By Order No. 23075/2026, published on 12 July 2026, the First Civil Division of the Italian Supreme Court of Cassation addressed the issue of the effects produced by an order approving a concordato preventivo (composition with creditors) on the existence and extent of creditors’ claims.
The Italian Supreme Court clarified that, unlike the judicial liquidation of the enterprise, the composition with creditors does not provide for “a judicial determination of claims against the debtor for the purpose of identifying competing claims entitled to participate in the distribution of the estate. Rather, they provide only for the identification of the body of creditors solely for voting purposes and for calculating the statutory majorities” (Italian Supreme Court, No. 23075/2026).
Under the current Italian insolvency framework, the judicial liquidation of the enterprise has been conceived as a residual remedy compared with restructuring procedures. Accordingly, the judicial liquidation of the enterprise is regarded as the extrema ratio in relation to the instruments available for addressing business crisis and insolvency, with business continuity constituting the guiding principle of the entire legislative framework.
With a view to preserving business continuity, the legislature has strengthened directors’ and entrepreneurs’ management responsibilities by imposing a twofold obligation. First, they must establish organisational, administrative and accounting arrangements appropriate to the nature and size of the enterprise, including for the timely detection of signs of financial distress. Secondly, they are required to take prompt action to adopt and implement one of the restructuring tools provided under Italian law in order to overcome the crisis and restore business continuity.
It is within this broader framework that the institution of the composition with creditors, comprehensively reformed by the Italian Code of Business Crisis and Insolvency, must be understood.
Within the composition with creditors, there is no judicial determination of either the existence, amount or legal nature of creditors’ claims. Instead, the procedure merely involves an identification of claims for the limited purpose of determining which creditors are entitled to vote and whether the statutory voting majorities have been achieved.
Consequently, given the non-adjudicative nature of that procedure, any dispute concerning the correct quantification of a credit or the existence of priority rights must be resolved through ordinary civil proceedings.
This conclusion follows from the decisive consideration that with the approval order giving rise “exclusively to a definitive reduction in the amount of creditors’ claims”, while “not giving rise to res judicata as regards the existence, amount or ranking of those claims, nor with respect to any other rights involved in the proceedings” (Italian Supreme Court, No. 23075/2026).
In other words, the composition with creditors “binds creditors, irrespective of whether they voted in favour of the proposal, to the percentage recovery provided under the composition plan and renders enforcement proceedings inadmissible […] however, since it does not include a genuine claims verification stage comparable to that provided for in bankruptcy proceedings, it does not bind either the creditor or the debtor as regards the actual amount of the claim” (Italian Supreme Court, First Civil Division, 15 March 2026, No. 5845).