Preventive Restructuring Under Directive (EU) 2019/1023

This Mentored Paper, written by Louis Athmann and Simone Colavecchia under the guidance of Professor Gaboardi, examines the implementation of the 2019 EU Restructuring Directive across the European Union, with particular emphasis on the German and Italian legal systems. It aims to provide a clear account of the Directive’s legal framework and the challenges arising from its practical application.

47 min read By Louis Athmann 2026-09-24
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Preventive Restructuring Under Directive (EU) 2019/1023: A Comparative Analysis of the German and Italian Implementations

   by Simone Colavecchia & Louis Constantin Athmann

1. Introduction

Directive (EU) 2019/1023 represents one of the most significant developments in European insolvency and restructuring law in recent decades. By promoting preventive restructuring mechanisms aimed at preserving economically viable businesses before formal insolvency occurs, the Directive reflects a broader shift away from traditional liquidation-oriented approaches toward a rescue-based restructuring culture.

This development must be understood within the wider context of European economic integration. Divergent national insolvency regimes have long generated legal uncertainty, increased transaction costs, and complicated cross-border investment and restructuring within the internal market. The Directive therefore pursues not only domestic restructuring efficiency, but also a broader harmonising objective intended to facilitate market integration and improve the predictability of cross-border restructuring outcomes.

At the same time, however, the Directive is founded on a model of minimum harmonisation. While Member States are required to implement certain core restructuring mechanisms, they retain substantial discretion regarding access thresholds, judicial involvement, creditor voting structures, and the institutional design of restructuring procedures. As a result, the Directive creates a framework of partially convergent objectives implemented through potentially divergent national legal architectures.

The German and Italian transpositions provide particularly instructive examples of this dynamic. Germany implemented the Directive through the Unternehmensstabilisierungs- und -restrukturierungsgesetz (StaRUG), which introduced a highly structured and market-oriented pre-insolvency restructuring framework characterised by limited judicial intervention and a strong emphasis on creditor coordination and legal certainty. Italy, by contrast, implemented the Directive through amendments to the Codice della Crisi d’Impresa e dell’Insolvenza (CCII), preserving a more judicially intensive restructuring model rooted in the historical concordato tradition and characterised by broader court supervision and procedural intervention.

This paper examines how these two jurisdictions operationalise the Directive’s preventive restructuring framework and what this reveals about the limits of European harmonisation in insolvency law. It first analyses the normative and economic foundations underlying the Directive, particularly the shift toward early intervention, going-concern preservation, and coordinated creditor restructuring. It then compares the German and Italian implementations with particular attention to access conditions, creditor coordination mechanisms, and the institutional role of courts within the restructuring process.

The paper argues that, despite pursuing formally similar objectives, the German and Italian frameworks embody fundamentally different conceptions of the relationship between courts, creditors, and distressed debtors. Germany has adopted a facilitative and market-oriented restructuring architecture designed to maximise procedural efficiency and party autonomy, whereas Italy has retained a more protective and judicially mediated model that prioritises supervision and institutional control. The comparison ultimately illustrates how minimum harmonisation, while capable of generating convergence at the level of legislative objectives, may nevertheless produce substantial divergence at the institutional and procedural level.

2. Normative and Economic Foundations of the Directive

2.1. From Insolvency to Likelihood of Insolvency

One of the most significant innovations introduced by Directive (EU) 2019/1023 lies in the temporal shift of legal intervention from actual insolvency to the earlier stage of a “likelihood of insolvency”. Traditionally, insolvency law within many European jurisdictions operated primarily as a mechanism for managing failure once financial collapse had already materialised. Formal proceedings were commonly triggered only after the debtor became unable to satisfy obligations as they fell due, at a stage where asset deterioration, reputational damage, and the breakdown of commercial relationships had often already significantly reduced the possibility of business rescue.

