex multiis see Court of Cassation, decision 20 April 2017, no. 18987). This applies even if the current legislation provides for the exemption of criminal liability in case of “compensatory advantages”, only for the crime of “Patrimonial infidelity” (Sec. 2634 of the Italian Civil Code, see 3^rd paragraph: “However, no crime is committed if the prejudice suffered by the company or by the group is offset by other benefits, whether already obtained or reasonably obtainable, that are the result of the company’s participation to the group”).

§  Introduction of new duties for directors in Sec. 2086, paragraph 2, of the Italian Civil Code (as amended by Sec.  374 of the Code), additional to the other duties already set forth in Sec. 2392 of the Italian Civil Code.

Sec. 2086 of Italian Civil Code (as amended by the Code) requires directors to establish an appropriate organizational, administrative and accounting structure proportionate to the nature and size of the company. This obligation could be also relevant from the perspective of Legislative Decree no.231/2001 (concerning the administrative liability of companies resulting from offence), since the director may be liable for having failed to evaluate the need of setting up company controls aimed at preventing the commission of the crimes also provided for by the Decree.

On the criminal side, directors may be personally prosecuted for bankruptcy crimes, in case of negligence in fulfilling their fiduciary duties (e.g. if being aware of prejudicial acts, they refrain from preventing them or from acting in order to reduce their negative consequences).

Therefore, the new provisions could result in the extension of the cases of criminal liability of directors in relation to the offences of bankruptcy, for having not prevented the event of the insolvency in breach of their duties (under Sec. 40, paragraph 2, of the Italian Criminal Code).

§  Reinforcement of legal duties (and so called “posizione di garanzia”) of corporate control bodies and auditors, by introducing a reporting obligation in the event of “well-founded benchmarks of crisis” as defined in Sec. 13 of the Code (Sec. 14 of the Code).

The report (which must be motivated in writing) shall be sent to the directors: they will be required to report on the solutions identified and the initiatives taken in order to resolve the crisis. In the event of omitted or inadequate response from directors, the control bodies and the auditors shall immediately be required to inform the OCRI (“Organismo di Composizione della Crisi”, the new body established at each Chamber of Commerce, with the task of receiving alerts and managing the crisis and the relative composition phases), providing all the necessary information for the relevant determinations, also in derogation of the provisions on professional secrecy under Sec. 2407, 1^st paragraph, of the Italian Civil Code.

The timely reporting (to the directors or, if any, to OCRI) is a cause for exemption from liability in the event of criminal charges for complicity in bankruptcy offences.

§  Introduction of the new offences “False disbursement procedures” and False statements by the members of OCRI” (respectively, under Secc. 344 and 345 of the Code).

The offence of “False disbursement procedures” is punished with:

                i.         imprisonment from 5 months to 2 years and a fine ranging from 1.000,00 to 50.000,00 euro, if:

a.      the false conduct committed by the debtor in order to obtain access to the procedures for the settlement of the over-indebtedness crisis or to the so-called minor composition (paragraph 1);

b.      the false conduct committed by the debtor is in the context of the new disbursement procedure pursuant to Sec. 283 of the Code (paragraph 2);

c.      the member of the crisis settlement body who causes damage to creditors by omitting or refusing without justified reason an act of his office (paragraph 4);

               ii.         imprisonment from 1 to 3 years and with a fine ranging from 1.000,00 to 50.000,00 euro, if the false declarations are made by a member of the crisis resolution body with regard to the entity of the debtor's assets.

The offence of “False statements by the members of OCRI” – sanctioned with imprisonment from 2 to 5 years and a fine ranging from 50.000,00 to 100.000,00 euro – punishes the conduct of OCRI members who make false declarations or omit to report relevant information regarding the truth of the debtor’s situation who intends to submit an application for approval of the debt restructuring agreements or for the opening of  a “concordato preventivo”.