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The Council of the NATIONAL ANTI-CORRUPTION authorities in the gathering of April 8, 2015, 1. Claimed to be done. The authority, with the # 3 April 23, 2014 determination provided interpretive criteria with regard to the provisions contained in art. 38, paragraph 1, lett. a) of d.lgs. April 12, 2006, # 163. # (code of contracts) relating to procedures for creditors following the entry into force of article 186 bis of the Bankruptcy Act (agreed with business continuity). In summary, the said determination has addressed the issue of novelty introduced by art. 33 ' Revision of bankruptcy law to promote business continuity» of the decree-law June 22, 2012, # 83, bearing "urgent measures for the country's growth», converted with amendments by law No 134 August 7, 2012. The invoked article 33 has introduced, in fact, art. 186-bis to the Royal Decree of March 16, 1942, # 267 (bankruptcy law), foreseeing the creditors with business continuity, and has amended art. 38, paragraph 1, letter a) of the code, by referring to the prediction expressed in art. 186-bis of the Bankruptcy Act, as an exception to the rule of exclusion from procurement procedures and the resulting possibility of conclusion of contracts, including subcontracts, for those who are bankrupt, liquidation, creditors. On the merits, as regards the rules on participation in invitations to tender, determination gave note of the distinction between companies that have applied for admission to the creditors with business continuity and have not yet obtained the Admission Decree and businesses who are already admitted to instead predicted agreed. In both cases, as it is known, specific operating conditions specified by the invoked art. 186-bis, it allowed the participation of the company in the tender. The determination also addressed specifically the themes of the qualifying companies regime in the event of: 1. the ordinary courts; 2. creditors ' business continuity '; 3. creditors ' in white. In the first case it is shown that companies that do not submit application for admission to the creditors with the characteristics of the Concordat "with business continuity» are precluded not only participate but also the achievement and the renewal of the certificate of qualification. In the second, it was detected as the submission of the application for admission to the creditors with the characteristics of the Concordat "with business continuity» does not result in the lapse of the certificate of qualification (on the assumption that the reference standard allows the participation-the same companies whose qualification certificate is necessary and sufficient-it even in the presence of the single application for admission to the creditors with business continuity where there is permission from the Court, acquired the opinion of judicial Commissioner). The presentation of this question does not constitute, also three-year verification purposes or impediment element of renewal (for businesses attested) or the attainment of the certificate of qualification (for companies not attested). In these cases, it was stated, it is understood the requirement for SOA to monitor the conduct of the insolvency proceedings in place and to ensure the maintenance of the requirement with the admission to the creditors with business continuity. With reference to the third hypothesis, since art. 161, paragraph 6, of the Bankruptcy Act provides that the contractor will deposit the application that contains the question of agreed together with the balance sheets for the past three financial years (and the list of creditors with an indication of their respective credits), reserving the right to submit the proposal, the plan and the documentation referred to the second and third paragraphs of this article within a time limit fixed by the Court) determining # 3/2014 felt this situation not suitable to allow the business continuity in view of the absence of a plan. By what authority he had ascertained that such circumstances constitute an obstacle due to the qualification as well as prerequisite for the subjection of the undertaking in the proceedings under art. 40, paragraph 9 ter of the Act (revocation of certificate) for loss of the corresponding requirement. From some data brought to the attention of the authority is a result, however, as is common practice that companies, in 99% of cases, have recourse to the question «in white, albeit aimed at a creditors ' with business continuity» ex art. 186-(a) of the Bankruptcy Act. What place, a careful analysis of the standard rules and a systematic reading of the same suggest possible an interpretation that makes it easier to recover the situation by enterprises; recovery to be carried out through the institution of composition proceedings with «business continuity» in case of presentation of appeal ' in white, on condition that the present clear and irrefutable prenotativi effects of agreed with business continuity. This, of course, respecting the full legitimacy of administrative action with regard to the persistence of title of the qualification requirements as well as the participation of enterprises to public procurement. 2. Considered in law. 2.1. Agreed "in white": took part in the race and qualifying. The provision relating to agreed with business continuity under art. 186-bis, paragraph 4, of the Bankruptcy Act, which admits participation in tender procedures, expressly refers to the opinion of the judicial Commissioner, if appointed; the only situation where the composition trustee may be appointed in advance compared to the classical hypothesis of creditors--in which the appointment shall be made by the Admission Decree ex art. 163 paragraph 2, # 3 of the above Act is that the agreed "in white under art. 161, paragraph 6. According to the latest estimates, in fact, by reasoned Decree fixing the term referred to in the first sentence, the Court may appoint the judicial Commissioner under art. 163, paragraph 2, no 3. It follows that if the provision which allows the agreed with business continuity, in that it regulates the authorization for participation in the race, predicts that must be acquired to the opinion of the judicial Commissioner, if