La revocatoria dei finanziamenti e degli atti infragruppo nella crisi d’impresa

The aim of this article is to understand the critical moment for determining the existence of a «group» in the context of fraudulent conveyance (azione revocatoria) related to financing operations under Italian insolvency law. Initially, it was essential to assess the definition of «group» as provided by the Italian Corporate Crisis and insolvency Code (CCI) and to examine its relationship with the concept of «direction and coordination». Secondly, the importance of the «time factor» was explored, considering the initiation, termination, entry, and exit of a corporate entity from a group, with potential insights from public records in the Register of Companies (Registro delle Imprese). Specifically, by highlighting the literal content of the rules governing fraudulent conveyance within groups and being mindful of the need to interpret them reasonably to prevent the proliferation of elusive and abusive transactions, this research argues for the non-relevance of exiting the group after the prejudicial act. Conversely, operations conducted before the company joins the group are deemed non-revocable. Lastly, an analysis of the rules regarding fraudulent conveyance and subordination (postergazione) is undertaken to determine whether the fraudulent conveyance under Articles 164, paragraph 3, and 290 CCI can also serve an indemnity function.