Transnational insolvency law in italian-romanian experience
Daniele Vattermoli, Professore ordinario di Diritto commerciale nell’Università La Sapienza di Roma
Antonino La Malfa, Presidente Sezione Procedure Concorsuali del Tribunale di Roma
Claudio Tedeschi, Giudice presso il Tribunale di Roma, Sezione Procedure concorsuali
Angela Marinangeli, Specialista giuridico presso Presidenza del Consiglio
Nicoleta Mirela Nastasie, Insolvency practitioner
18 Settembre 2023
Cambia dimensione testo
The paper, after analyzing the so-called “multinational insolvency law” and the importance of judicial cooperation in that regime, illustrates case-laws that have concerned companies in crisis operated in the Italian and Romanian legal systems.
The objective of predictability and certainty of the rules applicable is particularly relevant and would seem to be at the basis of the efforts made so far in the international sphere in this delicate matter , given the heavy negative repercussions that uncertainty determines with respect to both the credit market  and, in a broader perspective, the economic development of nations .
b) The "pure territorialism" model, on the contrary, contemplates the opening of collective proceedings in each State with respect to which the debtor presents a certain connecting factor. These connecting factors are established by the internal rules of the relevant legal systems. They can relate to both the structure of the debtor's assets; for example, the presence in the territory of the State other than the State of origin of a secondary office or a branch or simple assets and to the concrete activity carried out by the debtor, such as the existence of transactions falling within the jurisdiction of the foreign State. Moreover, each procedure is governed by the law of the opening State and applies to the assets and creditors located or resident there, thus "shattering" the assets and liabilities into as many sub-sets as there are procedures opened against the same debtor. Finally, no form of cooperation between authorities and/or between bodies of the procedures is envisaged, which thus remain unrelated and independent of each other .
d) Given that the two “pure” models described above are of limited practical use, they were abandoned for quite a while now, as being of limited practical benefit.  More flexible models , like such as "hybrid models" are now preferred, and these merge the elements of both universality and territorialism.
d2. The second model, on the other hand, starts from the pure principle of territoriality, which, however, is tempered by the inclusion of rules that allow cooperation between the different authorities of the States involved in the insolvency .
Sources can then be classified on the basis of the binding or not-binding nature of the rules they give rise to.
The first category includes - in addition, of course, to the "internal" laws governing the international-private aspects of insolvency, which in many cases are inspired by the so-called “droit mou”  - only those concerning the European Union (the aforementioned Regulation no. 848/2015).
B. a) The Regulation no. 848/2015 applies to insolvency proceedings, regardless of whether they are reorganisation or liquidation proceedings, whether negotiated or compulsory, which involve the total or partial divestiture of the debtor or the control of the management of the assets by a judge: it also applies to proceedings that simply provide for a temporary suspension of executive actions to allow negotiations between creditors and the debtor, provided that measures to protect the former are contemplated.
On the other hand, the Regulation does not apply to insolvency proceedings relating to banking, insurance, securities brokerage and collective investment companies, for which ad hoc rules are set out, in consideration of the interests involved.
Also in this recast version of the Regulation, in fact, transnational insolvency with a European dimension is regulated by adopting the theoretical model of limited universality, foreseeing a main procedure, opened in the place where the company has the COMI and whose effects are immediately produced throughout the Union, by virtue of the automatic recognition of the opening judgement (with the only limitation of respect for public order), the applicable law being - except for specific matters, for which other connecting criteria are valid (articles 8-18) - the lex concursus; and secondary (or territorial) proceedings, which, although "subordinate" to the main proceedings, have the effect of submitting the debtor's assets in the State of the opening of the secondary proceedings to the law of the latter.
This "subordination" is essentially, though not exclusively, translated into the power of the administrator of the main insolvency proceedings, on the one hand, to request the suspension, for a limited period of time, of the operations for the realization of the assets in the secondary proceedings, when this measure is functional to the best satisfaction of the creditors both of the main proceedings and of the secondary proceedings (art. 46); and, on the other hand, to propose a restructuring plan or a composition in the secondary proceedings, in accordance with the law applicable to the latter proceedings (art. 47).
b) However, compared to the 2000 version, the 2015 version also presents several innovations , some of which are extremely important, such as the one relating to the introduction of an ad hoc discipline of the European insolvent group and the one aimed at better clarifying the concept - which also in the new structure represents a key element of the system - of COMI, defined by the doctrine as the punctum dolens of the previous Regulation .
With reference to the COMI, it is established (art. 3, par. 1), as a general rule, that "The centre of the main interests is the place where the debtor exercises the management of his interests in a habitual manner and recognizable by third parties", thus following, at least in its essential lines, Recital no. 13 of EC Regulation no. 1346/2000.
In order to facilitate identification of the COMI, the instrument of the presumption, juris tantum, that it coincides with the registered office of the company, as was already the case under Regulation no. 1346/2000; or, and herein lies the new feature, with the principal place of business of natural persons carrying out a business or independent professional activity; or, finally, with the habitual residence of other natural persons .
These presumptions, however, only operate if the registered office, main place of business or habitual residence have not been moved to another member state within the period of three (for the first two categories of debtors) or six (for the third category) months prior to the request for the opening of insolvency proceedings. In this case, the intention of the Community legislator to avoid forum shopping is clear .
