BANKING AND FINANCE | The Supreme Court on privilege pursuant to Article 9.5 Legislative Decree No. 123/1998

On 12 March 2025, the Italian Supreme Court issued the decision No. 6570/2025 regarding the recognition of a privilege pursuant to Article 9.5 of Legislative Decree No. 123 of 31 March 1998 (the “Privilege”) to the credit of Sace – Servizi Assicurativi per il Commercio Estero S.p.A. ( “SACE”) arising from the enforcement of the public guarantee issued by SACE itself in relation to a facilities agreement following a declaration of insolvency (the “Guaranteed Credit”). Specifically, in the context of an insolvency proceeding and SACE’s opposition to the related statement of liabilities (stato passivo) of the borrower, SACE requested the recognition of the Privilege over the Guaranteed Credit previously denied by the decision of the Court of Bologna highlighting that a facility guaranteed by the Guarantee, is considered a public support falling within the scope of Legislative Decree No. 123/1998 and that the claim for repayment arising from the enforcement of the Guarantee was therefore covered by the Privilege. The Supreme Court declared that in the scope of public facilities to enterprises, inter alia, (a) a privilege is always recognised to any public guarantees to facilities agreements, regardless of the nature of the guarantee or the termination of the latter and, in particular, without the necessity of an administrative decision about the cancellation of such guarantee (as previously stated by Italian Supreme Court decision No. 27360/2024); (b) the Privilege arises from the date of the payment of the guarantee by the public entity, even if the guarantee is withdrawn after the establishment of a concordato preventivo (or other insolvency proceedings) by the borrower; and (c) the withdrawal of the guarantee entails an independent obligation ex lege, which entitles the guarantor’s credit to be considered privileged.

Newsletter n. 106 – April 2025