The Supreme Court, by the judg. no. 17461/2015, sets out its position about the eligibility of a concordato preventivo proposal that provides a delayed payment of secured creditors as well as about the right of vote by the latters.

 

The decision moves from the proposal, applied by a company in front of the Rome Civil Court, providing that the secured creditors would be payed within a deadline exceeding the normal procedural time, as required for the properties’ liquidation. The Rome Civil Court stated that such proposal was not admissible, in so far as it undermined the secured creditors; thus, the bankrupt was declared.

The Court of Appeal, ruling on the claim issued by the company, confirmed that the concordato proposal was not admissible, for the related prejudice to the secured creditors; moreover, the legal conditions for the bankrupt have been fulfilled.

 

The claim in front of the Court of Cassation was based on the infringement of Articles 160 - 161 - 162 - 177 of the Bankruptcy Law (R.D. 267/1942). The applicant highlighted that, according to these provisions, the secured credits shall be paid in full; however, the same provisions do not impose any obligations about the timing of such full payment.

Notwithstanding the foregoing, the delay was inevitabile and strictly linked to the time ordinarily required for the liquidation of the property on which the creditors had securities. However, such delay would be compensated under the payment of conventional interests.

 

The Court confirmed the eligibility of a concordato preventivo proposal providing for the delayed payment of the secured creditors, even if beyond the normal procedural time. The Court also stated that such payment has to be considered as a non-full satisfactory payment and so the interested creditors shall have the right of vote in proportion to that part of credit - assessed by an expert under the report provided for in Article 160 - which will be payed in delay.

All these issues should be displayed in the plan accompanying the proposal, providing the proper analysis of the interest rates and times, in order to ensure all the several groups of creditors.

 

The meaning of the “not fully satisfaction” deserves particular attention: according to the Supreme Court this expression refers not only to the payment amount, but also to the related timing.

By this way, the full satisfaction in delay, means is equal to the not fully one: the “waiting time” seems to be a thing value, on which the interests should be calculated in order to save the eligibility of the concordato proposal….provided that the vote expressed by the creditors has been adfirmative.