JUDGMENT NO. 74

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the proceedings regarding the constitutional legitimacy of Article 281, paragraph 1, of Legislative Decree no. 14 of January 12, 2019 (Code of Business Crisis and Insolvency in implementation of Law no. 155 of October 19, 2017), initiated by the Ordinary Court of Arezzo, Bankruptcy Proceedings Section, in the proceedings between A. M. and the consumer cooperative society M.D.C. and T.M.P. srl, with order of June 26, 2025, registered under no. 189 of the 2025 register of orders and published in the Official Gazette of the Republic no. 41, special series, of the year 2025, the hearing for which was scheduled for the chambers session of February 9, 2026.

Having examined the act of intervention of the President of the Council of Ministers;

having heard in the chambers session of February 23, 2026, the Reporting Judge Antonella Sciarrone Alibrandi;

deliberated in the chambers session of February 23, 2026.

Legal Findings (Factual Part)

1.– By order dated June 26, 2025 (reg. ord. no. 189 of 2025), the Ordinary Court of Arezzo, Bankruptcy Proceedings Section, raised a question of constitutional legitimacy regarding Article 281, paragraph 1, of Legislative Decree no. 14 of January 12, 2019 (Code of Business Crisis and Insolvency in implementation of Law no. 155 of October 19, 2017), in the part where it stipulates that the court must rule on the application for debt discharge "concurrently with the pronouncement of the decree closing the proceedings,” with reference to Article 76 of the Constitution.

1.1.– Preliminarily, the remitting judge states that he is called upon to rule on the appeal, filed by A. M., owner of the sole proprietorship N. C. – against whom the Court of Arezzo, by decree deposited on December 13, 2024, had closed the judicial liquidation procedure (opened on December 30, 2022) due to a completed distribution – in order to initiate a specific voluntary jurisdiction proceeding for the adoption of the debt discharge provision pursuant to Article 281, paragraph 2, of the Code of Business Crisis.

The remitting court specifies that, after noting the potential inadmissibility of the application – not filed, as it should have been, prior to the closing of the procedure –, it had set an interlocutory hearing in the presence of the applicant only.

The latter, however, had, on the one hand, challenged the non-peremptory nature of the term prescribed by Article 281 of the Code of Business Crisis and, on the other hand, pointed out that she had not requested the debt discharge before the closing of the judicial liquidation, having relied on the ex officio declaration thereof by the court, as provided for by the regulations in force before Legislative Decree no. 136 of September 13, 2024, containing "Integrative and corrective provisions to the Code of Business Crisis and Insolvency referred to in Legislative Decree no. 14 of January 12, 2019” (hereinafter, also: 2024 corrective decree), which entered into force "between the filing of the accounting report and the holding of the hearing for its approval,” thus requesting a waiver of the time limits.

Following this, the Court had set the appearance hearing, requesting an opinion from the receiver regarding the debt discharge application (an opinion later rendered positively), and ordering notification to all remaining unsatisfied creditors. Two of the latter, having entered an appearance in the proceedings, opposed the acceptance of the application, complaining of not having received any payment, noting the inadmissibility of the application itself on the basis of the same arguments made by the court ex officio and observing that the filing of the application for judicial liquidation one year after the cessation of due payments would have resulted in the aggravation of the insolvency, constituting the criminal offense of simple bankruptcy.

Having premised this, the remitting judge notes that, in order to decide on the application for debt discharge submitted by a natural person subject to judicial liquidation after the closing of the procedure, it is necessary to first evaluate its admissibility under the reference legislation. More precisely, the Court of Arezzo observes that the combined provisions of Articles 279 and 280 of the Code of Business Crisis lead to the conclusion that, if the judicial liquidation procedure lasts more than three years, at the expiration of the latter, the person subject to the proceeding may access the debt discharge, whereas, if the procedure lasts less time, the discharge is pronounced "at the moment of the closing of the procedure” or "concurrently with the pronouncement of the closing decree” of the same.

Other elements would also militate in support of the exclusion of the possibility of debt discharge subsequent to the closing of the procedure.

