From the Code of the Enterprise Crisis and Insolvency to the Emergency Discipline Covid -19: The Need for Market Intervention
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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 government 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 S mse 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 S mse 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 S mse through fundraising platforms. As is known, the T uf already provides for the possibility for unlisted S mse 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 S mse access to financial markets also for the trading of capital shares and not only for the I po 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.