"NEWS April 20, 2016-BANKRUPTCY PROCEDURES and the TRANSFER of the REGISTERED Abroad"
It is not uncommon to find consultants who propose transfers of registered offices abroad to steal the enterprise in crisis to the judgement of the Italian Authorities.
You have to wonder what the effectiveness of such solutions.
The national legislature ruled the local jurisdiction in article 9 L.F.: "bankruptcy is declared by the Court for the place where the entrepreneur has the Head Office of the enterprise. The transfer of the registered intervened in the year preceding the financial year of the initiative for the Declaration of bankruptcy does not detect for the purposes of jurisdiction. The entrepreneur, who overseas the Head Office of the enterprise, can be declared bankrupt in Malaysia although it has been pronounced filing for bankruptcy overseas. Are subject to the international conventions and EU legislation. The relocation of the company headquarters abroad does not exclude the existence of Italian jurisdiction, if it occurred after the filing of the application referred to in article 6[ricorso del debitore, di uno o più creditori o su richiesta del pubblico ministero – n.d.r.] or the presentation of the request referred to in article 7[iniziativa del pubblico ministero – n.d.r.] ".
In terms of Community legislation, it emphasizes the importance of the COMI, according the English acronym of centre of main interests, consecrated notion, albeit in the absence of a definition in article 3 of the EU Regulation n. 1346 of insolvency May 29, 2000: so, the courts of the jurisdiction in which the debtor has his centre of main interests.
The Court of Justice held that we can identify as a center of interests of an insolvent Corporation the main administration in the same place, understood as the actual Centre of the direction, management and control, based on objective factors and recognizable by third parties.
Therefore, it must be concluded that transfers of fictitious registered does not deduct the company insolvent at his natural judge. This pithy conclusion has repeatedly been confirmed.
In this regard, recently, the Court of Cassation, decision SS. UU. February 17, 2016, n. 3059, confirmed that the Italian jurisdiction in case the effective exercise of the business activity does not follow the formal transfer of the registered office abroad: the Supreme Court, on the heels of a constant orientation (Cass. SS. UU. # 3368/2006; Cass. SS. UU. # 15880/2011), has, in fact, be considered a matter for the national court to a corporation that, at the onset of insolvency, had transferred its registered office abroad, without dislocate entrepreneurial activities.
The Stoats identify the "Centre of interest" in Italy and submit the company insolvent at the Italian Court, having regard to clues such as the existence of an organization, the permanent residence in Italy of the legal representative or corporate officers, the size of the debt (in particular: public funds and pension funds), the existence of a telephone company in Italy that allows notifications, no actual exercise of entrepreneurial activity in the new headquarters (see as "Briefcase suspended in the Chambers of") , the unavailability at the new registered office, the transfer in full "suspect period" and the Receivables Aging prior to transfer.
A confirmation that the principle is found in another recent ruling contrariis of Supreme Court (Cass. SS. UU. # 2201/2016), which stipulates the nullity of notification of bankruptcy and the Decree of establishment of audience to the old Italian legal representative, where the COMI is abroad as a result of relocation.
On the basis of the principles mentioned, the substantive law has repeatedly said the Italian jurisdiction (ex multis: Trib. Padua, October 15, 2015).
Thus may end: it is useless to transfer fictitiously registered offices abroad in an attempt to escape the inevitable declaration of bankruptcy, because the jurisdiction of the Italian judge remains.