First of all, from the comparison between Article 281 of the Code of Business Crisis and Article 143 of Royal Decree no. 267 of March 16, 1942 (Regulations on bankruptcy, composition with creditors, compulsory administrative liquidation) – which, previously, regulated the procedural aspects of debt discharge, referring to the "bankruptcy closing decree” and the "debtor’s appeal presented within the following year” – it would be evident that the possibility of filing an appeal within the year following the closing has been eliminated.

Furthermore, the circumstance that the Code of Business Crisis, already in its original formulation (prior to the 2024 corrective decree), did not provide for the setting of a hearing according to the methods indicated in judgment no. 181 of 2008 of this Court, which concerned Article 143 of the Bankruptcy Law, for the discussion relating to the debt discharge, where requested following the closing of the procedure, would be justified by the fact that there was no longer any room for debt discharge, whose scope was destined to be exercised only within the judicial liquidation procedure, as later expressly confirmed by the 2024 corrective decree.

A further element supporting such an interpretation would be inferred from the explanatory report to the Code of Business Crisis, in which explicit reference is made to the fact that the pronouncement (inherent to the debt discharge application) can intervene either concurrently with the decree closing the procedure, if three years have not yet passed since the date on which the procedure was opened, or – if that time frame has already elapsed and the procedure is still pending – when the debtor requests it.

Nor would the arguments made by the applicant to demonstrate the admissibility of the application be conclusive.

As for the asserted non-peremptory nature of the term, the remitting judge observes that, even assuming such term as purely administrative and not peremptory, it would only result in the possibility of an extension upon request, but not the exclusion of any procedural sanction. With the result that such an argument would not be such as to render the application presented after the term admissible ex se.

As for the evoked application of Article 153 of the Code of Civil Procedure, which allows for the waiver of time limits in the event that the delay in filing the application is due to a non-imputable cause, the remitting judge deems it, for various reasons, not feasible. Firstly, because it would be arduous to qualify as a non-imputable cause the reliance placed on the fact that, before the 2024 corrective decree, the court should have provided ex officio for the declaration of debt discharge concurrently with the closing of the procedure, taking into account that the automatic discharge was in any case provided for only in the case referred to in Article 282 of the Code of Business Crisis, concerning the discharge by law of the over-indebted, and not in the case referred to in Article 281 of the same Code of Business Crisis. Therefore, the reliance would have been placed on an incorrect normative-interpretative datum. In any case, the 2024 corrective decree – also applicable to pending procedures – had clearly affirmed the necessity of the debtor’s application, for which, even wanting to admit a good faith reliance on a certain meaning attributable to the previous legislation, the applicant should have acted immediately after the filing of the closing decree that did not establish anything regarding the discharge, without waiting more than three months.

Nevertheless, the Court of Arezzo believes it cannot reach a declaration of inadmissibility, as it doubts the constitutional legitimacy of Article 281, paragraph 1, of the Code of Business Crisis, in the terms recalled above.

1.2.– On the point of relevance, the remitting judge observes that, according to the current regulatory framework, the introductory application of the main proceedings should be declared inadmissible because it is out of time, so that the applicant would lose any possibility of seeing all the debts incurred in the management of her sole proprietorship extinguished and consequently of having access to credit again to undertake new activities of non-subordinate work.

Moreover, the remitting judge specifies that, in the case in question, the requirements requested by Article 280 of the Code of Business Crisis for the purposes of the debt discharge would seem to exist, even if on the basis of a summary examination, considered that: the applicant has not been convicted of any of the crimes indicated in letter a) of the cited article, nor has she engaged in any of the conduct indicated in the subsequent letter b); as for the reported aggravation of the insolvency, only fraudulent bankruptcy (moreover criminally ascertained) and not simple bankruptcy would constitute an obstacle to the debt discharge and in any case letter b) of the same Article 280 would sanction such aggravation only where it has made the reconstruction of the assets and the movement of business seriously difficult, a circumstance not detected in the case by the receiver; in any case, it would be debatable that the omitted payment of the rent, especially during the pandemic emergency, can be considered a symptom of a will to aggravate the insolvency; finally, the receiver would have confirmed that the applicant, during the procedure, has always collaborated with the receivership and has never benefited in the past from the debt discharge.