The approach taken by Regulation no. 848/2015 with reference to the identification of the COMI therefore seems to retrace the decisum of the pioneering Eurofood case, in which, in fact, the Court of Justice stressed that in order to overcome the presumption of coincidence of the COMI with the statutory seat of the debtor it is necessary to provide evidence of the existence of "objective elements verifiable by third parties" (in particular, creditors), which demonstrate - according to a global and overall assessment, which takes account of all the factual elements - that the management of the debtor's interests has in fact taken place in a place other than that of incorporation .
The special exception to the presumption, aimed at neutralizing "opportunistic" shifts of the registered office in proximity to the opening of the insolvency proceedings, in accepting the indications coming from a part of the doctrine, distances itself from the orientation taken by the Court in the Interedil case, in which the judges anchored the presumption to the registered office resulting at the time of the presentation of the application for the opening of the proceedings.
c) Finally, another important innovation is that contained in art. 36 of the Regulation, which allows the liquidator in main insolvency proceedings to make a legally binding commitment towards a group of creditors which, if accepted by the latter, has the result of paralysing the opening of secondary proceedings, in fact limiting the jurisdiction of a member state with an act of private autonomy.
What is known as "synthetic secondary proceeding" thus represents a further element of the so-called negotiation law of the crisis, which is increasingly occupying space in the European insolvency or quasi-insolvency system, as the use of insolvency protocols shows (infra, § 5).
Through this "commitment" the opening of a secondary procedure is therefore avoided, with the obstacles that it could represent for the efficient "unitary" management of the debtor's assets, while protecting local creditors, who are granted the same treatment they would have received if that procedure had been opened.
Cooperation between authorities and/or technical bodies in national proceedings against a single debtor or company which is part of the same group can be achieved through different instruments and can take any form.
It may consist, for example, in the possibility of communication and exchange of information between the liquidators and between the judicial authorities of the various proceedings involved ; in the setting up of simultaneous hearings ; in the appointment of legal representatives to act as intermediaries between the bodies of the proceedings in order to eliminate language barriers ; in the setting up of mutual obligations of conduct between the authorities and/or representatives of the proceedings as regards the administration, in the broad sense, of the assets and the supervision of the economic activity of the company in crisis ; in the authorization by the judicial authorities to the technical bodies of the procedures to agree on the solution of certain issues relating to the development of the procedures (such as, for example, and in the case of an insolvent multinational group, that relating to the analysis of the documentation relating to the implementation of the directives of the holding company, with a view to a possible liability action against the corporate representatives of the parent company and/or subsidiaries), as well as to appoint a receiver to play the role of "coordinator" of the others.
This last possibility is particularly important when the insolvent group has a large number of members, facilitating the formulation and implementation of common strategies. It is not necessarily the case, however, that the pivot role is played by the insolvency administrator of the proceedings opened against the parent company: it is quite possible, in fact, that the "main" proceedings - in terms of assets, number of creditors and economic relevance of the contractual relations in progress - are those opened against an "operational" subsidiary .
Cooperation can also take the form of coordinating the administration (or supervision) of the overall economic activity of the debtor company, in the event that the activity continues despite the opening of insolvency proceedings, in particular with regard to financing following the initiation of the competition ; the preservation, use and disposal of assets; the exercise of revocation actions, which, albeit indirectly, could influence the actual conduct of the business activity. Coordination could also involve entire phases of the procedures, such as the ascertainment of liabilities and the distribution of assets (phases which, in the case of multinational groups, could be particularly delicate, with reference, precisely, to intra-group transactions); and could also concern the proposal and negotiation of "concerted" reorganisation plans .
Finally, cooperation can go so far as to allow the judicial authority to adopt a "coordinated" act (with the foreign authorities) for the appointment of the representative of the insolvency proceedings which is the same for all the proceedings opened against the debtor, on condition, of course, that this person possesses the requisites required by the law of the States in which he is called upon to carry out his task .
This is a form, albeit partial, of "procedural consolidation", in theory capable of considerably increasing the efficiency of the management of the insolvent company (single or group),
eliminating, in fact, the costs, delays and difficulties that cooperation between a plurality of bodies in any case entails and facilitating the assessment of claims and, above all, the disposal of the debtor's assets as a single unit. On the other hand, however, the appointment of a single person responsible for administering the assets of various companies in the insolvent group (or the assets of the single legal entity distributed among several countries) presents several difficulties. Indeed: on the one hand, it is not so obvious that collective proceedings will be opened simultaneously in the various jurisdictions; on the other hand, and above all, it is extremely complicated for the courts concerned to coordinate their activities even before the opening of collective proceedings.
In order to achieve the desired result, the court that first declares insolvency should therefore appoint as the body of the proceedings a person who is qualified to play the same role in proceedings to be opened abroad; whereas, in order to be able to appoint the same person, foreign courts that intervene subsequently should be aware of the fact that the debtor belongs to a multinational group and that one of its components has already been subject to collective proceedings (or that the same debtor has already been subject to proceedings in another State).
In addition, in the case of multinational groups, the unitary management of assets formally belonging to distinct parties can, in this specific case, generate conflicts of interest. It is not uncommon, in fact, for the interest of a specific procedure not to coincide, or even to be in open conflict, with that of the creditors of another procedure: it is sufficient to think, for example, of any liability actions brought by the administrator of the bankruptcy of the subsidiary against the parent company, which is also insolvent; or of the avoidance action of intercompany acts; or, more generally, of any action of the administrator which may determine a shift of "value" from one procedure to another.
