Giovanardi Pototschnig & Associati with name partner Paolo Pototschnig assisted Intesa SanPaolo S.p.A. in the proceeding initiated before the Court of Appeal from Lucchini S.p.A. in Special Administration in order to challenge the pre-deductible nature of the credit repayment of a pool financing, in the form of provision of guarantees for credit receivables as agreed in a restructuring agreement under ex Article 182 bis of Bankruptcy Law. The Supreme Court was called to decide for the first time on the possibility for pre-deduction to be ruled out through an ex-post review of the suitability of such agreements to ensure the reorganization of the company.
By the court decision no. 2627/2018, the Court of Appeal, accepting the defence’s argument of Intesa SanPaolo, has acknowledged that the pre-deductible nature of credits for financings, in any form, following an approved restructuring agreement arise ex lege from their prediction in the agreement itself with no margin for further and different decisions by the court at the time of admission to the liabilities.
The Court of Appeal has also acknowledged that the definition of pre-deductible financing is to be considered extended to any form of financial support envisaged by a restructuring agreement, including guarantees.