From the Code of the Enterprise Crisis and Insolvency to the Emergency
Discipline Covid-19: The Need for Market Intervention (J.e.l.: G01; G38; K22; L51)
Smse are the subjects that are most at risk of being cut out of the aid mechanisms due
to the stringency of the prudential supervisory requirements envisaged by Basel. The
use of public resources in support of a company requires necessary corrections to the
governance mechanisms due to the State control over the ability of the recipients of the new finance to repay the debt. This means that the paying State enters the gov ernment as a direct financier or as guarantor of the banks to which the management
of the liquidity introduced by the European circuit is entrusted. The issue appears
complex because it implies a completely innovative assessment also of the role of the
bodies of the insolvency procedures, in particular of the judicial commissioner in the
«concordato preventivo» who could even be entrusted with a position as manager of
the company as a guarantee.
The need to encourage access to financial markets for Smse appears immediate also
in light of the further indebtedness that will result as a result of the «freezing» until 30
September 2020 of the credit facilities enjoyed by companies and the suspension of
repayments of leasing loans with public guarantee of 33 % (art. 56 Italian Care Decree).
On the other hand, it seems necessary to focus attention on the tools already provided
for by the regulation to encourage Smse access to financial markets, thus expanding the
possibility of structurally weaker companies to find through the public offer of tools
equity investments which, instead of increasing the debt, raise the equity items. The
need for legislative intervention also in relation to the discipline of financial markets
appears appropriate to encourage the listing Smse through fundraising platforms. As
is known, the Tuf already provides for the possibility for unlisted Smse to raise risk
capital (shares and quotas) through equity crowdfunding platforms. In this article we
assume the possibility to use crowdfunding platforms for the increasing of Smse access
to financial markets also for the trading of capital shares and not only for the Ipo phase.
On the other hand crowdfunding may play an important role in the contest of enterprise restructuring. The use of crowdfunding in concordato preventivo procedures may
increase the competing offers and guarantee a better satisfaction of creditors