Up to this point, we have discussed the importance and the possible forms in which cooperation between judicial authorities or between representatives of insolvency proceedings (or between the former and the latter) can actually take place.
However, there is a tool, increasingly used in international practice, which, if adopted in the domestic legal system, renders superfluous the transposition, through specific norms, of the provisions or recommendations which, in the texts of hard and soft law respectively, contemplate the individual measures of cooperation.
A. The reference is to the so-called agreement on cross-border insolvency (or Insolvency Protocols) , through which the parties undertake to cooperate with each other, with the aim of coordinating the conduct of collective proceedings opened against the same debtor or companies in the same group, in different jurisdictions. An instrument whose importance, as well as on a practical level, must also be appreciated on a systematic level. In fact, it can be affirmed that the current international insolvency law was preceded  and, in some way, guided in its evolution by the protocols - born, at least in their modern version , in the early 90s of the last century (Maxwell case) - which, with the passage of time, have given rise to those best practices that are now translated into many texts of uniform law .
And so it is that the protocols, in principle used essentially in common law systems, have gradually conquered the field even in those of civil law , thanks to the explicit mention of them in the soft law texts issued on the subject by the Uncitral  and, above all, the space dedicated to them more recently by the EU Regulation on insolvency proceedings (in the recast version of 2015), which makes it likely that their use will increase considerably in the near future .
In Regulation no. 848/2015, in particular, the protocols are addressed - in addition to Recital no. 49 - in articles 41, paragraph 1 and 42, paragraph 3, letter e) as regards the coordination of proceedings opened against the single debtor legal entity; and articles 56, par. 1 and 57, par. 3, lett. e) as regards multinational groups. In both cases the use of these agreements is contemplated as a means of cooperation between the administrators of insolvency proceedings, for the judicial authorities being envisaged merely "coordination of the approval of the protocols, if necessary".
B. a) First of all, it should be stated that the use of the protocols is based on the principle of comity and that, in order for cooperation through the protocols to take place, it is necessary (and sufficient) that the domestic law allows the representative of the insolvency proceedings (or other interested party, identified by the law itself) to enter into a cross-border insolvency agreement .
On the other hand, it is not necessary (although desirable) that the law allows or requires the judicial authority to approve or enforce the agreement itself .
The protocols - but the discourse can be extended, in reality, to all the instruments of cooperation - are then applied when it is economically convenient to proceed with the coordination of the procedures opened against the individual components, that is, when there is goodwill to be preserved.
b) From the point of view of the subjective structure of the agreement, the protocols can take place between the judicial authorities ; between those who are in charge of managing (or supervising the management of) the debtor's assets; between those who represent, within the procedures, the interests of creditors; and, in the hypothesis of debtor in possession, between the directors of the companies of the group in crisis .
c) As far as the subject matter is concerned, it must be said that the protocols - whose content, although the objective of "maximizing efficiency and minimizing disputes among all parties"  is constant, varies depending on the needs to be met in the specific case  - can be modelled so as to provide for the use of one or more of the cooperation tools mentioned above.
The negotiation nature of these instruments - often articulated in the procedural sequence: framework agreement/executive agreements - excludes the possibility that the relative clauses may be in contrast with the provisions of national law, especially as regards the duties and responsibilities of the person in charge of managing the insolvent assets, as well as the procedural guarantees provided to the parties concerned .
Moreover, they cannot limit the independence and authority of insolvency courts, even if they are formally authorized and/or adopted by them.
Having said this, it must be said that the agreements could have as their object the identification of the rules of conflict to be used for the determination of the law applicable to certain particular issues; the choice of the form and content of the communications between the parties and of the notifications to the parties concerned; the procedure to be followed for the verification of claims arising from intra-group transactions; the treatment of pending litigation between group companies; the division of tasks (and responsibilities), between the parties to the agreement, on matters affecting the various procedures involved (such as transactions relating to the sale of the assets of the multinational company) .
The protocols can also establish the rules to be followed and the mechanisms to be used for coordinating the reorganization plans already presented or to be presented. On the contrary, it can justifiably be said that the restructuring of a cross-border company in crisis, especially when it is structured as a group, would be very difficult to achieve without an insolvency agreement between the representatives of the various procedures opened in the various legal systems involved. In fact, it would be practically impossible to formulate a single plan or several connected and interfering plans, or to "align" the timing of the presentation of proposals and their vote, without a specific agreement between the heads of the different procedures; just as it would be impossible to proceed with indirect restructuring, that is, through the aggregate sale of the assets of the debtor company, in the absence of similar agreements .
Problems of a cross-border nature inherent in the relationships between proceedings opened and/or promoted in different EU states that have been settled and resolved in application of the provisions of EU Regulation No. 848/2015 arose in the proceedings brought before the bankruptcy court of Rome at the request of 'Blue Air Aviation S.A.', hereinafter conventionally referred to as the 'proponent'.
a) This is an airline company with its main registered office in Romania and a secondary branch in Italy; having already filed with the Bucharest court an arrangement with creditors procedure, in its pendency it requested the opening of secondary insolvency proceedings and the admission to 'secondary Concordato Preventivo' pursuant to Article 3 paragraph 2 of EU Regulation 2015/848 at the court territorially competent with reference to the place where the secondary branch is located. More specifically, the court of Bucharest, following the relevant application registered on 30 June 2020, by decree issued on 6.07.2020 had declared open the procedure of arrangement with creditors on a going-concern basis, appointing 'provisional administrator in composition with creditors'.
