GESTIONE UNITARIA E DISTRIBUZIONE DEL VALORE DEL GRUPPO NELLA LIQUIDAZIONE GIUDIZIALE

This thesis addresses the problem of continuation of business in the liquidazione giudiziale di gruppo, a new insolvency procedure with liquidation purposes introduced by the Codice della crisi d’impresa e dell’insolvenza (d.lgs. 12 gennaio 2019, n. 14). In particular, the aim of the work is to understand which principles and rules should guide the management of the group in any case in which companies belonging to a “centralized” group are admitted to the procedure and continuation of business is ordered pursuant to art. 211 of the Codice della crisi.
Starting from these premises, the thesis focused first – in Chapter I – on the recognition of all the different models of group insolvencies’ management arousing from the international scenario, in order to place the new liquidazione giudiziale di gruppo within the paradigms of substantial or procedural consolidation.
Having said this, the research question was then formulated: that is to say, the possibility that the opening of the liquidazione giudiziale di gruppo, while undoubtedly determining the dissolution of the power of direction exercised by the parent company, nevertheless entails the attribution to the curatore of a new and autonomous power of group management, to be exercised in accordance with the purposes and principles of insolvency regulation: a power, in particular, which could involve the planning and implementation of (lato sensu) “intra-group financial assistance”, i.e. the mutual provision of resources instrumental to the continuation of group business.
If this is the research question, it was then necessary to confront first with the principle of autonomia delle masse attive e passive of the group companies: a principle, in fact, which – if applied in a rigorous manner – could fundamentally prevent the circulation of resources between the companies admitted to the procedure. Nonetheless, a correct interpretation of the principle in question made it possible to relegate its applicative scope to the phases of ammissione del passivo and distribuzione dell’attivo only, without resulting in any effect of “crystallization” of assets: this on condition that the outflow of resources in the interim phase of the procedure is assisted by the reasonable forecast of a «prospective return of value» in the final stage of the liquidation.
Once these basic theoretical premises have been established, the analysis concerned – in Chapter II – the powers of the curatore with regard to the responsible assets, and this in the double perspective – on the one hand – of the retrospective “reconstruction” of assets, if damaged before the opening of the liquidazione giudiziale di gruppo, and – for the other – of the “management” of assets in a propulsive key: this, in particular, in order not only to the preservation of a present value, but also – as has now been established thanks to the studies on management of joint-stock companies in liquidation – to the realization of a future value.
Following this last line of investigation, it became necessary to analyze the role of the liquidation program in group procedures, and this both in terms of the relative methods of approval, as well as in terms of its possible contents. Indeed, it has not gone unnoticed how the Codice della crisi d’impresa e dell’insolvenza has in general implemented the “corporate” powers of the curatore, through the provision of an unprecedented legitimacy (to plan, and consequently) to perform independently deeds and transactions relating to the financial and organizational structure of the company. Powers which, if transposed into the liquidazione giudiziale di gruppo, could allow for deep restructuring of the insolvent group, instrumental to the pre