L’accesso alle procedure concorsuali nel codice della crisi d’impresa e dell’insolvenza tra pretese di uniformità e rischi di frammentazione

The Access to Insolvency and Pre-Insolvency Proceedings between Claimed Uniformity and Due Differences – The recent Italian reform on corporate crisis and insolvency intends to simplify the procedural rules in the event of a judicial outcome of the debtor's economic distress, by attempting to introduce a common initial phase for the various insolvency and pre-insolvency proceedings. The Italian enabling law no. 155/2017 has required the Government to introduce a single judicial verification procedure, to which all categories of debtor should be subjected: following this first step, the proceeding should evolve differently, depending on the established conditions (state of crisis or state of insolvency), the chosen methods (agreed or compulsory), and the pursued purposes (business conservation or liquidation), thus going to separately regulate the possible outcomes, in order to subsequently allow the opening of the various proceedings. The new Italian Insolvency Code, introduced by the Italian legislative decree no. 14/2019, implemented the general principles provided by the enabling law regarding the uniformity of the initial phase of the various proceedings in a substantially faithful manner. Moreover, the rules on the uniformity of the initial phase of the various proceedings have not been affected by any of the laws that, tumultuously, were approved in Italy from 2019 to 2022 (unless otherwise, law decree no. 23/2020 converted into law no. 40/2020; enabling law no. 20/2019; legislative decree no. 147/2020; law decree no. 118/2021 converted into law no. 147/2021; law decree no. 152/2021 converted into law no. 233/2021; law decree no. 36/2022 converted into law no. 79/2022 legislative decree no. 83/2022 implementing directive no. 2019/1023/UE). All this confirms the importance of the principle of uniformity, which however appears more properly a yearning than an acquired result: as we can infer from the analysis of Articles 40-43 of the new Italian Insolvency Code, the lawmakers had to deal with the unavoidable needs for differentiation, which ended up introducing elements of fragmentation that risk undermining the objectives that the lawmakers themselves had indicated.