Before the court having jurisdiction over the secondary seat, the petitioner requested access to the arrangement procedure in the so-called “reservation form” (Concordato Preventivo con Riserva), governed by Article 161, paragraph 6, of the Italian Bankruptcy Law, which, in brief, provides for the granting of a time limit to allow the drafting of the application for the arrangement and the preparation of all the acts inherent thereto, determining, in its constancy, ex lege, the so-called automatic stay, i.e., primarily the blocking of enforcement and provisional actions and the subjection of the debtor company to limitations on its management activities (which, as far as extraordinary administration is concerned, presupposes authorisation by the court) and to periodic reporting obligations towards the judicial authority. A first aspect addressed by the court concerned the identification of the conditions under which, according to the rules set out in EU Regulation 2015/848, secondary insolvency proceedings may be opened during the main insolvency proceedings already opened in another State and the compatibility of the so-called "preventive form" with the European regulation. In this regard, it has been observed that, according to the reference legal text:
- where the court of a Member State within the territory of which the debtor's main centre of interests is situated has opened insolvency proceedings, the courts of another Member State may open other insolvency proceedings against the same debtor only if the latter has set up its own branch within the territory of their jurisdiction and, in that case, such 'secondary' proceedings must be limited to the debtor's assets located there (Article 3);
- where the main insolvency proceedings presuppose the insolvency of the debtor and these proceedings have been recognised in the other member state, there, at the time of the opening of the secondary insolvency proceedings, where these also presuppose the insolvency, its occurrence may not be reviewed (Art. 34)
- the recognition in a member state of a judgment by which other insolvency proceedings have previously been opened in another member state is a consequence of its effectiveness in the opening state (Art. 19);
- these rules apply to the public insolvency proceedings listed in the relevant Annex A to the European Regulation, including those that are provisional or that may be opened on the mere possibility of insolvency in order to avoid the emergence or cessation of the debtor's activities (Art. 1);
- in the above-mentioned Annex A, with regard to Italy, express reference is made to the composition with creditors procedure (Concordato Preventivo), the positive regulation of which is currently contained in Royal Decree No 267 of 16 March 1942, the so-called “Legge Fallimentare”;
- according to the provisions of Article 38 of the Regulation, where the court of a member state receives a petition for the opening of secondary insolvency proceedings, it must immediately inform the administrator of the main proceedings before deciding to open such proceedings, in order to allow him to exercise the powers provided for by the aforementioned provision in conjunction with Article 36;
- with reference to the type of procedure of the composition with creditors, the Italian law (Article 163) establishes that the opening of the procedure follows the admission of the relevant proposal following the filing and evaluation of the relevant plan and the necessary accompanying documentation;
- in the event that a petition is filed pursuant to Article 161(6) of the bankruptcy law, the adoption of the consequent provisional measures relating to the opening of the proceedings and to the setting of the time limit for the formalisation and filing of the application for composition with creditors or of any other application aimed at resolving the crisis and the possible appointment of a judicial commissioner should have been deemed not to be an obstacle - but rather functional - to the compliance with the supranational rules, if only considering that their pronouncement, according to the typical discipline of reference, entails a direct supervision, by the commissioner or by the court and through the monthly reports that the proponent is required to submit, of the management activity carried out during the time necessary to safeguard the proponent's assets in order to protect the creditors;
- moreover, Article 38 of the Regulation provides that, where 'a temporary stay of individual enforcement actions has been granted in order to allow negotiations between the debtor and its creditors', the administrator of the insolvency proceedings may petition the court seized for the opening of secondary proceedings to suspend the proceedings for a period not exceeding three months where 'appropriate measures are put in place to protect the interests of local creditors';
- such provision of law could have been applied with reference to the reserved arrangement pursuant to Article 161(6) of the Bankruptcy Law considering that, pursuant to Article 168, the publication of the relevant petition in the Commercial Register would have entailed, until the approval of the arrangement, the suspension of executive and provisional actions and/or the prohibition to initiate them and, therefore, the immediate appointment of the Commissioner should have been deemed useful also for the exercise of such activities in order to safeguard the par condicio creditorum;
- therefore, having ascertained the presence in the district of jurisdiction of a branch office constituted by a dependency operating with profiles of full autonomy and, in accordance with Italian law, the capacity of the applicant company as a commercial entrepreneur, a necessary prerequisite for its subjection to insolvency proceedings, by its own decree the court set the deadline for the formalisation of the application for composition with creditors, appointed a judicial commissioner for the reservation phase and, in addition, ordered the administrator of the main insolvency proceedings to be informed pursuant to art. 38 of Regulation No. 848/2015, noting that, as provided for in its subsequent Article 43, cooperation between the courts and administrators involved in insolvency proceedings, main and secondary, can be carried out 'by any appropriate means' and, therefore, nothing precluded that this could be implemented with the participatory involvement of the same proposer to whom it entrusted the execution of the relevant fulfilments.
A further moment of verification of the relationship between EU supranational sources and domestic legislation and of the reciprocal aspects of incidence and interference arose at the time of the examination of the application for composition.
