On 1 April 2026, Directive (EU) 2026/799 of the European Parliament and of the Council of 30 March 2026, harmonizing certain aspects of insolvency law (the so-called Second Insolvency Directive), was published in the Official Journal of the European Union.
The Directive responds to the need to reduce divergences between national insolvency laws, which generate legal uncertainty and unpredictability as to the timing and values of recovery in cross-border procedures, with negative effects on the predictability of costs for creditors and investors in the internal market. The text introduces harmonized provisions on four main areas: (i) avoidance actions, with common minimum rules on suspect periods and the conditions for the unenforceability of transactions prejudicial to creditors; (ii) the tracing of assets of the insolvency estate, with direct and immediate access by insolvency practitioners to information on bank accounts and beneficial owners; (iii) the pre-pack procedure, which enables the sale of the business as a going concern to the best bidder in the course of the insolvency proceedings, structured in a preparation phase and a liquidation phase; (iv) the framework governing creditors’ committees, with rules on their establishment, working methods, exercise of the relevant rights and obligations, and liability.
Member States are required to transpose the Directive by 22 January 2029, with the exception of the provisions on access to information on bank accounts, for which the deadline is set at 10 July 2029.
- Italian Supreme Court: on the cross-class cram-down in continuity-based composition with creditors (concordato preventivo in continuità), the approval of a single class of voting creditors is sufficient
On 30 March 2026, the Italian Supreme Court published judgment No. 7663 concerning the interpretation of Article 112, paragraph 2, letter d), of the Code of Business Crisis and Insolvency (Codice della crisi d’impresa e dell’insolvenza), on the subject of the cross-class cram-down in continuity-based composition with creditors (concordato preventivo in continuità).
By this decision, the First Civil Section clarified that confirmation by cross-class cram-down pursuant to Article 112, paragraph 2, of the Code of Business Crisis and Insolvency — including in the version prior to the amendments introduced by Legislative Decree No. 136/2024 (the so-called Correttivo-ter) — requires the favourable vote of a single class of voting creditors, provided that it is composed of parties that would receive at least partial satisfaction in compliance with the order of legitimate causes of priority (cause legittime di prelazione) also on the value exceeding the liquidation value.
The Court favoured the majority interpretative approach, holding that the phrase “in the absence of” (in mancanza), which in the said Article 112, paragraph 2 of the Code of Business Crisis and Insolvency precedes the reference to approval by at least one class of creditors, refers not to the absence of a majority — however required — of classes, but solely to the absence of majority approval. This reading is more consistent with the punctuation and structure of Article 11, letter b), of Directive (EU) 2019/1023 and with recital 54 thereof, which the national provision implements.
Legislative Decree No. 136/2024 subsequently expressly incorporated this approach, reformulating letter d) and now clearly providing for the possibility of proceeding to confirmation even in the presence of the favourable vote of a single class, in the absence of a majority of consenting classes.
To access the decision, click here.
- Italian Supreme Court: the reopening of bankruptcy proceedings assumes the prior resolution or annulment of the composition with creditors (concordato)
On 24 March 2026, the Italian Supreme Court published Order No. 7054 concerning the conditions necessary for the reopening of bankruptcy proceedings already closed following the confirmation of a bankruptcy composition with creditors (concordato fallimentare).
The First Civil Section of the Supreme Court affirmed the principle that the order which reopens the bankruptcy proceedings, entailing the revival of the original procedure, necessarily presupposes the prior resolution or annulment of the composition with creditors (concordato) that had determined its closure. This is because the reopening reactivates the same insolvency procedure, without the need to re-examine the subjective and objective conditions for access, but requiring the extinguishing effect produced by the confirmation of the composition with creditors to be eliminated.
The Court relies, in support of this conclusion, on Articles 121, 137 and 138 of the Bankruptcy Law (legge fallimentare), noting that Article 121, in regulating the revival of the bankruptcy, expressly refers to the articles dedicated to the resolution and annulment of the composition with creditors (concordato). The legislative framework, together with the continuity and unity of the procedure, therefore requires that only the elimination of the composition with creditors (concordato) enables the court to order the reopening.
In the case under examination, no judgment of resolution or annulment having been made, the Italian Supreme Court held the reopening ordered by the Tribunal to be unlawful and quashed the judgment without remittal.
To access the decision, click here.
- Italian Supreme Court: provisional continuation of business (esercizio provvisorio) by the liquidator and assessment of the state of insolvency
The Italian Supreme Court, by Order No. 6666 of 24 February 2026, published on 20 March 2026, ruled on the powers of the liquidator during the winding-up phase of a company.
In particular, by the said order the Supreme Court expressed three principles of law.
By means of the first principle, the Court affirms that “in the event of the winding-up of a capital company, the liquidator, in the absence of a different determination by the shareholders, has the power to carry out all acts useful for the liquidation of the company, including the provisional continuation of the business”. It follows that where the shareholders’ meeting has not resolved on the powers conferred upon the liquidator, the latter is vested, pursuant to Article 2489, paragraph 1, of the Civil Code, with the power to carry out “all acts useful for the liquidation of the company”, including therefore also the provisional continuation of the business.
By means of the second principle of law, the Court clarifies that: “the winding-up of the company may be validly resolved also while proceedings directed at the opening against it of judicial liquidation are pending”. As a result, there is no doubt — according to the judges — that, in the absence of a provision to the contrary, the shareholders’ meeting may validly resolve on the winding-up of the company also after it has been served with the application for the opening of judicial liquidation proceedings against it, and therefore while the consequent proceedings are pending.
Finally, by means of the third principle of law, the Court affirms that: “for the purposes of the opening of judicial liquidation, when the company is in liquidation, the assessment by the court for the purposes of establishing the state of insolvency must be directed solely at ascertaining whether the corporate assets make it possible to ensure the full satisfaction of creditors, and the difficulty of prompt realisation of assets may be relevant in so far as it is symptomatic of a realisation result lower than that recorded by the debtor, thus ultimately expressing values that are objectively inadequate to fully satisfy the body of creditors”. Accordingly, whenever the court finds that the liquidation of the company’s assets is unable, by reason of the amount and/or timing of actual realisation, to enable payment of the sums owed to corporate creditors within the established time limits, the debtor company must be considered to be in a state of insolvency and, as such, subject to judicial liquidation.
To access the decision, click here.