The creditors ‘meeting and the creditors’ committee represent two of the bodies in charge of bankruptcy provided by our legislator. But what are the tasks assigned to them? What is their relevance?
Let us try to clarify it in a practical and concise way, with this brief analysis of the two bodies mentioned above.
Assembly of creditors
Let’s start by reminding that the only attribution of an administrative nature that falls on the creditors ‘ meeting is linked to the participation in the appointment of the trustee, and of the members of the creditors’ committee.
On closer inspection, then, the assembly of creditors is not even “contemplated” explicitly by the legislator, who merely refers to the fact that once the meeting of creditors for the examination of the passive state is concluded, and before the declaration of enforceability, the creditors representing the majority of the admitted credits can make new appointments on the members of the creditors’ committee, or request the replacement of the administrator, indicating to the court the reasons for the request, and a new name.
In other words, there are two main functions of the creditors’ meeting, which can require:
- the replacement of the members of the creditors ‘committee with new names that are designated by the creditors’ meeting, with a request that cannot be refused, except in the case where the criteria set out in art. 40 lf, with particular reference to the need for a balanced representation of the interests of the various categories of creditors;
- the replacement of the administrator with the name designated by the creditors’ meeting, with a choice that can be refused both when the criteria pursuant to art. 28 lf, but also when the reasons that should be indicated in the replacement request are not founded. Usually, the substitution of the curator takes place in rather delicate and particular cases.
More varied are the powers of the creditors’ committee , which on its own initiative can file a complaint against the decrees of the appointed judge , request the revocation of the trustee , exercise inspection and information powers (by inspecting the accounting records and the documents of the procedure, asking for information and clarifications to the trustee and the bankrupt, etc.), and exercise certain powers of an advisory nature , expressing for example his opinion in cases where the law prescribes it.
In essence, the functions of the creditors’ committee, and their relevance for the development of the entire bankruptcy procedure can be summarized in two powers attributed to them:
- the power of authorization , which had previously been attributed to the court and the delegated judge, has now been transferred to the creditors’ committee in the measures of the delegation of attribution by the curator, the appointment of the assistants, the carrying out of acts of extraordinary administration, the take over the contracts in progress;
- the power to supervise the management of the procedure by the trustee, which now belongs not only to the appointed judge but also to the creditors’ committee within the functions attributed to it, thus competing with the delegated judge or not.
As stated in the current regulatory framework, the assignment of important management powers (and the remuneration of the committee, to the extent not more than one-tenth of what will be paid to the liquidator), also coincides with the adoption of certain responsibilities, for certain verses compatible with the provisions regarding the members of the board of statutory auditors, notwithstanding the differences between the activities of the college and those of the committee, in addition to the fact that the risk of incurring such a type of responsibility for the culpa in superband has been reluctant to accept the nomination as a member of the creditors’ committee.
Also in the light of this evidence, the legislator has taken steps to ensure that the functioning of the creditors ‘ committee takes place with the ” least possible disturbance ” of the members. Take into account, for example, the possibility of delegating the performance of the functions only to subjects in possession of the requisites established for the appointment as a curator, or the adoption, for the deliberations, of the referendum method, as an alternative to the collegial method, and so on.
However, the above does not mean that we should not exercise great awareness and attention in the deliberative process. So much so that greater attention to the regularity of the deliberations of the creditors’ committee is now in force with respect to what was not the case in the past, and is specifically requested when the resolution has the subject of the authorizations, aimed at integrating the powers of the editor, and whose absence affects the validity of the act.
On the other hand, the approach towards opinions, which are mandatory but not bound, is different, whose absence was considered to affect the regularity of the process of issuing the decree of the delegated judge in the event of the prescription of the prior assumption, thus determining a defect of the act authorization, which, as sanctioned by a recent ruling in the Cassation, finds within the bankruptcy procedure its necessary and exclusive control systems, such as complaints against the provisions of the delegated judge and / or the editor’s needs.