It must be premised that Article 162 of the bankruptcy law allows the court, upon detecting aspects in the petition that could lead to its inadmissibility, to notify the petitioner, setting a time limit for it to proceed with the relevant additions and corrections, as well as a subsequent hearing, to verify, in cross-examination also with the representative of the Public Prosecutor's Office, whether they are persistent or eliminated.
The court noted that the proponent, among the sources of assets from which the secondary procedure could have benefited to satisfy the creditors, had also provided for 'financial support from the parent company Blue Air Aviation S.A.' for a certain monetary amount, to be disbursed in various forms and ways; moreover, since in the context of the main composition procedure for holders of unsecured claims of less than EUR 5.000,00 and for 'passenger creditors' similarly placed had been provided for payment in full, in order to ensure equal treatment for the counterparts in the secondary dependency the plan had indicated, in addition to the 30% provided for class III of their allocation, the payment, by the 'parent company', of the difference in two different tranches until settlement in full. The court observed, as a premise, that, in the present case, two provisions of EU Regulation 848/2015 were relevant, both located in Chapter III which refers to 'secondary insolvency proceedings' and, in particular, Article 34, pursuant to which '[t]he effects of secondary insolvency proceedings shall be limited to the debtor's assets situated within the territory of the Member State in which the proceedings are opened' and the subsequent Article 45, pursuant to which 'any creditor may lodge his claim in the main insolvency proceedings and in any secondary insolvency proceedings'.
On the basis of those provisions, it had to be held that the secondary proceedings were aimed at resolving the business crisis that affected the same business subject that had initiated the primary proceedings in the court of the place of the main office and whose assets were therefore to be considered as a single unit in their destination to satisfy the claims of its creditors, without any distinction being made between those belonging to the main office and those belonging to the secondary office in terms of clear opposition and mutual insensitivity.
The secondary procedure would have concerned the assets located in the territory of the State where the secondary seat is situated (and the analytical enunciation of which is provided by Article 2(9) of Regulation No. 848/2015) and could have led to the possible preferential devolution of the proceeds of their liquidation to the satisfaction of the claims of those creditors who, according to local domestic law, could have had preferred claims, without, however, this being able to entail, in the event of insufficiency, abdication or limitation of their claims, which could, in any event, have been allocated in the context of the main proceedings.
The existence, therefore, of a main office and a secondary branch in relation to which, because they were situated in different States of the European Union, different insolvency proceedings had been commenced would not have made it possible to identify, in relation to each of them, a respective debtor legal entity or mutually insensitive assets, thus correspondingly reducing the possibilities of satisfaction for the creditor whose claims had been related to only one of those branches.
That difference could, however, have been relevant for those limitations which, according to the domestic law of each of the States concerned, could have conditioned the exercise of the claims for payment, since the claim, which in the legal system of the branch enjoys a privilege in relation to the assets present there, could well not have a similar preferential ranking under the law of the State of the parallel proceedings, in which, however, the possibility of its ranking according to the relevant classification parameters could not have been excluded.
Thus, it was apparent that the proponent appeared to have considered in a legally differentiated manner, on the one hand, the party that had initiated the main composition procedure opened in Romania, and on the other hand, the party that had initiated the secondary procedure, identifying, in respect of each, different assets and corresponding debtors. Since, however, the secondary dependency does not have its own autonomous subjectivity different from that of the 'parent company', it did not appear, as a result, that reciprocal debt/credit situations could be identified that were autonomously appreciable and legally relevant, which, on the other hand, had been given prominence in the wording of the request for composition, such as to allow, as regards the ancillary procedure, the use of liquidity as if it were a financial contribution made by a third party.
In addition, it was noted that - as could clearly be inferred from Article 45 of Regulation (EC) No 848/2015, which states that 'any creditor may lodge his claim in the main insolvency proceedings and in any secondary insolvency proceedings' - the creditor in the secondary proceedings must be guaranteed treatment at least equivalent to that which he would have received in the main proceedings.
In view of the fact that the indications in the proposal in this regard were general and not specific, in order for that condition conditioning the legality of the secondary proceedings to be fulfilled, it was necessary for the offeror to have provided adequate information on the forms and methods of satisfaction that the creditors in the secondary proceedings could obtain in the main proceedings, taking into account, as regards creditors with preferential claims, the possibility or otherwise of asserting their preferential position in the foreign context, and as regards unsecured creditors, the manner and timing of the satisfaction of their claims.
This allegation was, moreover, decisive because in the main proceedings the proponent had clearly excluded Italian creditors from the proceedings as the exclusive addressees of the proposal articulated in the secondary proceedings, and such exclusion could meanwhile have been deemed not to be contrary to the European Union rules if it had not adversely affected the rights of local creditors.
The proponent proceeded with the relevant amendments to the request for composition and specified that:
- bearing in mind the legal uniqueness of the proposing entrepreneur, the assets involved in the secondary procedure would consist solely of the assets existing in the territory of the state where the dependency was located;
- in compliance with what was expressly provided for in the main Romanian procedure - which was in the executive phase following the homologation - the secondary dependency would have benefited from a liquidity contribution drawn from the same, cadenced in time, for the declared purpose of 'making the treatment offered to creditors equivalent, regardless of the country of relative residence'; furthermore, it made an analytical indication in a comparative manner of the treatment that each category of creditors would receive in each of the two insolvency proceedings (main and secondary), with reference to the nature of the claim, the possibility of its legal qualification as preferential or unsecured and the percentages and timeframes for satisfaction, giving clear evidence, as regards creditors belonging to the secondary branch, of the preference of the ancillary procedure over an alternative consideration of them in the context of the main one.
