Workers Buyout: notion and developments introduced by the Italian budget law 2021.
The Workers Buyout (WBO) is an operation through which the employees of a company in crisis, united in a cooperative society, acquire it with the aim of restoring its financial condition and safeguarding the employment status and know-how of its workers.
The possibility of carrying out WBO operations was extended in 2014 to companies confiscated from organised crime and, more recently, the Italian budget law 2021, in addition to increasing funds in support of WBO initiatives has provided this tool shall also apply to companies outside of crisis situations.
The Workers Buyout is an operation of acquisition or rescue of a company by the employees who work or have worked there. This term is used to refer to a corporate restructuring or conversion process, whereby employees join together in a cooperative society and acquire ownership (or lease) of all, or part of, the company that employs them.
The WBO was introduced into Italian legislation in 1985 with law No. 49, the so-called “Marcora law”, which promoted the establishment of cooperatives by workers who had been made redundant, laid off or employed by insolvent companies or subject to bankruptcy procedures through a rotation fund, mainly managed by Cooperazione Finanza Industria (CFI), for financing projects presented by cooperatives.
The Marcora law was then reformed by Marcora II law (March 5th, 2001, no. 57) which, among other things, provided for the employees financing’s payback (initially non-repayable) within 7/10 years; and legitimised the presence within the cooperative, for the entire duration of the investment, of an investor with “financial interests”, rather than mutual interests.
In order to encourage WBOs, Article 11(2) of Decree-Law No. 145, December 23rd, 2013 provided, for cooperative societies established by companies’ employees have a right of first refusal in the event of rental or purchase of the company.
Also with the aim of at promoting this tool, the Ministry of Economic Development Decree on December 4th, 2014 (Article 6) provided for various facilities throughout the country for the establishment of cooperatives managing companies confiscated from organised crime while Legislative Decree No. 22, March 4th, 2015 provides in Article 8 “Incentives to self-entrepreneurship” the possibility for workers who decide to participate in the workers buyout initiative to apply in advance for indemnities due to them precisely for the purpose of forming a cooperative together with other worker members.
The Italian budget law 2021 introduced significant changes to the regulatory framework outlined above. It financed the so-called “New Marcora” with €10 million for each of the years 2021 and 2022 and included within the scope of the system of incentives already set out for the recovery of companies in crisis by cooperatives formed by workers from the same companies, also the hypothesis of companies whose owners intend to transfer them to workers regardless of their critical status.
In particular, according to Article 1, paragraph 270, in case of WBOs that respond to reasons other than the company’s crisis, such as the absence of a generational change, the “Fund for Sustainable Growth” referred to in Article 23 of Decree Law 83/2012 can be activated, which will intervene according to what will be defined by appropriate interministerial decrees (MISE-MEF). Institutional investors in the cooperative movement pursuant to Article 111-octies of the implementing provisions of the Civil Code (CFI, but also mutual funds and pension funds established by cooperatives) may also be used for such operations.
The 2021 Budget Law envisages the tax exemption for workers in relation to the amounts of severance pay they allocate to the subscription of the share capital of the cooperatives (paragraph 271); the exemption from inheritance and gift tax for companies transfer and company shares, as well as from the taxation of capital gains relative to the same operations (paragraph 272); the condition of mutualità prevalente as per Article 2513 of the Italian Civil Code only as from the fifth year after incorporation (paragraph 273).
The law also foresees – paragraphs 259-262 – the possibility for CFI to carry out, on behalf of the MISE, assistance and consultancy activities for specific WBO initiatives. CFI can also be the recipient of national and regional public funds as well as carry out promotional activities, services and assistance in the management of funds entrusted to Public Administration and Bodies with the purpose of supporting employment through the creation and development of cooperative and social work enterprises.
Overall, these regulatory interventions are all geared towards providing even greater incentives for workers to take over enterprises. The WBO seems to be a very interesting and topical operation, capable of protecting employment by integrating active labour and development policies. It remains to be seen whether and how these incentives and instruments will be concretely taken up and implemented in the near future.