The Directive departs from this logic by requiring Member States to ensure access to preventive restructuring frameworks where insolvency is merely likely rather than already established. This approach is reflected most directly in Article 4(1), read together with Article 2(2)(b), which introduces the concept of “likelihood of insolvency” as the relevant threshold for preventive intervention. Importantly, however, the Directive deliberately refrains from providing a uniform definition of this concept. Instead, Member States retain discretion in determining how the threshold is to be operationalised within their domestic legal systems.

This legislative choice reflects both practical and structural considerations. Financial distress rarely emerges through a single identifiable event; rather, it develops progressively and manifests differently depending on the size of the undertaking, the nature of its financing structure, and the economic sector in which it operates. A rigid harmonised definition would therefore risk either triggering intervention too early, thereby unnecessarily burdening viable businesses, or too late, when restructuring may no longer preserve meaningful going-concern value. By leaving the concept open-textured, the Directive seeks to preserve flexibility while still encouraging earlier intervention than traditional insolvency regimes historically permitted.

From an economic perspective, the emphasis on early intervention is closely connected to the prevention of value destruction. Once insolvency becomes fully apparent, distressed firms frequently experience accelerating deterioration caused by liquidity shortages, declining creditor confidence, termination of commercial contracts, and withdrawal of trade credit. Delayed intervention may therefore transform temporary financial distress into irreversible economic collapse. Preventive restructuring seeks to interrupt this dynamic before it reaches that stage. The earlier restructuring negotiations begin, the greater the likelihood that productive activity, contractual relationships, organisational knowledge, and workforce stability can be preserved.

At the same time, however, the shift toward earlier intervention also creates structural risks. Preventive restructuring frameworks inevitably involve a tension between facilitating rescue and preventing strategic abuse by debtors whose businesses are no longer economically viable. Excessively permissive access thresholds may enable debtors to postpone inevitable liquidation while continuing to impose losses upon creditors, employees, and commercial counterparties. The Directive therefore attempts to balance accessibility with safeguards designed to ensure that restructuring mechanisms remain limited to debtors with at least a realistic prospect of viability.

This tension becomes particularly important in the comparative context of the German and Italian implementations. Although both systems formally implement the Directive’s preventive logic, they operationalise the concept of early intervention in significantly different ways. Germany adopts a comparatively precise and economically calibrated threshold through the concept of drohende Zahlungsunfähigkeit, whereas the Italian framework employs a broader and more flexible conception of crisi linked to the debtor’s economic and financial imbalance. The divergence illustrates the extent to which minimum harmonisation permits national legal traditions to shape the practical meaning of preventive restructuring access.

2.2. Preservation of Going-Concern Value

The economic rationale underlying preventive restructuring is fundamentally centred on the preservation of going-concern value. Modern insolvency theory increasingly recognises that the value of a functioning enterprise frequently exceeds the aggregate value obtainable through piecemeal liquidation of its individual assets. A business operating as a coherent economic unit generates value not only through tangible property, but also through organisational structures, workforce coordination, contractual relationships, market reputation, intellectual capital, and accumulated commercial know-how. These elements are often difficult, or impossible, to preserve once liquidation proceedings commence.

The Directive reflects this economic understanding throughout its structure and recitals. Rather than conceiving insolvency law primarily as a mechanism for distributing losses following business failure, the Directive approaches restructuring as a tool for preserving economically productive activity wherever viable continuation remains possible. In this respect, the preventive restructuring framework embodies a broader shift in European insolvency policy away from purely liquidation-oriented conceptions of creditor protection toward a model increasingly concerned with value maximisation and economic continuity.

The preservation of going-concern value produces advantages across multiple stakeholder groups. Creditors may obtain higher recoveries through continued operation than through distressed asset sales conducted under liquidation conditions. Employees benefit from the preservation of employment relationships and productive activity. Suppliers and commercial counterparties avoid the disruption associated with abrupt market exit, while the broader economy benefits from reduced systemic costs linked to business failure, including unemployment, supply-chain instability, and reduced market confidence. The Directive therefore frames restructuring not merely as debtor protection, but as an instrument for maximising overall economic value.