The court, therefore, declared the secondary arrangement procedure open, noting, for what is of interest herein, that:
- on the assumption of the previous opening of the main proceedings opened at the Bucharest Court, the proposer having its own secondary branch in the territory of the state, which entrenched its territorial jurisdiction pursuant to Articles 3(2) and 34 of EU Regulation No 848/2015
- the offeror's state of crisis, in the form of insolvency, had already been established in the main composition procedure and, in accordance with the provisions of the aforementioned Article 34, did not need to be reviewed in the secondary one
- the administrator of the main proceedings, with certain knowledge of the pendency of the secondary proceedings - if only considering that the relevant approved plan had provided for the devolution of liquid resources to the secondary proceedings
- had not exercised the power of 'commitment' referred to in Article 36 of the Community legislation, which, in the event, was an obstacle to the continuation of the ancillary proceedings, in accordance with the provisions of Article 38 below;
- the application for composition, in compliance with the application of the provisions of Article 34 and Article 3(2) of the said regulation, had legitimately taken as reference only the assets existing in the territory of the State, the value of which amounted to 180,000.00 euros
- the applicant had provided an adequate indication of the treatment that each creditor whose claim related to the secondary establishment could have received if, availing himself of the option provided for in Article 45 of the Community regulation, he had lodged his claim in the context of the main procedure, by means of a comparative table and by pointing out the more favourable conditions recognised in the secondary procedure, also as a consequence of the validity and effectiveness in domestic law (the rules of which, pursuant to Article 7 of the Regulation, should have been applied to the secondary procedure) of the secondary proceedings. 7 of the Regulation, should have been applied) of prelitigation causes of action that would not, on the other hand, have been admitted and applied in the main composition procedure; the proponent had pointed out that the secondary procedure provided for longer time periods for the settlement of the composition debt than those established in the main procedure (indicated therein as 18 months with the possibility of increasing them by a further 12 months for a total maximum of 30 months), noting, however, at the same time, that this was correlated with higher payment percentages than those that could have been applied in the alternative context; such prospectus, based on objectively verifiable data, was to be considered persuasive and acceptable.
The court further noted, with regard to cross-border aspects, that the request for composition had provided that the claim pertaining to the State Treasury, originally of a preferential nature, after being downgraded to unsecured status due to the absence of assets on which the legal guarantee could be enforced, as attested by a sworn expert's report, would be satisfied only partially and not in full. 182 ter of the bankruptcy law establishes that the percentage of fulfilment envisaged cannot be lower than that established for creditors with similar claims.
In the present case, however, the proposal for composition had indicated full payment for unsecured creditors for amounts not exceeding €5,000.00; this was due to the existence of a similar provision in the main proceedings opened and approved by the Court of Bucharest and was in possible conflict with the provisions established for unsecured tax credits and with the reference domestic law.
The court held that this arrangement of the composition plan, although apparently at variance with the domestic legislative provision, should be considered legitimate and correct since it was imposed by the implementation of the principle of par condicio omnium creditorum, which is the guiding principle of the European Union's rules on cross-border insolvency.
Such precepts should have been immediately applicable in the territory of the State, in compliance with the provisions of the founding treaties of the European Union (in this case, Article 288 TFEU) and, in the event of a conflict with domestic legislation, the latter could not have been used, given the prevalence of the European legislation (as also affirmed by the Court of Cassation, among others, in the judgment of 1. 09.09.2011 no. 17966); by virtue of such regulatory principles, therefore, it should have been ruled out that the provision of full payment of a class of creditors, although formally not in line with the provision of Article 182-ter of the bankruptcy law, but in line with the unitary Euro regulatory text, could have determined, in part, cause of legal unfeasibility of the arrangement transaction.
b) Currently, due to causes related to the beginning of the war between Russia and Ukraine, Blue Air Aviation has been subjected to the liquidation procedure in Romania (March 2023), while the secondary arrangement procedure, opened in Italy, has been resolved (July 2023).
B. ASTALDI Case
The Court of Rome was required to resolve another insolvency case, with cross-border implications, involving Romania. The case concerned 'Astaldi SPA', an Italian company based in Rome and operating in several foreign countries, including Romania, where in 1998 it set up a plant with approximately 600 employees, whose main object was the construction of residential and non-residential buildings.
The case, similarly to what has already been observed with respect to the 'Blue Air Aviation S.A.' case, focuses on the connection between the request promoted by Astaldi for admission to the arrangement with creditors pursuant to Article 161 of the Bankruptcy Law and the commencement of insolvency proceedings in the State of Romania, where the Italian company has a branch.
The legal context in which the application for admission to the arrangement with creditors, which was based on the company's participation in a public procurement contract in Romania, was certainly out of the ordinary.
The Italian bankruptcy court benefited from the non-opening of a second insolvency proceeding in Romania, for which the Bucharest Court ruled.
On this point, it is worth recalling the outcome of the latter judgment, which, for the purposes of identifying territorial jurisdiction, had as its main object the application of European Regulation 2015/848.
