COMPANIES AND CONSUMERS IN THE CRISIS OF OVERDEBT: THE NEW CODE OF BUSINESS CRISIS AND INSOLVENCY AS A TOOL FOR ECONOMIC RECOVERY
Progetto In modern economies, the correct access to credit has a key role in
stimulating the possibility for companies to make productive investments
and for consumers to access goods and services. The reality highlights
several anomalies in the credit granting. In fact, for profit-making needs of
banking institutions the credit sector often neglects the ‘mission’ that should
instead characterize such a delicate economic activity. Thus, the procedures
that prompt a credit institution to grant or not a loan in favour of a company
or a consumer often lead banks to accept only the requests of those entities
providing ample guarantees. In this way, the function they should perform is
greatly compressed. Therefore, it’s necessary to investigate instruments
contained in the Consolidated Banking Act (TUB) as well as in the Code of
business crisis and insolvency. Particular attention will be paid to the impact
that the new procedures for the negotiated settlement of the crisis, introduced
with the legislative decree n. 118 of 2021 and converted with l. n. 147 of
2021, may have in terms of balancing the needs of business continuity and
legitimate expectations of the creditors of the company in crisis. Therefore,
the project aims to analyse the intersections between situations of crisis such
as over-indebtedness, creditworthiness, and responsible credit granting. To
this end the study will take into account i) the legislation related to the
interruption of credit and the violation of transparency and information rules,
ii) the measures provided for in the Code of business crisis and insolvency
and, lastly, in the d.l. 118/2020, as well as iii) the national and EU
jurisprudence, and the decisions issued by the ABF. Special attention will be
paid to problems connected to the granting credit to non-performing
companies which represents an important tool to safeguard business
continuity and economic activities, but also exposes credit institutions to
substantial responsibility profiles in the event that these transactions, far
from facilitating the corporate reorganization, instead entail a further
increase in debt criticalities. All to verify whether actually there is a
discipline for accessing credit based on a responsible lending principle and
to identify eventual remedies and/or sanctions for the violation of
creditworthiness and the transparency rule that can be added, if not to replace
those currently available. In fact, both the current legislation (also including
the new negotiated settlement of the crisis) and the reform of the Code of
business crisis and insolvency appear inadequate and unsatisfactory.
Therefore, it is well appropriate to investigate this discipline to prepare
solutions that meet business and consumer needs, with the awareness of a
necessary balance between distinct and opposing requirements: protect
consumers and businesses as well as the credit market, together with the
survival of the entire market system.