Jurisdiction of the Court of Accounts: Supreme Court judgement no. 2157 of February 1st, 2021 clarifies the requirements of the “service relationship” and the limits of the administrative discretion.
On February 1st, 2021, the Supreme Court of Cassation filed the judgement no. 2157/2021 providing useful clarifications on the concept of “service relationship” as a prerequisite for the establishment of the Court of Accounts’ jurisdiction over private entities, in cases where the competing jurisdiction of other courts (particularly, the civil courts) exist.
The case in question regards a number of allegedly speculative derivative transactions entered into between Morgan Stanley (“Bank”) and the Italian Finance Ministry (“MEF”) which, according to the accounting Prosecutor, caused a treasury damage of approximately 4 billion euros. On both first instance and appeal, the Court of Accounts consistently declined its jurisdiction over all defendants (the Bank and MEF former top executives).
In confirming the appeal ruling regarding the Bank’s position, the Supreme Court reinstated that the circumstance that an entity is not formally part of a public administration is not in itself sufficient to exclude the accounting jurisdiction and that such jurisdiction does exists in cases where a “service relationship” is actually established between private entity and public entity.
However, certain ineliminable elements must be present for the “service relationship” to be defined as such, including, most notably:
1. the fact that the private entity is appointed to carry out public service or activity, in the interest of the public administration and using its resources, and, as a consequence, is actually included or placed, however temporarily, in the organisational structure of said administration;
2. the circumstance that the relationship between private and public entity is such that the former participates in the activities of the latter in the capacity as a proper agent of the administration, bound by specific restriction and functional obligations aimed at ensuring the general objectives of the administration;
3. the irrelevance of the formal source of the authority conferred upon said private entity, be it a private law agreement, an administrative concession, a formal public employment relationship or even a mere de facto relationship.
The Supreme Court relied on an abundance of precedents on the matter (all dated between 2014 and 2020) outlining the prerequisites for such “service relationship” as a basis for the Court of Accounts jurisdiction over private entities and found that none of the above elements applied in the case at issue.
In particular, in proposing, negotiating and closing the derivative transactions, the Bank never took up an internal role within the MEF entailing the authority to make evaluations and decisions on its behalf, or even in its place. All the aspects raised and challenged by the Prosecutor in his accusations (e.g. the alleged disproportion and asymmetry between the parties’ respective contractual positions, the insertion of ATE clauses, the absence of collaterals, the alleged conflict of interest as well as the taking advantage of the role of public debt instruments specialist, as well as the alleged illicitness of the causa of the relevant contracts) point to a typical action for contractual or pre-contractual liability but are not sufficient to determine the existence of the “service relationship” with the MEF. Lacking the elements making up such relationship, the action falls under the jurisdiction of the civil judge, and not that of the Court of Accounts.
In other words, what the Supreme Court deemed essential for the purposes of the assertion of the Court of Accounts jurisdiction, is the conferral to and exercise by a private party of a public authority stemming from the structural and operational inclusion of such within a Public Administration, so that the private entity behaves as an actual agent of said Public Administration.
Interestingly, the Supreme court reached the opposite conclusion with respect to the MEF public officials involved. In overturning the first two levels of judgment, the Court of Cassation ruled that the Court of Accounts has jurisdiction over the treasury damage claim against the Ministry officials and quashed the relevant part of the Court of Appeal judgement.
According to the Supreme Court, in fact, while governmental bodies are not subject to judicial control with respect to the merits of their decisions regarding the management of public debt through derivative financial instruments, the jurisdiction of the Courts of Accounts does extend to the assessment of the parameters of legitimacy of the administrative actions. The Supreme Court therefore held that the action for liability for treasury damages is admissible before the Court of Accounts, where it is claimed, as a substantive petitum, that the MEF executives acted improperly, in this specific case, by behaving negligently in agreeing to certain contractual conditions regarding the abovementioned derivative contracts and in the performance and management of such contracts.
Proceedings for alleged bad management and unlawful conduct in connection with the derivative instruments at issue will therefore resume on first instance against the abovementioned defendants alone before the Lazio Jurisdictional Section of the Court of Accounts.
