In a recent decision filed on 12 February, 2019, the Court of Turin accepted an application for bankruptcy discharge made by a natural person previously subject to Extraordinary Administration Procedure, thus recognising the institution’s general scope in matters of insolvency law; and this for reasons of a constitutionally oriented interpretation respecting the principle of equality and both European and internal tendencies to encourage, after a reasonable period, the relocation on the market of companies and entrepreneurs even after a first experience that has gone wrong.
It is well known that the benefit of discharge was introduced into the Italian system by Legislative Decree no. 5 of 9 January 2006 reforming the bankruptcy law, with the aim of liberating the bankrupt party, in the presence of certain conditions laid down by art. 142 L.Fall., from outstanding debts deriving from bankruptcy claims not settled in the course of the procedure, thus allowing him to rebuild a new existence and reposition himself on the market or, in other words, to make a fresh start in life.
As the Turin judges have also pointed out, this institution, provided for in the Bankruptcy Law, is not referred to in the Extraordinary Administration rules contained in Legislative Decree No 270/1999, with the result that some authors had doubted its applicability in such cases.
According to the Court, this is a regulatory loophole, given that the purpose of the benefit of the discharge, i.e. to allow the reintegration of the debtor already subject to bankruptcy proceedings in the economic-productive world, seems compatible with both the bankruptcy procedure and the extraordinary administration.
In order to prevent this loophole causing an unjustified disparity of treatment between the legal position of the natural person declared bankrupt and that of the person subject to extraordinary administration, the Court of Turin, also in the light of the evolution of both EU and national legislation which is increasingly favourable to extending the application of that institution (see the Recommendation of 12 March 2014 of the European Commission, which highlighted the advisability of providing instruments to reduce the effects of bankruptcy on entrepreneurs by providing for the complete discharge of debts after a maximum period of time, as well as the new insolvency code that extends the application of this institution to companies), has therefore made a similar application of the institution in question, extending the possibility of benefiting also to persons undergoing extraordinary administration procedure.