Summary of the changes introduced by Decree 59/2016: "Urgent provisions on executive and insolvency procedures and on behalf of investors in banks in liquidation".
Decree 59/2016 provides measures for the repayment of investors in the banks set in resolution in November 2015 (Banca popolare dell'Etruria and Lazio, Banca delle Marche, Cassa di Risparmio di Ferrara, Cassa di Risparmio di Chieti) and provides for some provisions for business support and to accelerate credit recovery activities.
The decree was published in the Official Gazette no. 102 of 3/5/2016.
With regard to measures aimed at supporting companies and facilitating the recovery of loans, they are divided into the following points:
1) Non-possessory securities pledge: the concept of a non-possessory pledge is introduced, thanks to which the debtor who pledges a movable asset destined for the company's business -with exclusion of registered movable goods- can continue to use it in the production process .
Previously, however, the debtor lost the use of the property subject to pledge.
At the same time, a register of non-possessing pledges is established at the Revenue Agency; the registration of the pawns in said register makes them "opposable to third parties and in bankruptcy proceedings".
2) Pact marciano: for the financing contracts entered into between financial institutions and companies, the faculty to resort to the so-called "marciano pact" is introduced:
• in the case of a loan with a guarantee of an immovable property, the parties can enter into a transfer contract which becomes effective only in the case of default by the debtor; the residence of the entrepreneur is excluded from this discipline;
• there is a default when the non-payment continues:
- for more than six months after the expiry of at least three monthly installments;
- in the case of a single repayment or with a repayment period of more than one month (eg quarterly installments), the default occurs after six months from the expiry of an unpaid installment;
• The transfer value must be determined by a third party, according to a procedure defined between the parties:
- if the value of the asset at the time of the transfer is greater than the residual debt, the creditor corresponds to the debtor the difference between the two values;
- if the value of the asset is less than the residual debt, the debtor will not have to pay anything to the creditor.
3) Provisions regarding forced expropriation: among the main changes:
• the decree modifies the content of the attachment deed, which pursuant to art. art. 492, paragraph 3, c.p.c. in addition to the other requirements, the warning textually states: "pursuant to Article 615, second paragraph, third sentence, the opposition is inadmissible if it is proposed after the sale or assignment in accordance with articles 530, 552 and 569, unless it is based on facts that have occurred or that the opponent demonstrates that he was unable to propose it promptly for reasons not attributable to him. ';
• as a consequence the art. 615 second paragraph of the Italian Civil Code;
• in the second paragraph of Article 532, the second and third periods are replaced by the following: "The judge also establishes the total number, not more than three, of the sales experiments, the criteria for determining the relative reductions, the modalities 'to deposit the sum derived from the sale and the final deadline not exceeding six months, at the end of which the person in charge of the sale must return the documents in the registry. When the deeds are returned in accordance with the previous period, the judge, if there are no requests pursuant to Article 540 bis, provides for the early closure of the executive process, even when the conditions set out in Article 164 bis of the provisions implementation of this code ".
4) Credit recovery procedures: with regard to the procedure for an injunction, the art. 648, paragraph 1 of the Italian Civil Code, second sentence, pursuant to which the judge must order the provisional execution of an injunction order for the amounts not contested.
5) Amendments to the bankruptcy law: envisaged the possibility of using telematic technologies for hearings and for meetings of creditors and the revocation of the receiver who does not respect the deadlines set for the procedure.
6) Register of executive and insolvency procedures: a digital register of executive and insolvency procedures is set up at the Ministry of Justice, which must all be digitized.