New compulsory mediation for all disputes in contractual matters highlighting a debtor’s non-fulfilment as a result of compliance with containment measures ordered during the COVID-19 emergency. The Scope of application and an interpretative doubt.
In the proliferation of legislation aimed at dealing with the epidemiological emergency from COVID-19, some may have missed the introduction, by the legislator, of a new hypothesis of mandatory mediation in disputes relating to contractual obligations.
As you may be aware, by paragraph 6 bis of art. 3 of the Law Decree no. 6/2020, the legislator provided that compliance with the containment measures laid down by emergency legislation must always be assessed for the purpose of considering the exclusion of the debtor’s liability , also in respect of the application of any forfeiture or penalties related to the delayed failure to fulfil obligations.Subsequently, even before this rule was concretely applied in Court, the legislator – through Law Decree 30 April 2020, no. 28 (converted into Law no. 70 of 25 June 2020) – introduced a further paragraph (6 ter) to art. 3 of Law Decree no. 6/2020.
Paragraph 6 ter of Article 3 established, in fact, that the preliminary mediation procedure constitutes a condition for the admissibility of the claim in disputes relating to contractual obligations, in which compliance with the containment measures ordered during the epidemiological emergency from COVID-19 might be assessed pursuant to paragraph 6-bis.
The rule has an undoubted purpose of deflating litigation that could arise from the pandemic and the containment measures issued in the difficult (and uncertain) days of the lockdown.
In fact, the same will apply to all litigation in which a breach or an incorrect fulfilment of obligations may arise.
However, in considering the prior mediation procedure as a condition of the claim’s admissibility, the law does not take into account the fact that the person who proposes the request for compliance in Court (and therefore, the creditor) is not the subject who can avail itself of the exclusion of responsibility set forth by art. 3, paragraph 6 bis, of Law Decree no. 6/2020. This is in fact a defense and/or an exception that could (not necessarily) be raised by the debtor on his own.Pending application of this new compulsory mediation, one therefore wonders whether this can be immediately considered as deflationary of future litigation, given that it is only through the debtor’s appearance in Court that the creditor (and also the Judge) will be in a position to verify the actual traceability of the case (and underlying relationship) to the situation provided by the law (i.e., if the compliance with the containment measures must be evaluated or not in order to exclude the debtor’s liability). Alternatively, it shall be assumed that for all disputes relating to contractual obligations which remained unfulfilled or not exactly fulfilled during the period in which the containment measures were in force, the creditor in question will be obliged to carry out the prior mediation procedure and regardless of the reasons of merit that the debtor could subsequently present in Court.
Is it reasonable to exclude executives from the ban on dismissals?
The recent order dated February 26 by the Court of Rome, labor section, rekindles a debate that arose at the beginning of this pandemic and offers the cue for some reflections on the reasonableness or otherwise to apply the current not-so-temporary ban on dismissal for objective reasons also to executives (i.e. dirigenti). In the case submitted for examination, the Roman labor judge decided to respond positively to this doubt.
Exactly one year ago, the Law Decree Cura Italia came into force, and among other things, established the preclusion for employers to terminate the employment contract for objective reasons “pursuant to art. 3 L. 604/66“, from the scope of which the executives’ category is unquestionably excluded.
Consequently, it was deduced that, even in times of pandemic, it was not precluded to dismiss managers for objective reasons, i.e., for reasons relating to company organization. However, there were some interpretations to the contrary, albeit minority ones, according to which it would have been contradictory to include executives in the moratorium on collective dismissals and at the same time exclude them from the ban on individual dismissals for objective reasons.
Now, the order under discussion seems to take a clear position: the exclusion of executives from the prohibition of individual dismissals would pose a problem of reasonableness with reference to art. 3 of the Constitution. In particular, it would be difficult to justify why, unlike other workers, the block for executives would certainly apply in case of collective dismissal, while it would be excluded in case of individual dismissal. In addition, once again according to the Roman judge, the inapplicability of reinstatement of executives in the workplace, makes this category more exposed to occupational risk and therefore the need to “not allow the damage of the pandemic to be discharged systematically and automatically on workers” must also refer to senior management.