The insolvency proceedings pending before the Bucharest Court represent a tangible example of the direct application of EU Regulation 2015/848, which entered into force on 25 June 2015.
The principle contemplated by the European legislation, to which the Romanian judge referred in the Astaldi judgment, is that contemplated by Article 3(1), according to which the jurisdiction for the opening of insolvency proceedings of an undertaking belongs to the court in whose territory the centre of the debtor's main interests is located.
With this provision, the European legislator affirms the theoretical model of the 'limited universality', characterized by the identification of main proceedings, opened in the place where the company has its COMI, i.e. the centre of the debtor's interests, the place where he conducts business in a habitual manner recognizable to third parties.
The Bucharest Court came to the conclusion that Astaldi SPA has its COMI in Italy and an establishment in Bucharest, since the establishment in Romania never represented in the eyes of creditors the place where control and administration were exercised, and that the exercise of power in that place actually constituted only a part of the company's activity, whose centre of gravity is Italy.
Based on this important assumption, the Court of Bucharest, disregarding the objection of inadmissibility raised by Astaldi, initially recognized the existence of the requirements for the opening of secondary insolvency proceedings in Romania, as governed by articles 38 et seq. of the Regulation, and then closed the proceedings following the waiver by the creditors.
It is therefore clear that, in the context of the arrangement with creditors, the Court of Rome was not at all burdened by any form of restriction or limitation by the Romanian jurisdiction.
However, it is interesting to note that, given the previous opening of Astaldi's “concordato preventivo” procedure in Italy, only secondary proceedings within the meaning of Article 3(3) of Regulation No 848/215 could have been opened in Romania.
Astaldi's resistance to the hypothesis of the opening of secondary proceedings in Romania is probably attributable to the greater difficulties which the company would have encountered in managing in two different countries two separate, albeit connected, insolvency proceedings, and to the probable difficulties which it would have encountered in the continuation of the procurement contracts underway in Romania.
Coordination between the two situations, as required by European legislation, did not pose any problems with regard to the opening of the Italian proceedings for two reasons: firstly, because these were opened first in 2018 pursuant to Article 3(3) of the Regulation, so that Italy was elected as the jurisdiction for the main insolvency proceedings and, secondly, because the opening of the secondary proceedings in Romania suffered a setback following the waiver by local creditors.
It is evident that the proceedings in question represent the exact opposite of the case involving Blue Air Aviation S.A., for which the problem of cross-border coordination between proceedings proved to be more complex.
This was because Italy, in that case, constituted the secondary branch of a company with its COMI in Romania, where the main arrangement procedure had been initiated.
Indeed, in the case at hand, the coordination rules, already referred to in the Blue Air Aviation S.A. case, such as, for example, Article 38 of the Regulation, which provides that when the court of a Member State is seised of a petition for the opening of secondary insolvency proceedings, before deciding to open such proceedings, it must immediately inform the administrator of the main proceedings so that he may avail himself of the faculties provided for by Article 36 of the Regulation, have not been applied.
In this regard, see also Article 19 of the Regulation, according to which the recognition in a member state (Romania) of the decision by which other proceedings were opened in a different state (Italy) is a consequence of the circumstance that the opening of the main proceedings produces direct effects in the state of the secondary proceedings.
This case, although characterized by the non-opening of the secondary procedure in Romania, highlights in a plastic way the importance of the adoption of the European Regulation, which in any case offers legal and economic operators a framework of absolute clarity.
It seems appropriate, in this regard, to make a brief mention of a collateral case involving Astaldi SPA and an insolvency procedure initiated in Chile, the State where the multinational company had a secondary office, which was already in a state of insolvency, so much so that the Chilean creditors requested the opening of essentially bankruptcy proceedings.
This procedure would have entailed very serious economic, legal and reputational consequences for Astaldi, which asked the Court of Rome for authorization to begin negotiations for a restructuring plan involving a number of countries at risk, including Chile, where it is not conceivable to obtain recognition of an Italian composition procedure, with the consequent risk that creditors might initiate local initiatives to compulsorily collect their receivables.
The authorization, nevertheless, would have resulted in a breach of the par condicio creditorum, in favor of the Chilean creditors, who demanded payment of the entire credit in principal, with a reduction only in respect of interest.
The terms of the restructuring agreement provided for: (a) full payment of the principal portion of Astaldi Chile's receivables; (b) payment of an interest rate agreed with the creditors of no more than 6% (since it is not provided for by Chilean law that the pendency of the procedure stops the course of interest); (c) payment of 75% of the receivables and the respective interest in a period of no more than 35 months, through monthly or quarterly instalments; d) in the 36th month from the approval of the debt restructuring agreement, the payment of a single instalment representing 25% of the principal of the receivables and of the respective interest; e) in the event that the execution of new works resulted in a contingent asset for Astaldi Chile, any payment would be implemented through extraordinary depreciation.
The Court of Rome, moving from the guarantor rationale that governs the bankruptcy system, which focuses on the equal treatment of creditors in bankruptcy, authorized Astaldi to accede to the Chilean request, even though the price paid was having to submit to the requests of Chilean creditors, to the detriment of Italian creditors.
This brief reference to the Chilean situation is opportune insofar as it describes the onerous conditions that can characterize foreign contexts where the risk borne by Italian creditors is a plausible consequence of the non-recognition in loco of the effects of the Italian composition agreement, or of other domestic measures.
