The art. 480, par. 2, of the Italian Civil Trial Code, as known, has been amended by the Article 13 of the D.L. n. 83/2015 (so-called decreto “anti credit crunch”), issued on June 27 last, (pursuant to art. 13), referred to the “form of injunction”.  By this way a new formal fulfillment has been provided for the creditor, who must notify the debtor the opportunity to settle an anti-crisis agreement with the creditors as well as to propose a “plan of consumer”, remedying the situation of over-indebtedness, supported by a “body composition of crisis or a professional appointed by the court”.

This allows us to talk about the three following bankruptcy proceedings: the crisis settlement agreement by over-indebtedness, the plan of the consumer and the liquidation of the debtor's assets, provided for in Law n. 3/2012.  Both the objective and subjective requirements giving access to the above proceedings as well as the recent case law applications of the same requirements will be focused.

Three years ago, during a deep economic and financial crisis, the Italian legislator, through the Law n. 3/2012, introduced in our legal system a process for the purpose of dealing with the over-indebtedness, as the latter was not subject to the proceedings provided for in the Italian Bankruptcy Law (see par. 6, L. 3/2012). The following ratio legis was quite clear: discharging all those debtor that were not subject to the traditional bankruptcy proceedings from residual debts (the Italian “esdebitazione delle passività”) as well as allowing him to obtain the cancellation of the debts (so-called “fresh start”), so gaining new activity in the economy. The original text of the law only provided  the crisis settlement agreement proceeding: thus, by the amendments provided for in Law n. 221/2012, the plan of the consumer and the liquidation of the debtor's assets have been added to the provision. In short, this complex system provides three different institutions:

·      crisis settlement agreement: in an over-indebtedness context, the debtor who is not subject to the traditional bankruptcy proceedings (or to the consumer’s one) may  conclude a restructure debt agreement with the creditors . This allows the creditor’s satisfaction pursuant to a plan ensuring the regular payment of the non-leviable credits (see art. 7, par. 1);

·      Plan of consumer: the over-indebted consumer, notwithstanding the right to propose to the creditors the settlement agreement pursuant to the art. 7, par. 1, may lay down a plan (so-called “plan of consumer”) that will be subsequently approved and made effective by the Court, avoiding the necessary acceptance by the creditors (see art. 7, par. 1-bis);

·      Proceedings of liquidation of the crisis: this latter one allows the liquidation of all the debtor's assets.

Moving on, the applicant should satisfy two entry requirements to the aforementioned proceedings: both an objective and a subjective one.

The first one is the state of over-indebtedness, meaning a state of a continuous imbalance between the incurred obligations and the assets that can be liquidated for a settle. Such situation may take the form of financial crisis (severe difficulties to fulfill its obligations, see  art. 6, par. 2, lett. a) or state of insolvency (permanent inability to entirely fulfill them see art. 6, par. 2, lett. a).  

Referring to the subjective requirement, first of all it is necessary to premise that in any case the procedures are precluded in all those cases provided for in Article 7, paragraph 2. Going beyond this provision, both the debtor who is not subject to the traditional bankruptcy proceedings and the consumer may access to these proceedings.

The proper and legal meaning of ‘consumer’ is a controversial point, about which the Court of Milan stated as follows: “the ascertainment of the requirement (pursuant to art. 6 of L. 3/2012) consisting in the status of consumer as related to the applicant for crisis settlement proceedings, pursuant to the Art. 8 the abovementioned Law (agreement or plan of consumer) must be carried out by strictly and rigorously interpreting the functionality to private consumption of the incurred obligation. On the opposite, there would not be justification to the procedural benefits provided under these proceedings, as a great simplification comparing to the settlement agreement oneor the only subjection to the approval by the Courts and not also to the acceptance by the majority of creditors” (see Judgement n. 13047/2015).

Therefore it seems fair to conclude that if, on one hand, also the entrepreneurs and the self-employed workers could be qualified as a “consumer” - under the condition that the obligations determining the state of over-indebtedness were not related in any way to the business or professional activity - on the other hand, it’s necessary to ensure that such obligations must finalyzed to the own consumption.