In support of an opposite thesis, it is worth remembering that the moratorium on dismissals for objective reasons was initially set for a period of 60 days (from March 17, 2020) but given the continuation of the pandemic crisis, the term has been gradually extended, until most recently, to March 31 and we already know that it will be further extended at least until June 30, 2021. All these extensions have been accompanied by the introduction or extension of social shock absorbers.
Thus, it seems relevant that executives cannot benefit from the “cassa covid” (i.e. redundancy fund) and precluding the possibility of firing them, even in case of objective suspension or reduction of work, would mean that the economic burden of the pandemic, in relation to this category of employees, would be borne entirely by the employers. From this point of view, the doubts regarding the constitutionality of the ban on dismissals on the grounds of conflict with the principle to exercise freedom of private economic initiative would be even stronger if the moratorium were to be extended to the dismissal of executives on objective grounds.
It is a fact that a constitutionally oriented interpretation of the rules governing the freeze on dismissals for objective reasons could lead to opposite conclusions depending on whether, in balancing the interests of the parties involved, Art. 41 or Art. 3 of the Constitution is considered prevalent.
The President of the Labour Commission of the Chamber of Deputies has also recently declared that “in the drafting of the regulation on dismissals, I expect that the current exceptions will be confirmed, and that executives for whom these regulations are inapplicable will be expressly excluded from the ban“, in fact taking sides in a critical position with respect to the ruling of the Court of Rome examined here.
Although executives could be expressly excluded from the applicability of the rule extending the freeze on dismissals, it is nevertheless possible that the conclusions reached by the judge during the first court instance will be confirmed. In fact, in the case at hand, it is of fundamental importance that the dismissed executive complained of being a “pseudo-manager” (so called “pseudo-dirigente”), i.e., falling into this category only formally. These are employees who, despite being classified in a managerial category, in fact perform duties characterized by a degree of autonomy not corresponding to the profile, with limited powers of initiative and corresponding limitation of responsibility typical of a lower category such as that of high rank employees (“quadri”).
If the judge of the (likely) opposition phase will admit the evidence of this circumstance and the thesis of the pseudo-manager is proved, the framework provided for the generality of workers will have to be confirmed as being applicable to the dismissed plaintiff, as well as the nullity (pursuant to paragraph 1, art. 18 Law 300/1970) of the termination in violation of the block of dismissals for objective reasons, with the company consequently being ordered to reinstate the executive and compensate for damages.
The ABI scheme for bank guarantees and the jurisdiction of the specialized courts for companies matters.
With the decision no. 6523 of March 10th, 2021, the Supreme Court ruled that the claim for the invalidity of a bank guarantee for breach of antitrust law belongs to the jurisdiction of the specialized courts for companies matters, pursuant to article 3, paragraph 1, letters c) and d) of Legislative Decree no. 168/2003.
To this end, it is worth recalling that with decision no. 55 of 2005, the Bank of Italy found that certain clauses of the contractual scheme for guarantees of banking transactions (the so-called omnibus guarantees), drafted by the ABI (Italian Banking Association), constituted a restrictive agreement of competition prohibited under Article 2, paragraph 2, letter a), of Law no. 287 of October 10 th,1990.
Some courts have ruled that the nullity of the prohibited agreement also entails the nullity of the guarantees enforcing it. More precisely, most of the decisions consider that the nullity does not affect the entire guarantee, but only the clauses covered by the prohibited agreement.
On the other hand, some rulings argue that the guarantor is only entitled to bring an action for damages, while other rulings assume that the antitrust rules apply to the bank’s customer but not to the guarantor.
In fact, in several decisions the Supreme Court has clearly stated that: (i) the final customer is eligible to bring an action for the invalidity of the prohibited agreement and to claim compensation for the damages incurred as a result of the illegal agreement; (ii) the jurisdiction for such claims belongs to the court specifically designated by Article 33, paragraph 2, of Law No. 287/1990 (i.e. the Court of Appeal, and, today, after the amendments introduced by Decree Law No. 1/2012, the specialized court for companies matters).