In summary, the remitting judge notes that, were the procedural obstacle constituted by the inadmissibility for lateness of the application overcome, the applicant would in all probability see her application accepted.

1.3.– As for, then, the not manifestly unfounded nature of the question of constitutional legitimacy of Article 281, paragraph 1, of the Code of Business Crisis, the Court of Arezzo believes that the cited provision, in the part where it establishes as the maximum term for the presentation of the debt discharge application that of the closing of the judicial liquidation procedure, conflicts with the principles and directive criteria indicated in particular in letter a) of paragraph 1 of Article 8 of Law no. 155 of October 19, 2017 (Delegation to the Government for the reform of the disciplines of business crisis and insolvency).

The latter had, in fact, established that the Government should have "provided for the debtor the possibility of submitting an application for debt discharge immediately after the closing of the procedure and, in any case, after three years from its opening, outside of cases of fraud or bad faith and provided that he has collaborated with the bodies of the procedure.”

The remitting judge notes that, in implementation of Article 21 of Directive (EU) 2019/1023 of the European Parliament and of the Council, of June 20, 2019, concerning preventive restructuring frameworks, debt discharge and disqualifications, and measures to increase the effectiveness of restructuring, insolvency and discharge procedures, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency), (so-called Insolvency Directive), the delegating legislator has provided for the attribution of a right to debt discharge, after a period not exceeding three years running from the date of opening of the procedure. In continuity, instead, with what was already provided for by Article 143 of the Bankruptcy Law, the same delegating legislator would have also recognized the possibility for the debtor to submit an application for debt discharge – should the procedure close before the three-year period – "immediately after the closing of the procedure” and not already by the closing of the same, as prescribed by the Government in alleged violation of the principles and directive criteria of the delegation.

The remitting judge excludes that this is a case of non-exercise of the delegation, which is in itself legitimate according to constant constitutional jurisprudence. The Government would have given full implementation to the delegation, organically remodeling the debt discharge discipline, except for providing for a maximum term for filing the application that is "diametrically different from that contained in Article 8 [paragraph 1, letter a)]” of Law no. 155 of 2017. The latter had indeed attributed to the delegated legislator a margin of discretion, leaving it to the Government to fix, in practice, the term, with the sole indication of allowing the submission of the application "immediately after the closing of the procedure.” Such indication would have, however, imposed that, after the decree closing the judicial liquidation procedure, there was still space for the submission of the debt discharge application, space conversely not provided for by the delegated legislator. For these reasons, Article 76 of the Constitution would be violated, through the conflict with the cited Article 8, paragraph 1, letter a), of Law no. 155 of 2017.

1.4.– In conclusion, the Court of Arezzo specifies that, for the purposes of the reductio ad legitimitatem, it would be sufficient to remove from Article 281, paragraph 1, of the cited Code of Business Crisis the segment of the provision that reads: "concurrently with the pronouncement of the decree closing the procedure.” The provision under examination, despite the partial removal, would retain a plain and rational meaning and would make it possible to request the debt discharge even after the closing of the procedure.

Nor would such a result be contradicted by the provision of Article 279 of the same Code of Business Crisis, the meaning of which would end up being that of recognizing the debtor’s right to obtain the debt discharge after three years have elapsed or even earlier, if the procedure were to terminate before the three-year period, without preventing the request for debt discharge from taking place after the closing of the procedure and that the court provides for it.

Also paragraph 1 of the same Article 281 of the Code of Business Crisis would retain its internal consistency. Although the last sentence of the same – introduced with the 2024 corrective decree – is better suited to the hypothesis in which the procedure is open, nothing would prevent considering the procedure described therein as applicable also in the case in which the application is subsequent to the closing of the same. In this case, the receiver would retain his powers ultra vires for the purpose of communicating the application to all creditors admitted to the liabilities, who could present observations within the 15-day term, so that the court, with the adversarial proceeding established, would rule by collegiate decree adopted in chambers. Alternatively – the remitting judge continues – it could be believed that what is provided for by the last sentence of paragraph 1 of Article 281 refers only to the debt discharge preceding the closing, while for subsequent applications the procedure prescribed in the judgment of this Court no. 181 of 2008, which concerned Article 143 of the Bankruptcy Law, could find application.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney’s Office, and requested that the question raised by the Court of Arezzo be declared inadmissible or in any case unfounded.