At the same time, however, the preservation of going-concern value cannot constitute an autonomous objective independent of economic viability. Preventive restructuring is efficient only where the underlying business remains capable of generating sustainable future value. Where viability is absent, restructuring merely delays liquidation while increasing losses for creditors and distorting market allocation mechanisms. This distinction between viable and non-viable firms is therefore structurally central to the Directive’s architecture.

The Directive itself implicitly recognises this limitation by repeatedly linking preventive restructuring to the rescue of economically viable enterprises rather than to the preservation of distressed businesses as such. The effectiveness of preventive restructuring frameworks consequently depends not only on the availability of restructuring tools, but equally on the existence of credible mechanisms capable of distinguishing temporary financial distress from irreversible economic failure. This viability assessment emerges as one of the defining institutional challenges within both the German and Italian transpositions.

Germany addresses this issue through relatively strict access requirements and a highly structured restructuring framework designed primarily for financially sophisticated debtors. Italy, by contrast, places greater emphasis on negotiated restructuring procedures accompanied by judicial supervision and independent expert assessment. Although both systems pursue the same general objective of preserving going-concern value, they allocate responsibility for viability assessment differently, thereby reflecting distinct conceptions of the relationship between markets, courts, and restructuring governance.

2.3. Collective Action and Creditor Coordination

A central justification for preventive restructuring frameworks lies in their capacity to address collective action problems among creditors. In the absence of a coordinated legal mechanism, creditors acting individually may pursue strategies that maximise their own short-term recovery while simultaneously reducing the aggregate value available to the creditor body as a whole. This dynamic is particularly acute in cases involving numerous creditors with heterogeneous interests and varying levels of bargaining power.

One manifestation of this problem is holdout behaviour. Individual creditors may refuse to participate in a restructuring agreement in the expectation that other parties will accept concessions, thereby allowing the dissenting creditor either to enforce its claim in full or to extract preferential treatment. Even where a restructuring would increase total recoverable value for creditors collectively, rational individual incentives may therefore prevent agreement from emerging voluntarily. Preventive restructuring frameworks seek to overcome this coordination failure through majority voting mechanisms capable of binding dissenting minorities.

A related problem arises through race-to-enforcement dynamics. Where creditors anticipate impending financial collapse, each creditor may attempt to enforce claims individually before other creditors do so. Such behaviour frequently accelerates value destruction by fragmenting the debtor’s assets, disrupting ongoing business activity, and undermining the possibility of coordinated restructuring negotiations. Preventive restructuring frameworks address this risk principally through temporary stays on individual enforcement actions, thereby preserving the debtor’s operational stability while negotiations proceed.

The Directive operationalises creditor coordination primarily through class formation, majority voting procedures, and cross-class cram-down mechanisms under Articles 9 to 11. Creditors are grouped according to sufficiently homogeneous economic interests, and restructuring plans may be approved through qualified majorities within each class. Under certain conditions, dissenting classes may additionally be bound through judicially confirmed cross-class cram-down. These mechanisms transform restructuring from a purely contractual process dependent upon unanimity into a hybrid procedure combining private negotiation with elements of collective legal enforcement.

The introduction of cram-down mechanisms constitutes one of the Directive’s most structurally important innovations because it directly addresses the holdout problem that historically limited the effectiveness of consensual restructuring systems. At the same time, however, cram-down also raises concerns regarding the protection of minority creditors and the legitimacy of imposing restructuring outcomes upon dissenting parties. The Directive therefore attempts to balance restructuring efficiency against procedural fairness through safeguards such as the best-interest-of-creditors test, judicial confirmation requirements, and protections linked to class formation and priority rules.