However, it does not seem that the Supreme Court has explicitly stated that the nullity of the prohibited agreement also entails the nullity of the guarantee representing the enforcement of such agreement. As a matter of fact, this issue has been dealt with by the Court mostly as a side issue, in order to assess the grounds of certain connected procedural aspects.
The decision under review confirms that “compensation for damages may be sought with respect to all those contracts resulting in the enforcement of the prohibited agreements“, and that such claims imply that the courts having jurisdiction under Article 33(2) of Law No. 287/1990 determine whether or not the agreement is void.
It should be noted that, in the case at issue, the guarantor had not brought a claim for damages but for nullity, and that the Supreme Court considered the claim for nullity only for the purpose of determining which court had jurisdiction over the case. This is because, prior to the examination of the claim for the nullity of the guarantee, the court having jurisdiction will have to ascertain whether the guarantee constitutes the enforcement of an illegal agreement under Law No. 287/1990.
Amendments and additions to the Code of Crisis and Insolvency (Part One).
Legislative Decree No. 147 of October 26, 2020 introduced certain corrections and additions to the so-called Code of Crisis and Insolvency (“Code”) referred to in Legislative Decree No. 14 of January 12, 2019 in implementation of Law No. 155 of October 19, 2017. Let’s see now what the main innovations are.
Through the piece of legislation under discussion, the entry into force of the Code has been postponed to the first of September 2021, although from various quarters, there are rumors of a further extension for another year.
Changes in definitions.
First of all, the definitions in art. 2 of the Code are modified.
In letter a) the concept of crisis is no longer defined as a state of economic-financial difficulty, but rather as an economic-financial imbalance that makes insolvency of the debtor likely. This is not only a lexical innovation, but one that gives a clear technical coloration to the concept of crisis.
The definition of a group of companies has been refashioned, on the one hand by widening the range of exceptions, which no longer includes only the State but also territorial entities, and on the other hand by remodeling the presumption of direction and coordination, which now refers to the company or entity required to consolidate its financial statements or to the controlling company or entity, even indirectly and in the event of joint control.
In letter p) it is specified that the protective measures against acts of individual creditors must be requested by the parties and therefore never operate automatically.
In Article 6 it has been felt the need to further specify that among the credits with super priority arising during the insolvency proceedings are included those credits arising from non-negotiated activities of the bodies in charge of managing the insolvency, provided that they are connected to their functions, compensation claims arising from negligence of the aforementioned bodies, their compensation and professional services required by the same bodies.
The auditor’s obligation.
To be noted among the “whistle blower” obligations incumbent on the control body pursuant to Article 14 of the Code is the addition of the duty to inform the auditor or the auditing firm. Similarly, the auditor or the auditing firm must then inform the control body of the report made to the managing body.
Of great importance with reference to art. 15 and the obligation to report the qualified public creditor is the attenuation of the thresholds at which this obligation is triggered. Now, for the tax authorities, this obligation is envisaged when the total amount of the debt due and not paid for VAT is greater than the following amounts: 100,000 euros, if the turnover resulting from the declaration relating to the previous year is not greater than 1,000,000 euros; 500,000 euros, if the turnover resulting from the declaration relating to the previous year is not greater than 10,000,000 euros; 1,000,000 euros if the turnover resulting from the declaration relating to the previous year is greater than 10,000,000 euros.
The members of the OCRI.
Art. 17 now provides that with regard to the appointment and composition of the OCRI (Organisation for Crisis definition) board, one of the members must be designated by the association representing the debtor’s reference sector.
Investigative activities of the court pending a settlement procedure.
Interesting is the introduction of paragraph 4 bis to article 19, which provides for the possibility for the court seized with a request for the opening of judicial liquidation proceedings to carry out investigatory activities deemed necessary even though a composition procedure is pending, at the outcome of which the request for the opening of judicial liquidation will be admissible.
The role of the Public Prosecutor.
Article 38, which regulates the initiative of the Public Prosecutor for the opening of judicial liquidation, has also been modified. In this case, two paragraphs have been added: the third and the fourth. Worthy of note is the provision in the third paragraph which contemplates the power of the Public Prosecutor to intervene in all proceedings aimed at the opening of a procedure to regulate the crisis and insolvency.