The question would be inadmissible first of all because it would imply a choice reserved to the discretion of the delegated legislator, namely the identification of the term, subsequent to the closing of the procedure, within which the debtor would be required to file the application for debt discharge. The solution proposed by the remitting judge – to eliminate, from paragraph 1 of the challenged Article 281 of the Code of Business Crisis, the segment "concurrently with the pronouncement of the decree closing the procedure” – would, in fact, not be adequate as it would allow the submission of the debt discharge application without any precise temporal reference, in contrast to the delegation criterion provided by Article 8, paragraph 1, letter a), of Law no. 155 of 2017, as well as in violation of the principle of legal certainty and of the legitimate expectation of the insolvency creditors, deducible from Article 3 of the Constitution.

The question would, furthermore, be inadmissible due to a lack of relevance.

Given that from the remand order it is clear that the liquidation procedure was closed by decree of December 13, 2024, while the application to obtain the debt discharge was filed in the registry only on March 31, 2025, the intervener believes that the judge a quo should have – also in compliance with the criterion established by the enabling law – in any case acknowledged the lateness of the application, declaring it inadmissible. The temporal clause contained in the enabling law – expressed in the terms "immediately after the closing of the procedure” – could not have translated into such a broad term, such as to allow the filing of the application even after one hundred and eighty days from the closing of the procedure.

On the merits, the question would be groundless, as it was raised without taking into account the need to ensure the implementation, at a national level, of Directive 2019/1023/EU, which occurred after Article 8, paragraph 1, letter a), of the Delegation Law no. 155 of 2017.

Given that Article 21 of the cited directive, in paragraph 2, provides that "[m]ember States shall ensure that the insolvent entrepreneur who has fulfilled the obligations incumbent upon him, where they exist under national law, is discharged from debts at the expiration of the terms for debt discharge without the need to address the judicial or administrative authority to open another procedure beyond those referred to in paragraph 1,” the directive principle contained in letter a) of paragraph 1 of Article 8 of the delegation law no. 155 of 2017 would no longer have been consistent with the ius superveniens brought by the cited directive. The submission of the application after the closing of the procedure would, in fact, have imposed the opening of a new procedure, additional and distinct from the liquidation one, by now defined.

Therefore, the delegated legislator, far from having violated the constitutional mandate, would have conformed to what is provided by Articles 11 and 117, first paragraph, of the Constitution, recognizing the primacy of the European Union discipline, where it established that the application for debt discharge be submitted during the liquidation procedure and before its closing, in order to avoid the opening of a new ad hoc procedure, in contrast to what is provided for at the European level.

Legal Reasoning (Legal Part)

3.– The Court of Arezzo, Bankruptcy Proceedings Section, with the order indicated in the heading (reg. ord. no. 189 of 2025) doubts the constitutional legitimacy, with reference to Article 76 of the Constitution, of Article 281, paragraph 1, of Legislative Decree no. 14 of 2019, in the part where it establishes that the court must rule on the debt discharge application concurrently with the pronouncement of the decree closing the judicial liquidation procedure, deeming it in contrast with the directive principle indicated in Article 8, paragraph 1, letter a), of the Delegation Law no. 155 of 2017, based on which the Government should have "provided for the debtor the possibility of submitting an application for debt discharge immediately after the closing of the procedure (...)”

4.– Preliminarily, it is necessary to examine the exceptions of inadmissibility raised by the President of the Council of Ministers.

5.– Firstly, the intervener excepts the inadmissibility of the question as it would not be possible to identify a constitutionally obligated solution in the legal system, but rather a choice reserved to the discretion of the delegated legislator would be imposed, namely the identification of the term, subsequent to the closing of the procedure, within which the debtor would be required to file the application for debt discharge.

