A new definition of diligence to be addressed in the procedures of the Italian Business Crisis and Insolvency Code (CCII)

Article 268 of the CCII regulates the statement of the crisis manager, who must provide a detailed overview of the debtor's patrimonial, economic and financial situation, as well as its creditworthiness. The “correttivo ter” reinforced the importance of verifying the debtor's conduct, in particular with regard to diligence in having assumed obligations and the proper management of its assets before the initiation of proceedings.

The legislator's aim is to prevent persons who have assumed obligations thoughtlessly or irresponsibly from benefiting from the effects of controlled liquidation without a prior assessment of their conduct. In this context, the crisis manager's statement may not be limited to a mere description of the debtor's situation but must also contain a substantive assessment of the debtor's diligence.

It should be noted, however, that the notion of the debtor's diligence assumes a different meaning depending on whether one considers Article 268 or Article 269 of the CCII. The distinction between these two rules is crucial to fully understand the role of the manager's statement and the assessment of the debtor's conduct.

On the one hand, Article 268 focuses on the phase prior to access to the controlled liquidation procedure. In this respect, diligence is assessed in the light of the debtor's economic-financial choices over time and its caution in assuming obligations. It is a retrospective analysis aimed at determining whether the debtor has acted with due care in the management of its assets, avoiding risky choices or choices disproportionate to its economic capacity. Conduct involving recklessness, excessive debt exposure or even wilful misconduct could adversely affect the assessment of the debtor's creditworthiness and, consequently, the possibility of obtaining favourable treatment in a controlled liquidation.

On the other hand, Article 269 introduces a concept of diligence that takes place at a later stage, i.e. after admission to the controlled liquidation procedure. In this case, diligence concerns the correctness and transparency with which the debtor cooperates with the bodies of the proceedings. It is no longer a question of analysing previous economic choices, but rather of assessing the debtor's attitude in providing the requested information, complying with procedural obligations and not obstructing the management of its crisis. The debtor must demonstrate a proactive behaviour, marked by loyalty and cooperation, avoiding omissions or reticence that could jeopardise the success of the procedure.

This distinction is fundamental because it highlights how the concept of diligence in the CCII is not unambiguous, but changes depending on the procedural stage at which it is analysed. The diligence required by Article 268 is essentially related to the debtor's past responsibility in the management of its indebtedness, whereas that required by Article 269 is functional to the proper execution of the controlled liquidation procedure.

Considering this distinction, it seems appropriate for the manager's statement to include a paragraph devoted to the examination of the debtor's diligence in assuming the obligations, in accordance with Article 268 CCII. Such a paragraph should:

The inclusion of a specific paragraph on the debtor's diligence in the manager's statement appears consistent with the underlying rationale of the legislation and with the aims of selecting eligible parties for access to the proceedings. However, it is essential to distinguish between the diligence required under Article 268, which concerns the debtor's prior conduct, and that required under Article 269, which concerns conduct during the proceedings. A correct interpretation of these two notions makes it possible to ensure a better balance between the protection needs of creditors and the possibility of offering a second chance to deserving debtors, while avoiding abuses of the controlled liquidation procedure.