Riflessioni in tema di procedure di allerta e controllo giudiziario ex art. 2409 c.c. alla luce del nuovo Codice della Crisi d’Impresa e dell’Insolvenza: una difficile convivenza?

The new Italian Code of Crisis and Insolvency (CCII), through the provision of warning instruments, aligns the Italian legal system with the EU Directive 2019/1023, anticipating its entry into force. The choice of the Italian legislator, consistently with the objectives of the Directive aimed at forecasting a framework for the preventive restructuring of the crisis, focuses on the tools of “preparation” and “early management of the crisis”, drawing new duties and corporate functions appointed to build governance of the company capable of anticipating the crisis through the construction of organizational structures suitable for the timely detection of the crisis or insolvency. At the center of the new regulatory framework there is a strengthening of the roles and functions of the audit committee which is no longer the sole recipient of a general duty of supervision over the correct administration of the company but is invested, together with the qualified public creditors , of the power to “force” the company in crisis to access to reorganization and restructuring procedures for the preservation of the going concern value or, of real insolvency, breaking away from the property that holds the control of the company and the administrators of their expression. The organization and planning of the crisis thus become ground of evaluation of the professional diligence of the administrators whose violation, due to the consequences that the obligation prevents, constitute in themselves serious management irregularities that can be relevant for both to report to the court pursuant to art. 2409 c.c. and the external alert to OCR in the context of the emergence of crisis signals. In this context, the petition of serious management irregularities could prove to be an inefficient tool also for the purposes of the discipline of the Crisis Code aimed at detecting early signs of the crisis. The relevance of serious management irregularities concerning the violation of the art. 2086 c.c. which omissive conducts relevant for reporting to the OCR seems to suggest that the regulatory system, as configured today, privileges, through the incentive of exemption from liability, devolution to the public administration of crisis management. In this sense the petition pursuant to art. 2409 of the Civil Code, in light of the fact that the OCRI can also activate a “bankruptcy” liquidation procedure by reporting to the PM pursuant to art. 22 CCII, could assume, in the new system, residual character when the serious irregularities are confined to mere dynamics of conflict between minority shareholders and majority.