The solution, proposed by the remitting judge, of the annulment of only the segment "concurrently with the pronouncement of the decree closing the procedure” referred to in Article 281, paragraph 1, of the Code of Business Crisis, would be, in his opinion, equally in contrast with the delegation criterion provided by Article 8, paragraph 1, letter a), of Law no. 155 of 2017, since it would allow the submission of the debt discharge application without any precise temporal reference, as well as in violation of the principle of legal certainty and legitimate expectation, in this case of the insolvency creditors, deducible from Article 3 of the Constitution.

5.1.– The exception is groundless.

Premised that, according to the now constant jurisprudence of this Court, "it is sufficient, because the admissibility screening of the questions of constitutional legitimacy raised is passed, ‘the presence in the legal system of one or more "constitutionally adequate” solutions, which fit into the normative fabric consistently with the logic pursued by the legislator’ (thus, among many, judgments no. 6 of 2024 and no. 95 of 2022)” (judgment no. 197 of 2025), in the case in question the reductio ad legitimitatem, also on the basis of the petitum of the remitting judge, would not impose any addition.

In the remand order, in fact, it is not requested an additive pronouncement "that […] grafts into Article 281, paragraph 1, a dies ad quem subsequent to the closing within which the application could be proposed.” What the remitting judge complains about is the asserted conflict of the provision based on which the court, at the debtor’s request, must declare the debt discharge "concurrently with the pronouncement of the decree closing the procedure” with the recalled directive principle of the delegation law, according to which a temporal space must be recognized for the presentation of the debt discharge application "immediately after the closing of the procedure.” Therefore, the mere removal of the wording deemed in conflict with such principle would be sufficient to remedy the vulnus, making possible a reading of the resulting provision, on the one hand compatible with the previous Article 279 of the Code of Business Crisis (which recognizes the right to obtain the debt discharge "at the moment of the closing of the procedure”), on the other hand based precisely on the provision of Article 8, paragraph 1, letter a), of the delegation law. In this way, it would be allowed for the debtor to submit the application for debt discharge also "immediately after the closing of the procedure,” where the latter occurs before three years, and for the court to provide for it, having ceased the constraint of concurrency.

6.– The President of the Council of Ministers raises a further exception of inadmissibility assuming that the question is devoid of relevance.

Given that from the remand order it is clear that the liquidation procedure was closed by decree of December 13, 2024, while the application to obtain the debt discharge was filed in the registry only on March 31, 2025, the intervener believes that the judge a quo should have acknowledged the lateness of the application, declaring it inadmissible also in application of the criterion established by the delegation law, given that the temporal clause "immediately after the closing of the procedure” indicated therein could not in any case have translated into such a broad term.

6.1.– This exception is also not well-founded.

Beyond the interpretative options of the challenged provision, it is undoubted that it is Article 281 of the Code of Business Crisis that dictates the regulation of the procedure for the debt discharge in relation to the judicial liquidation procedure, relevant in this case, where paragraph 1 states that "[t]he court, at the request of the debtor, concurrently with the pronouncement of the decree closing the procedure, […] having heard the bodies of the same and verified the existence of the conditions referred to in Articles 278, 279 and 280, declares unenforceable against the debtor the unsatisfied insolvency debts. […]”

The remitting judge, called upon to deal with such discipline, sees precisely in the provision of the concurrency of the pronouncement on the debt discharge with that of the decree closing the procedure the reason for the inadmissibility of the application presented after three months from the date of such decree, as it is out of time. And he points out, moreover, that – in his opinion, even if on the basis of a summary screening – the substantial requirements indicated by Article 280 of the Code of Business Crisis exist for the purposes of the debt discharge: consequently, were the procedural obstacle constituted by the inadmissibility for lateness of the application overcome, the applicant would in all probability see her application accepted.

This is enough for the purposes of the relevance of the question, "by the usual measure of the non-implausibility of the reasoning provided by the judge of the main proceedings (ex multis, lastly, judgments no. 129 of 2025, point 2 of the Legal Reasoning, and no. 88 of 2025, point 2.2.3. of the Legal Reasoning), remaining then reserved to the merit phase the assessment of whether or not such prospect is shareable” (judgment no. 21 of 2026, point 4.1. of the Legal Reasoning).