appointed, in mentioning the opinion does no more than refer to a situation in which it was agreed simply claimed 161 (pursuant to art. , comma 6, cited above), we reserve the right to produce further documentation, including the business continuity plan, within the time limit specified by the Court by Decree. In other words, while the reference to the opinion of the judicial Commissioner, at that stage, it may make sense, as you admit that the rule described above, interpreted systematically, refers by implication to the possibility that undertakings are authorized with the participation not only in the case of submission of creditors with «business continuity» but also in case of application of agreed "in white. It is evident that in the latter case will, in any case, the national court to assess whether the above participation, based on the prenotativo effect of the question concerning the future presentation of the plan and ensuring that conditions exist to allow participation in the meantime. What place, bearing in mind that the work necessary and sufficient condition to participate in tenders, in excess of the threshold of 150,000 euros, it is the possession of the certificate of qualification, it must be held that the same rule would allow the company to keep, pending completion of the period between the filing of the application and presentation of the plan for continuity, the qualification possessed (SOA); What, in fact, on the assumption that persists the general requirement under art. 38, paragraph 1, lett. a) of public contracts code. On the other hand to acknowledge the possibility of applying for agreed with business continuity in accordance with art. 161, paragraph 6 (id est «black») it's the same art. 182-d, albeit to different purpose, namely to obtain authorization for the payment of claims. But what confirms the goodness of the newly proposed interpretation is the prediction of the same art. 38, paragraph 1, lett. a) of the code that, without prejudice to the hypothesis of art. 186-bis of the Bankruptcy Act («agreed with continuity»), impedimental to consider participation in the race and, to the extent of interest here, to preserve the effectiveness of the certificate of qualification, the slope of the procedure for admission to the creditors. However, since rule which produces important limitative effects on the conduct of business activities, the same can only be interpreted restrictively; What suggests that where is presented, application for prenotativi effects of «black» agreed an arrangement with business continuity, he can be considered for admission to the proceedings agreed dismissive pendant tout court. In other words, arguing to the contrary with respect to anticipation under art. 38, paragraph 1, lett. a), which identifies, among other, exclusively in the slope of the Concordat dismissive causing an obstacle to participation in the race, and then granting the certificate of qualification (under references art. 78 of p.r.Decree October 5, 2011, # 207), where no one can find the slope of a Concordat dismissive, as if to hang over that ' in white with prenotativi effects of business continuity , an enterprise cannot be considered lacking of the requirement prescribed by the letter a) of that provision. However, the same law (cf. The State Council, section IV, July 3, 2014, # 3344), most recently on the subject, has acknowledged that where conditions are met and satisfied the requirements laid down by the fourth paragraph of art. 186-bis cited (in which, it is recalled, it is expected the permission of the Court and the opinion of the judicial Commissioner, that at this stage can be appointed only if there is demand for agreed "in white"), the question itself does not imply nor the automatic lapse of the certificate of qualification or the termination of the current contracts, as the Institute has the purpose of encouraging companies to anticipate the denunciation of crisis situation Anyway before being subject to external control measures. Certainly, the permanence of the validity and effectiveness of the certificate of qualification is resolutely conditional upon the Court decision that he should declare inadmissible the proposed agreed with business continuity. In defense of the legitimate participation of the enterprise in the race, also sorting involved the establishment of an interim ad hoc judicial authorization form. 2.2. Agreed "in white": contracts underway. Consistent to the view in the previous paragraph, for the same reasons extrapolated from the wording of art. 38, paragraph 1, lett. a), with reference to which it is believed that it could not consider the agreed ordinary proceedings or dismissive Pendant (which would cause an obstacle to the continuation of the contractual relationship) where question ' has been presented in white with reservation made to produce a plan setting out proposal for continuation of business activities, it must be held that the latter is not, moreover, because the contract is terminated because , is not less-during the period prescribed for submission of the plan-the qualification requirement is necessary for the performance of the contract, as is clear from the wording of art. 60, paragraph 2 of the p.r.Decree October 5, 2010, # 207. Based on the foregoing considerations, given the important implications that the immediate revocation of the certificate of qualification leads to businesses that have filed for Concordat «black» subject to submit a plan that bears the continuity of the company; in the light of the right compromise between the requirements of legitimacy of administrative action and the need to allow, during the current crisis, the actual recovery of the activity to companies in distress, Causes to change the determination of the authority # 3/2014, according to the considerations expressed in law, in order to avoid that companies in crisis see foreclosed the possibility of business continuity at the very moment that herald the presentation of its plan. Approved by the Council at its meeting of April 8, 2015.
Roma, April 8, 2015 President: Canton Deposited at the Secretariat of the Council on April 16, 2015. Secretary: Esposito
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