Independence of the Certifier in Composition with Creditors: Analysis of Order No. 20059 of 2024

The Court of Cassation, with order no. 20059 of July 22, 2024, addressed a topic of crucial relevance in the context of insolvency proceedings, namely the independence of the certifier in composition with creditors. This decision is part of a complex regulatory framework and requires careful analysis of the subjective requirements provided by the bankruptcy law and the civil code.

The Regulatory Context

Italian bankruptcy law, particularly articles 67, paragraph 3, letter d), and 161, paragraph 3, establishes the admissibility criteria for composition with creditors. The independence of the certifier is fundamental to ensuring the transparency and correctness of the procedure. The Court clarified that the certifier cannot have relationships with the debtor that could compromise their impartiality. This is of particular importance, as non-independent certification activity can undermine stakeholders' trust in the insolvency proceeding.

The Ruling and Its Impacts

Certifier - Subjective requirements - Independence from the debtor - Symptomatic hypothesis under articles 67, paragraph 3, letter d), bankruptcy law, and 2399 of the Civil Code - Content - Limits - Case law. In terms of admissibility of composition with creditors, the professional designated pursuant to art. 161, paragraph 3, bankruptcy law, does not possess the independence requirements under articles 67, paragraph 3, letter d), bankruptcy law, and 2399 of the Civil Code, when they have had any relationship with the debtor, whether ongoing or intended to be concluded over time with the performance of independent work, either in existence at the time of filing the composition application, or concluded at an earlier time, provided it was carried out within the five years preceding the date of appointment. (In this case, the Supreme Court quashed the appealed decision, which, by limiting the presumption of non-independence to cases of continuous activity carried out in favour of the applicant entrepreneur, had considered irrelevant the previously conferred task to the certifier to prepare a sworn appraisal, as it was a one-off performance).

The Court quashed a previous decision, emphasizing that even a one-off task falls within the situations that can compromise the certifier's independence. This aspect is crucial as it broadens the scope of the rules concerning independence, suggesting that every relationship, even if episodic, must be carefully considered.

Conclusions

In summary, order no. 20059 of 2024 represents a significant step in defining the independence requirements for certifiers in composition with creditors. Professionals in the sector must pay particular attention to these requirements to avoid compromising the validity of their certifications and, consequently, the admissibility of the composition itself. The clarity provided by the Court of Cassation in this context is an important reference point for the legal and financial world, which must always ensure maximum transparency and correctness in insolvency proceedings.