The reasoning adduced by the remitting judge, moreover, passes the admissibility screening, even if one considers that the judgment on relevance "disregards the influence of the question of constitutional legitimacy on the outcome of the proceedings a quo, being sufficient that the remitting judge must make application of the challenged provision in his logical-argumentative path (among many, judgments no. 44 of 2025, no. 25 of 2024, no. 88 and no. 19 of 2022 and no. 202 of 2021)” (judgment no. 23 of 2026, point 5.4.3.4. of the Legal Reasoning).

7.– On the merits, the question is not well-founded, in the terms specified below.

7.1.– As this Court has already had occasion to emphasize, the institution of debt discharge, especially as reformed by the Code of Business Crisis referred to in Legislative Decree no. 14 of 2019, entailing "the unenforceability against the debtor of the debts remaining unsatisfied within the scope of a judicial liquidation or controlled liquidation procedure” (Article 278, paragraph 1), aims to "‘reallocate usefully [the debtor] within the economic and social system, without the weight of previous exposures’ (judgment no. 245 of 2019)” (judgment no. 65 of 2022).

The mechanism under examination, in the wake of European Union law, "sacrifices the residual creditor reasons – entailing a financial responsibility limited in time – in order to allow non-undeserving debtors a ‘restart’ (the so-called fresh start)” (judgment no. 6 of 2024).

Such ratio already emerges from the delegation law no. 155 of 2017, which, in setting the principles and directive criteria of the reform of the discipline of business crisis and insolvency, reveals – as can be inferred from the preparatory works – the urgency to intervene in the sector to implement the "solicitations coming from the European Union and in particular from the recommendation [(EU)] 2014/135 [of the Commission of March 12, 2014 on a new approach to business failure and insolvency],” among other things in view of the latter’s objective to "give a second chance throughout the Union to honest entrepreneurs who fail” (recital no. 1), admitting them as soon as possible to the "benefit of full release from debts subject to bankruptcy after a maximum of three years” (paragraph 30). An objective, this, subsequently pursued also by the Insolvency Directive – whose proposal had already been presented in 2016 – where it requires States to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and the freedom of establishment by guaranteeing, among other things, "to honest insolvent or over-indebted entrepreneurs the ability to benefit from a second chance through debt discharge after a reasonable period of time” (recital no. 1) and on the basis of a simplification of procedures. Precisely for this purpose, Article 21 of that directive provides, in fact, that Member States not only ensure "that the period after which the insolvent entrepreneur can be fully released from his debts is not longer than three years” (paragraph 1), but also "that the insolvent entrepreneur who has fulfilled the obligations incumbent upon him, where they exist under national law, is released from debts at the expiration of the terms for debt discharge without the need to address the judicial or administrative authority to open another procedure” (paragraph 2).

In this framework must be inserted Article 8 of the cited delegation law, which, especially in paragraph 1, letter a), attributes to the delegated legislator the task of "providing for the debtor the possibility of submitting an application for debt discharge immediately after the closing of the procedure and, in any case, after three years from its opening, outside of cases of fraud or bad faith and provided that he has collaborated with the bodies of the procedure.”

7.2.– In implementation of the delegation, the Code of Business Crisis, since the first version referred to in Legislative Decree no. 14 of 2019 (moreover entered into force only on July 15, 2022, following various extensions and numerous corrective and modifying interventions), not only reaffirmed the centrality of the institution of debt discharge, already contemplated in the Bankruptcy Law, but also significantly extended its scope of adoption.

