The Legislative Decree No. 118/2021 (converted into Law No. 147/2021 – Urgent measures on business crisis and corporate restructuring) introduced the instrument of “negotiated composition for the settlement of the business crisis”, aimed at enabling entrepreneurs to benefit from a restructuring process that allows them to continue operating before any prospect of recovery is lost.
The contribution explores the legitimacy of access to the negotiated composition procedure by insolvent entrepreneurs, in light of divergent interpretations found in legal doctrine and judicial decisions.
This tool, introduced by the legislator in line with the provisions of Directive (EU) 2019/1023, is designed to offer the entrepreneur a pathway focused on negotiations with stakeholders involved in the restructuring process (including creditors, suppliers, and employees), prior to the commencement of formal insolvency proceedings.
The central role of negotiations is underscored by the appointment of an independent expert, whose task is to facilitate such negotiations and to support the conclusion of any potential agreements (Article 4, Legislative Decree No. 118/2021).
The entrepreneur retains control of the business, subject to certain safeguards in favor of the other parties involved (Article 9, Legislative Decree No. 118/2021).
Finally, in keeping with the concept of this instrument as a pre-insolvency, non-judicial proceeding, an ancillary intervention by the judicial authority is envisaged. This allows the entrepreneur to operate in a protected environment, through the application of protective measures over the company’s assets or the adoption of precautionary measures necessary to complete the negotiation process (Articles 6 and 7, Legislative Decree No. 118/2021).