The German and Italian implementations again reveal divergent institutional approaches to this balance. Germany adopts a comparatively market-oriented and technically formalised voting structure under StaRUG, designed to maximise predictability and creditor coordination efficiency. Italy incorporates similar mechanisms through the PRO while simultaneously preserving a more extensive role for judicial review and procedural supervision. The comparison therefore illustrates how identical Directive instruments may operate differently depending upon the broader institutional environment into which they are introduced.

2.4. Debtor-in-Possession and the Governance of Restructuring

Another defining feature of Directive (EU) 2019/1023 is the adoption of the debtor-in-possession (DIP) principle. Under Article 5(1), debtors generally remain in control of their assets and business operations during the restructuring process, unless the appointment of a restructuring practitioner becomes necessary in specific circumstances.

The DIP model reflects a significant departure from traditional insolvency systems in which management control was frequently displaced upon commencement of formal proceedings. Historically, insolvency law often operated on the assumption that financial distress itself demonstrated managerial failure and therefore justified external control by administrators, trustees, or court-appointed officers. Preventive restructuring instead proceeds from the assumption that preserving managerial continuity may increase the likelihood of successful rescue, particularly where existing management possesses specialised operational knowledge and established commercial relationships essential to maintaining business continuity.

From an economic perspective, the DIP model seeks to minimise disruption during restructuring negotiations. Abrupt displacement of management may undermine employee confidence, destabilise supplier relationships, and generate uncertainty among customers and investors. By preserving operational continuity, preventive restructuring frameworks aim to create an environment in which negotiations can proceed without triggering the destabilising effects traditionally associated with formal insolvency proceedings.

At the same time, however, retaining debtor control inevitably generates agency concerns. Debtors approaching insolvency may possess incentives to delay restructuring, conceal financial deterioration, favour particular creditors, or pursue excessively risky strategies designed to preserve equity value at creditors’ expense. The Directive therefore balances debtor autonomy against creditor protection by permitting the appointment of restructuring practitioners where necessary to safeguard negotiations or supervise aspects of the procedure.

This balance between debtor autonomy and external supervision again emerges as a major point of divergence between the German and Italian models. StaRUG generally limits judicial and practitioner involvement to circumstances where intervention becomes specifically necessary, thereby reinforcing the Directive’s market-oriented and facilitative logic. The Italian framework, by contrast, incorporates more substantial supervisory mechanisms through judicial oversight and the involvement of independent experts and court-appointed actors. These differences reflect broader divergences regarding institutional trust, creditor sophistication, and the perceived role of courts within restructuring governance.

2.5. Minimum Harmonisation and Its Structural Implications

The Directive’s reliance on minimum harmonisation constitutes perhaps its most important structural characteristic from a comparative perspective. Unlike fully harmonising instruments, Directive (EU) 2019/1023 establishes only a common framework of minimum requirements while leaving Member States substantial discretion regarding procedural design and institutional implementation.

This approach reflects the deeply embedded character of insolvency law within national legal systems. Insolvency regimes are closely connected to domestic procedural traditions, creditor cultures, financing structures, and judicial institutions. Full harmonisation would therefore have required far greater interference with national legal autonomy than was politically feasible at the European level. Minimum harmonisation instead represents a compromise between the objective of convergence and the preservation of national institutional diversity.

The consequence, however, is that formally similar restructuring mechanisms may operate very differently across jurisdictions. Access thresholds, judicial involvement, voting procedures, cram-down standards, and restructuring governance remain shaped by domestic legal traditions and institutional conditions. The Directive therefore promotes convergence primarily at the level of legislative objectives rather than institutional design.

This tension between harmonisation and divergence forms the central comparative issue examined in this paper. Germany and Italy both formally implement the Directive’s core restructuring principles, including early intervention, class-based voting, and preventive restructuring mechanisms. Nevertheless, the resulting frameworks differ substantially in terms of procedural structure, institutional allocation of authority, and the practical role of courts within the restructuring process.