With regard to the temporal conditions of access and the procedure to obtain the debt discharge, since its first formulation, Article 281 of the Code of Business Crisis has established that "1. The court, concurrently with the pronouncement of the decree closing the procedure, having heard the bodies of the same and verified the existence of the conditions referred to in Articles 278, 279 and 280, declares unenforceable against the debtor the unsatisfied insolvency debts. 2. In the same way the court provides, at the request of the debtor, when at least three years have elapsed from the date on which the judicial liquidation procedure was opened.” Such provision is linked to what is provided by Article 279 which – originally with exclusive reference to the debt discharge connected to the judicial liquidation procedure – expressly recognized in favor of the "deserving” debtor the "right to obtain the debt discharge after three years have elapsed from the opening of the liquidation procedure or at the moment of the closing of the procedure, if earlier” (paragraph 1).

With Legislative Decree no. 136 of 2024, which entered into force on September 28, 2024, were adopted, as emerges from the explanatory report, "integrative provisions of coordination of the same Code” as well as "corrective provisions” to "cope with the interpretative and applicative criticalities emerged in the first implementation phase of the Code,” as it was said enacted in 2019, corrected even before its entry into force, and then already further modified for the transposition of Directive 2019/1023/EU with Legislative Decree no. 83 of June 17, 2022, containing "Amendments to the Code of Business Crisis and Insolvency referred to in Legislative Decree no. 14 of January 12, 2019, in implementation of Directive (EU) 2019/1023 of the European Parliament and of the Council of June 20, 2019, concerning preventive restructuring frameworks, debt discharge and disqualifications, and measures to increase the effectiveness of restructuring, insolvency and discharge procedures, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).”

In the same explanatory report of Legislative Decree no. 136 of 2024 the ratio of the intervention is explicitly identified in the need to improve the understanding of the new institutions and to thus facilitate the effectiveness and efficiency of the system of management of the crisis and of the insolvency "keeping in mind the perspective adopted by the European legislator in terms of facilitation of early restructuring, of debt discharge and of rapid and efficient liquidation procedures.”

In such context, Article 279 of the Code of Business Crisis has become a general rule on debt discharges, as inherent also to those referred to the controlled liquidation procedures, remaining however unchanged the discipline already provided therein, which attributes to the debtor the right to obtain the debt discharge "after three years have elapsed from the opening of the liquidation procedure or at the moment of the closing of the procedure, if earlier.”

Article 281, paragraph 1, concerning only the debt discharges related to judicial procedures, has undergone, instead, a double modification. Firstly, the provision was introduced according to which the court declares "at the request of the debtor” – always concurrently with the pronouncement of the decree closing the procedure and having heard the bodies of the same – the unenforceability against the same of the unsatisfied insolvency debts. Furthermore, it was established, in the second sentence, that the debtor’s application must be communicated by the receiver to the creditors admitted to the liabilities, who can present observations within the 15-day term.

7.3.– Premised this and considered that the verification of conformity of the delegated norm with respect to the delegating one requires a "systematic and teleological investigation to verify if the activity of the delegated legislator, in the exercise of the margin of discretion that pertains to him in the implementation of the delegation law, has inserted itself in a consistent way in the overall regulatory framework, respecting the ratio of the delegating norm […] and maintaining itself in any case in the bed of the fundamental choices made by the same (judgment no. 278 of 2016), without conflicting with the general directions deducible from this (judgments no. 229 of 2014, no. 134 of 2013 and no. 272 of 2012)” (judgment no. 7 of 2024), it must be believed that the deduced violation of Article 76 of the Constitution is groundless, where the challenged provision is correctly interpreted.

Indeed, the provision according to which the court declares the debt discharge, at the request of the party, "concurrently with the pronouncement of the decree closing the procedure” (Article 281, paragraph 1, Code of Business Crisis), can and must be understood – unlike what is maintained by the remitting judge – in the sense of not precluding to the debtor the possibility of submitting an application for debt discharge "immediately after the closing of the procedure,” as prescribed by Article 8, paragraph 1, letter a), of the delegation law no. 155 of 2017.

Both the provision of the delegation law and that introduced by the delegated legislator, must, in fact, be read in light of the overall ratio of the discipline under examination which, in accordance with the European legislation on debt discharge, is aimed at allowing the "deserving” debtor to obtain as soon as possible, and in any case after three years have elapsed, within the scope of a single procedure (of judicial liquidation or of controlled liquidation), the release from the unsatisfied debts.

