Le ricadute di diritto italiano della regola di non discriminazione nella Direttiva Restructuring

The essay is about the non-discrimination rule in restructuring plans. This rule has been introduced by the recent EU Directive on preventive restructuring frameworks (2019/1023) and governs the horizontal relationships between classes of claimants in restructuring plans. Firstly, the article attempts to identify the origins and legal basis of the non-discrimination rule in restructuring. To this end, reference is made (also) to the interpretation of this rule that has been proposed in the US system. In addition, given the duty of the Member States, including Italy, to implement the Restructuring Directive in their national legal systems, the compatibility between the European non-discrimination rule and the current framework of the “concordato preventivo” is examined. The conclusion is that the Italian framework in terms of balancing the technique of parties’ autonomy (“autonomia”) and that of public regulation (“eteronomia”) in the regulation of the horizontal relationships between classes in the “concordato preventivo” needs to be reconsidered, at least in light of the duty of the Italian legislator to implement the Restructuring Directive into national law.