1) Italian Supreme Court: on the application for crisis resolution measures following the conclusion of a negotiated composition of crisis (composizione negoziata della crisi)

By Order No. 13997/2026, published on 13 May 2026, the Italian Supreme Court established a legal principle on access to crisis and insolvency resolution instruments whilst proceedings for the opening of judicial liquidation are pending.

The Court clarified that “Article 40, paragraph 10, last sentence, of the Code of Business Crisis and Insolvency (CCII) provides for an exception to the general rule pursuant to which the application for access to a crisis and insolvency resolution instrument must be filed, on pain of forfeiture, by the first hearing scheduled pursuant to Article 41 of the CCII; the eligibility of the application, which may thus be deferred, is not, however, consistent with a time limit running from the mere withdrawal by the debtor from the administrative negotiated composition of crisis procedure; rather, it presupposes that the application is submitted once the negotiations conducted in the negotiated composition of crisis procedure have been concluded and, therefore, within sixty days of the communication of the expert’s final report”.

The exception under Article 40, paragraph 10, last sentence, is therefore functional to finalising the outcome of the negotiations conducted during the negotiated composition of crisis procedure, balancing the need to facilitate restructuring with the need to avoid dilatory conducts that are detrimental to creditors and to the relevant market.

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2) ESMA: resolution briefing on the effective use of resolution tools in CCP crisis planning published

On 13 May 2026, the European Securities and Markets Authority (“ESMA”) published a resolution briefing on the effective application of resolution tools in the crisis planning of central counterparties (“CPs”), developed under the regulatory framework established by Regulation (EU) 2021/23 on the recovery and resolution of CCPs (the “CCPRRR”).

ESMA’s briefing is addressed to national resolution authorities (“NRAs”) and aims at providing practical guidance on how to operationalise the write-down and conversion of instruments tool (“WDCI”) available in CCP crisis scenarios.

In particular, NRAs should define the relevant data to be collected by the CCPs, with a view to calibrating the resources available through a WDCI. In doing so, NRAs should take into account the impact on relevant stakeholders, such as clearing members, financial markets and financial market infrastructures. The authorities should ensure that processes are in place for the effective implementation of the WDCI, including preparations for the subsequent reorganization of the CCP following the application of the WDCI.

ESMA’s promotion of consistent practices across jurisdictions supports the effectiveness of financial markets and financial stability, which are strategic priorities for ESMA itself.

3) Italian Supreme Court: on the “attenuated dispossession” (spossessamento attenuato) regime pursuant to Art. 167 of the Bankruptcy Law

By Order No. 13242/2026, published on 7 May 2026, the Italian Supreme Court enunciated a principle of law in the area of composition with creditors (concordato preventivo) introduced by application pursuant to Article 161, paragraph 6, of Royal Decree No. 267/42 (the “Bankruptcy Law”), the so-called composition with creditors “with reservation” (concordato con riserva).

The Court clarified that the prohibition on commencing or continuing enforcement or interim actions provided for under Article 168 of the Bankruptcy Law does not preclude the tax authority from enrolling and notifying a tax demand (cartella di pagamento) against the debtor admitted to the composition with creditors. However, from the date of filing of the application, the regime of “attenuated dispossession” (spossessamento attenuato) under Article 167 of the Bankruptcy Law applies and, as a consequence, the payment of pre-petition debts — including tax debts subject to instalment arrangements — constitutes an act of extraordinary administration and is permitted only with the prior authorization of the delegated judge.

It follows that the failure to pay the instalments, resulting from compliance with that regulatory constraint, cannot be characterized as intentional breach, nor can it justify the application or recovery of penalties linked to the forfeiture of the benefit of the instalment arrangement. This regime applies in full also during the reservation phase of the composition with creditors with reservation (concordato con riserva), given the immediate operation of the “attenuated dispossession” (spossessamento attenuato) regime from the filing of the application.

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