Certainly in harmony with the principle of favor debitoris – of which are expression both the request of the uniqueness of the procedure, and that of allowing the debt discharge in a prompt way, formulated by the aforementioned Article 21, paragraphs 1 and 2, of Directive 2019/1023/EU – is the provision based on which the debtor who has submitted the application during the procedure has the right to obtain the debt discharge already "at the moment of the closing” of the same (Article 279, paragraph 1, Code of Business Crisis), if earlier than the passing of three years from the opening of the same.

Similarly in line with the same favor debitoris results also the directive criterion (Article 8, paragraph 1, letter a, of Law no. 155 of 2017) which committed the delegated legislator to provide for the possibility, for the debtor, of submitting the application for debt discharge "immediately after” the closing of the procedure, so that to such provision must be assigned a decisive role in the exegesis of the provision introduced by the delegated legislator. And this even more in consideration of the fact that, in the absence of an obligation for the receiver or the liquidator to inform the debtor of the imminent closing of the procedure, it may well happen that the latter takes place without the debtor being informed.

Consequently, Article 281, paragraph 1, of the Code of Business Crisis, where it provides that the court, at the request of the party, declares unenforceable the unsatisfied insolvency debts, "concurrently with the pronouncement of the decree closing the procedure” (having heard the bodies of the same and verified the existence of the conditions of admissibility) – and moreover after evaluation of the observations presented by the creditors themselves within the 15-day term from the communication of the debt discharge application by the receiver –, must be understood in the sense of referring to a "logical concurrency” rather than strictly "chronological.” This allows for affirming that such concurrency exists not only when the court, having received the debtor’s application before the conclusion of the procedure, provides for the debt discharge directly with the decree closing the same, but also when, where the application has been submitted "immediately after” the closing, the court pronounces the debt discharge with a subsequent decree, at the outcome of a sub-procedure carried out still within the scope of the judicial liquidation.

The "uniqueness of the procedure” requested by EU law occurs, in fact, certainly when said application is submitted before the closing decree acquires effectiveness, according to what Article 235, paragraph 4, of the Code of Business Crisis provides, but also all the times in which the submission of the same takes place in the period of ultra vires of the bodies of the insolvency procedure (for example, in the cases contemplated by Article 234 of the Code of Business Crisis).

A similar situation, moreover, could have occurred in the proceedings a quo, in which the Court, having received the debt discharge application after the closing decree, has set the appearance hearing and both the receiver and the creditors have formulated their opinions on the same application.

The interpretation that is imposed in the light of the parameter of Article 76 of the Constitution, always in harmony with the law of European derivation, guarantees, at the same time, the greatest possible promptness of the debt discharge (given that it is in the interest of the debtor to formulate the application as soon as possible) and an adequate protection of the creditors, who in any case do not remain exposed sine die to a situation of uncertainty.

Considered the delicacy of the interests at stake, remains obviously entrusted to the evaluation of the legislator, in the exercise of his wide discretion in the shaping of the procedural institutions (ex multis, judgments no. 146 and no. 76 of 2025), an intervention of reorganization of the discipline under examination, fruit of multiple and fragmentary normative interventions followed one another in a short span of time, aimed at better balancing, in the priority perspective of the favor debitoris, the full unfolding of the right to submit the application for debt discharge with the need for the identification of a more defined time frame, taking into account all the possible systematic implications.

for these reasons

THE CONSTITUTIONAL COURT

declares the question of constitutional legitimacy of Article 281, paragraph 1, of Legislative Decree no. 14 of January 12, 2019 (Code of Business Crisis and Insolvency in implementation of Law no. 155 of October 19, 2017), raised, with reference to Article 76 of the Constitution, by the Ordinary Court of Arezzo, Bankruptcy Proceedings Section, with the order indicated in the heading, not well-founded, in the terms of the reasoning.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 23, 2026.

Signed:

Giovanni AMOROSO, President

Antonella SCIARRONE ALIBRANDI, Reporting Judge

Igor DI BERNARDINI, Chancellor

Deposited in the Registry on May 12, 2026

 

The anonymized version complies, in the text, with the original.