no. 10885/2021, published on 23 April 2021, the Supreme Court forwarded to the
First President, for possible assignment to the Joint Sitting, the documents
relating to the issue concerning the pre-deductibility (preference over
creditors) of the claim of a professional who carried out his work to access a
composition with creditors, which was not successful.
case, the professional, by rejecting the statement of liabilities - in which
his claim did not appear - requested that the amount claimed against the
company for having supported the drafting of a blank composition agreement,
subsequently abandoned by the company concerned, be entered in the statement of
liabilities in pre-deduction (pursuant to Article 111 of the Bankruptcy Law) by
virtue of the instrumental nature of the claim as well as its functional link
with the composition procedure.
petition was rejected by the Court of First Instance, the professional appealed
to the Court of Cassation, which, at the request of the Public Prosecutor’s
Office, sent the documents to the First President of the Court of Cassation.
order noted the lack of a clear guideline on this point that would allow a
clear definition of when pre-deductibility can be attributed to a
professional’s claim arising in the course of an unfinished procedure. In this
respect, there are two main theses espoused by case law, which tend to
understand the concept of functional nexus differently, and which have
contributed to a lack of clarity on this issue.
(see Cassation no. 16224/2019; Cassation no. 1182/2018; Cassation no.
22450/2015), in interpreting the functionality of the professional’s activity
in a broad sense, takes into account only the instrumental nature of the
professional’s work, on the basis of ex ante scrutiny and regardless of
the actual contribution made in facilitating the procedure. The second, which
is more restrictive, considers the functional link established by means of ex
post evaluation based on the tangible utility of the activity carried out
for the bankrupt
company’s estate (thus: Cassation no. 13596/2020;
Cassation no. 30694/2019; Cassation no. 33358/2018), or the utility for
creditors (in this sense: Cassation no. 8534/2013).
there is also the strand of case law that recognises pre-deductibility based on
the stage of development that the composition procedure has reached (see
Cassation no. 639/2021; Cassation no. 640/2021; Cassation no. 641/2021).
context therefore requires clarification from the Joint Sitting, which will
probably be called upon to exercise its nomophylactic function on the subject.