Commentary on Order No. 9657 of 2024: Coercive Collection of Subsidized Loans

The recent Order No. 9657 of April 10, 2024, issued by the Court of Cassation, offers an important interpretation regarding public support measures and the possibility of credit recovery by the manager of the Guarantee Fund for Small and Medium-sized Enterprises. The ruling addresses crucial issues, such as the patrimonial liability and the subrogation right of the Fund's manager, outlining a regulatory framework that may have significant repercussions for the parties involved.

The Public Nature of the Restitutionary Right

According to the order, once the lender has been satisfied, the manager of the Guarantee Fund acquires a privileged restitutionary right of a public nature. This right is no longer aimed at recovering the common law credit arising from the original financing, but focuses on reclaiming public resources allocated to the Fund. This implies that the manager can undertake coercive recovery actions even against third-party guarantors.

Public support measures provided in the form of public guarantee concessions - Credit of the Fund manager who has satisfied the lender - Article 8-bis of Legislative Decree No. 3 of 2015, converted by Law No. 33 of 2015 - Enforcement recovery proceedings - Applicability to third-party guarantors - Existence - Basis. In the context of public support measures provided in the form of public guarantee concessions, the manager of the Guarantee Fund for Small and Medium-sized Enterprises, pursuant to Law No. 662 of 1996, who has satisfied the lender, subrogating to it, acquires a privileged restitutionary right of a public nature, no longer aimed at recovering the common law credit originating from the initial financing, but rather at reacquiring public resources for the Fund's availability. Consequently, the coercive collection procedure for so-called subsidized loans, pursuant to Article 17 of Legislative Decree No. 146 of 1999, is applicable to it, even against third-party guarantors, pursuant to Article 8-bis, paragraph 3, of Legislative Decree No. 3 of 2015, converted with amendments by Law No. 33 of 2015, even if the credit arose before the entry into force of the provision, given that such provision is not of authentic interpretation, nor innovative, but merely repetitive and confirmatory of the regime already in force.

Implications for Third-Party Guarantors

The order clarifies that the possibility of exercising coercive collection also extends to third-party guarantors. This is a crucial point, as it implies that even those who have provided guarantees for a subsidized loan may be subject to the same credit recovery procedures. The consequences of this interpretation can be significant, especially for small and medium-sized enterprises that have availed themselves of these guarantees in the context of public financing.

• Coercive collection applicable also to past credits.
• Subrogation right of the Fund manager in case of satisfaction of the lender.
• Potential negative impact on the finances of third-party guarantors.

Conclusions

In summary, Order No. 9657 of 2024 highlights a fundamental aspect of restitutionary law, granting competent authorities the ability to recover public resources through coercive collection procedures. This not only clarifies the rights of the Guarantee Fund manager but also underscores the responsibilities of third-party guarantors, creating a regulatory context that could influence the future choices of economic operators. For those operating in the sector, it is essential to stay informed about these dynamics to avoid surprises and adequately manage the risks associated with subsidized financing.