This makes it possible to draw a parallel with the Community context and to emphasize the importance assumed by the European Regulation, as regards the ultra-effectiveness of its provisions and the coordination function it performs within the Union's borders.
Indeed, in the Chilean context, qualified as 'at risk', there is a lack of a regulation of direct and uniform territorial application, capable of scanning the coordination between cross-border proceedings, identifying the order in which they should be initiated and, above all, protecting the par condicio creditorum. As a result, the domestic legal system is deprived of the means of defense that can stem the effects of those foreign judgments, or of those restructuring agreements, that do not recognize the effects of the composition agreement entered into in the home legal system, because, for example, it is deemed not binding, with consequent damage to the balance of par condicio creditorum and to the formation of assets.
On the contrary, in the case of Romania and all the member states of the European Union, there is a unifying regulation (the Regulation), which is directly applicable like the Treaties and self-executing directives. This is due to the cogency assumed by supranational law in the internal legal systems, with respect to which it stands in a monistic relationship, id est marked by the cession of shares of national sovereignty in view of the higher purpose that drives the European Communities.
From the hierarchical force of the regulatory provisions follows a particularly pregnant 'extensive effect' that, although in Astaldi it was very limited due to the waiver of the secondary procedure, emerges forcefully in the comparison with non-European contexts, such as that of Chile.
Returning to the practical case, it can be observed that, following the non-opening of the secondary procedure in Romania, the application for admission to the procedure pursuant to Article 161 L.F had as its focal point the company's participation in a procurement procedure precisely in Romania. The road to participation in the procurement procedure was opened precisely by the combination of the measures of the two judicial authorities and the principles affirmed by the European Regulation, which allowed the prior resolution of the legal issues that could hinder it.
In the petition filed pursuant to Articles 161, paragraph 7 and 186 bis, paragraph 4 of the Italian Bankruptcy Law, the company, already in a state of economic crisis, requested admission to the procedure in order to continue the process of awarding the tender and, in the event of a positive outcome, to sign the contract with the contracting Romanian entity, in this case the National Road Infrastructure Administration Company S.A., and justified the validity of its claims by citing as a key argument the pending public contract for a duration of 5 years.
Indeed, the subject of the public procurement procedure was the awarding of design and execution works for the Sibio-Pitesti motorway, for a significant amount that would have allowed the company to acquire a contract for the period necessary to maintain the highest category of 'SOA' certification.
According to the bankruptcy court's assessment and on the basis of the elements attached to the proposal, the formulation of an arrangement plan "in continuity" was well-founded, as it was supported by adequate financial and operational assumptions, in compliance with Article 160 of the Bankruptcy Law.
The amount of the contract in question, together with other requirements of reliability and convenience, allowed the Court to rule in favor, pursuant to Article 168-bis, paragraph 3, of the Italian Bankruptcy Law, noting that the participation in the tender appeared functional to the plan referred to in Article 161, letter e), paragraph 2, of the Bankruptcy Law.
As a corollary to the aforesaid application, a request for authorization was submitted to the Court of Rome for the signing of the procurement contract, which was granted without further communications or formalities to the Romanian court.
The overall economic and legal advantage for all the parties involved is quite evident, given that the Italian company was able to complete its participation in the Romanian tender, the Romanian government was able to take advantage of the offer of the operator considered to be the most advantageous counterparty, also in function of the rapidity of the conclusion of the operations aimed at the award of the contract.
Court cases involving failing companies operating in Italy and Romania demonstrate the importance of international cooperation in this matter, not only among insolvency representatives, but also among bankruptcy courts. The challenge, for the future, is for judicial authorities to become increasingly aware of the importance of cooperation and for bankruptcy courts to become familiar with the tools for coordinating proceedings opened against the multinational enterprise that the European legal system makes available.
Such instruments, it has been seen, include Insolvency Protocols.
In the preceding pages, the massive use of protocols in international practice has been emphasized several times; and it has also been pointed out that the instrument is particularly suitable for group restructuring and the preservation of the business continuity of the companies of the group.
From a more general point of view, it can be said that such agreements represent a further piece of the so-called "contractual law of the insolvency", which is occupying more and more space in the insolvency system, including at the European level. In this context, greater familiarity of judges in civil law jurisdictions with such coordination instruments could be the way to increase international judicial cooperation in this crucial matter.
In literature, for a definition of international (or transnational) insolvency see, for all, FLASCHEN e PLANK, The Foreign Representative: A New Approach to Coordinating the Bankruptcy of a Multinational Enterprise, 10 Am. Bankr. Inst. L. Rev., 2002, 111.
The feeling is that, at present, the coordination of hearings is a tool that can be used only in cases where the legal systems concerned belong to the same legal tradition and share a common linguistic matrix (in practice, in fact, joint hearings are almost always used on the Canada/USA axis, starting with the Everfresh Beverages case of 1995: on this point, see, for all, LEONARD, Managing Default by a Multinational Venture: Cooperation in Cross-Border Insolvencies, 33 Tex. Int’l L.J., 1998, 543). It is not surprising, therefore, that in Recommendation No. 245 of the Legislative Guide (relating, precisely, to the coordination of hearings), "may" is used - and this is the only case in which this happens - and not "should". The coordination of hearings is also provided for in Article 57(3)(d), EU Regulation No. 848/2015.