Protective measures and “blank” composition with creditors: decisions of the Court of Arezzo

The arrest under comment originates from a so-called “reservation” application for composition with creditors under Article 44 CCII filed by the applicant company before the Court of Arezzo.

At the same time as the application under Article 44 CCII, the appellant had also requested the application of protective and, in the alternative, precautionary measures - functional to the continuation of negotiations and the filing of the so-called. “full” composition agreement - which took the form of: i) the prohibition on the part of creditors to continue or initiate enforcement actions (in particular against ADER); ii) the confirmation of the suspension of all statutes of limitation and forfeiture as well as the impediment to the filing of the judgment opening the judicial liquidation; iii) the prohibition on the part of a specific creditor to refuse to perform the lease agreement, as well as to initiate eviction proceedings and/or to anticipate the expiration of the lease agreement.

These are so-called typical protective measures, with the exception of the request in sub. iii), which, on the other hand, affects the negotiating relationship, in fact anticipating a possible effect governed by Art. 94 bis CCII headed “Pending Contracts”.

The effect that the aforementioned measure could have produced if it had been granted was the subject of analysis by the Court of Arezzo in the decision under comment, which, on this occasion, examined on a broad scale the regulation of protective and precautionary measures in the case of an application filed under Article 40 CCII or an application under Article 44 CCII.

According to the Court of Arezzo, in fact, in the case of a so-called “reservation” application under Art. 44 CCII, the perimeter of protective measures is narrow and coincides with the so-called typical measures under Art. 54, para. 2, first and second sentences of CCII, being instead excluded the “further temporary measures to prevent that certain actions of one or more creditors may prejudice...the successful outcome of the negotiations” referred to in the third sentence of Art. 54, para. 2 CCII.

Such measures, in fact, since they may affect the negotiating relationships between debtor (claimant) and creditor, can only be granted in the case of an application for access to a crisis and insolvency regulation instrument under Article 40 CCII. And this, is also inferred from the systematics of the CCII which, in fact, in the case at hand, places Article 94 bis CCII in the Section dedicated to the rules governing the so-called “full” arrangement procedure.

On these grounds, the Court of Arezzo granted the protective measures under (i) and (ii) by setting a term of 75 days in duration and rejected the request under (iii).