The debtor’s obligations.
Art. 39 of the Code, which regulates the obligations of the debtor requesting access to a procedure to regulate the crisis or insolvency, now stipulates that the lists of creditors of holders of real and personal rights must contain an indication of the digital domicile. It is also established that the report summarizing the acts of extraordinary administration carried out in the previous five years may also be filed in digital format.
For companies not subject to the obligation to draw up financial statements, it is also necessary to file IRAP declarations relating to the previous three years.
Institutions that manage forms of compulsory social security or assistance.
According to the new version of art. 48, the court now approves the restructuring agreements or the arrangement with creditors even in the absence of adhesion on the part not only of the tax authorities, but also of the bodies managing compulsory social security or assistance forms when adhesion is decisive for the purposes of reaching the percentages envisaged by the law and when the proposal to satisfy the aforesaid bodies is convenient with respect to the liquidation alternative.
With reference to the protective measures pursuant to articles 55 and 56 of the Code, a duration of no more than four months is established.
In the second part, which will be published in one of the next newsletters, you will find the innovations regarding agreements in execution of certified reorganization plans, restructuring agreements with extended effects, execution of consumer debt restructuring plans, composition with creditors, claw back actions, the procedure for ascertaining liabilities, fresh start notion, the register of crisis managers and, finally, the organizational structures of companies will be dealt with.
The new regime for the revaluation of corporate assets.
Several revaluation regimes for corporate assets and participation interests were introduced by the Italian law during the recent years. Art. 110 of Law Decree no. 104/2020 provides for a new general revaluation regime for accounting purposes only (no taxes shall be levied) or, alternatively, the option to recognize the higher values assigned to the relevant assets through the payment of a 3% substitute tax.
Art. 110 of Law Decree no. 104 of August 14th, 2020 implemented, with modifications, by Law no. 126 of October 13th, 2020 (re)introduces a “general” revaluation regime that can be applied by all entities carrying out a business activity in Italy (including resident companies, business entities and partnerships, Italian permanent establishments of non-resident companies, etc.) which do not apply IAS/IFRS accounting standards in the preparation of their financial statements.
Under the aforesaid new regime, the applying companies can revaluate corporate assets registered as (i) fixed tangible assets (excluding real estate assets subject of the business activity): (ii) intangible assets, although completely depreciated, as well as (iii) the participating interests in controlled and associated companies resulting from the financial statements at December 31st, 2019.
The revaluation can be “separately” applied to each asset and shall be executed in the first financial statements following that ongoing at December 31st, 2019, i.e., in most of the cases, in the financial statements at December 31st, 2020. As to the entities not adopting as financial year the calendar year, the revaluation can be executed in the 2019/2020 financial statements, provided that the relevant financial statements were approved after October 14th, 2020 and the assets result from the precedent financial statements.
The higher values attributed to the assets following their revaluation can be recognized for income taxes and IRAP purposes (for the purposes e.g. of the depreciation process, non-operating companies test, etc.) starting from the fiscal year following that in which the executed revaluation was made (i.e., from financial year 2021, for entities with a “calendar” financial year) through the payment of a 3% substitute tax (payable in three instalments).
However, as far as the start of effects for the computation of the taxable base of capital gains and losses is concerned, the new regime provides that the capital gains/losses shall be computed considering the “former no-revaluated value” in case the sale (or the exclusion of the asset from the business activities) of the revaluated assets shall occur prior to the fourth subsequent financial year in respect of that in which the revaluation was executed (i.e., prior to January 1st, 2024 for entities whose financial statements follows the calendar year).
The positive revaluation balance shall be registered as a reserve suspended for tax purposes that shall be released by paying an “additional” 10% substitute tax, instead of ordinary taxes. In case such reserve shall not be released, the latter shall be (ordinarily) subject to tax at the time the reserve shall be distributed to the shareholders.
DISCLAIMER: This newsletter merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi. The newsletter does not replace individual legal consultation. Macchi di Cellere Gangemi assumes no liability whatsoever for the content and correctness of the newsletter.
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