The comparison consequently illustrates a broader phenomenon within European integration: harmonisation at the normative level does not necessarily produce convergence at the institutional level. Instead, European legal instruments frequently interact with pre-existing national traditions in ways that generate hybrid outcomes reflecting both supranational objectives and domestic legal culture. Preventive restructuring under Directive (EU) 2019/1023 provides a particularly revealing example of this dynamic because the effectiveness of restructuring frameworks depends not only on formal legal rules, but equally on the institutional environments within which those rules operate.

3. The German Implementation: StaRUG

3.1. Legislative Context and Objectives

Germany implemented Directive (EU) 2019/1023 through the Unternehmensstabilisierungs- und -restrukturierungsgesetz (StaRUG), which entered into force on 1 January 2021 as part of the broader Sanierungs- und Insolvenzrechtsfortentwicklungsgesetz (SanInsFoG). The introduction of StaRUG marked a significant structural development within German restructuring law because it created, for the first time, a comprehensive pre-insolvency restructuring framework operating independently from formal insolvency proceedings under the Insolvenzordnung (InsO).

Prior to the Directive, German restructuring practice was heavily centred on formal insolvency proceedings, particularly the Insolvenzplanverfahren introduced through the 1999 Insolvency Code reforms. Although the Insolvenzplan already allowed for flexible restructuring solutions and creditor coordination mechanisms, access remained tied to formal insolvency proceedings and therefore carried the reputational, procedural, and commercial consequences associated with insolvency filing. As a result, many restructurings occurred either too late or through purely contractual negotiations lacking effective mechanisms to address holdout behaviour and collective action problems.

StaRUG was designed to close this structural gap by creating a preventive restructuring framework available before the debtor reaches formal insolvency. In doing so, the legislation reflects a broader evolution within German insolvency policy away from a system focused primarily on orderly liquidation and toward one increasingly concerned with early restructuring and enterprise preservation. At the same time, however, the German legislature deliberately sought to preserve continuity with existing doctrinal structures and institutional principles of German insolvency law. Rather than creating a wholly autonomous restructuring regime, StaRUG incorporates many concepts already familiar within the German insolvency system, including class-based creditor voting, restructuring plans, and judicial confirmation mechanisms.

This continuity is important for understanding the German implementation more broadly. StaRUG does not represent a radical break with German insolvency culture, but rather an extension of pre-existing restructuring principles into the pre-insolvency sphere. The framework therefore combines innovation in timing and accessibility with a high degree of doctrinal integration and procedural precision. This contributes significantly to the legal certainty and predictability that characterise the German model.

At the same time, the German legislature intentionally avoided creating a highly court-driven restructuring process. One of the central objectives underlying StaRUG was to facilitate efficient restructuring negotiations while limiting unnecessary judicial involvement and preserving commercial flexibility wherever possible. The framework consequently reflects a comparatively market-oriented understanding of restructuring governance, in which courts operate primarily as procedural supervisors rather than as substantive managers of the restructuring process itself.

3.2. Access Threshold

Access to the StaRUG framework is conditioned upon the debtor facing imminent illiquidity (drohende Zahlungsunfähigkeit), a concept already established under German insolvency law through § 18 InsO. The debtor must not yet be insolvent within the meaning of §§ 17 or 19 InsO, since formal insolvency would instead trigger the obligation to commence ordinary insolvency proceedings. StaRUG therefore operates specifically within the intermediate space between financial stability and formal insolvency.

The concept of imminent illiquidity is generally understood as a situation in which the debtor is expected to become unable to meet payment obligations within a foreseeable future period unless corrective measures are implemented. German jurisprudence and practice traditionally approach this assessment through relatively detailed liquidity planning and financial forecasting. The threshold therefore reflects a comparatively precise and economically measurable conception of financial distress.

This precision distinguishes the German implementation from broader and more flexible approaches adopted in certain other jurisdictions. By relying upon an already established insolvency concept, the German legislature sought to maximise legal certainty and predictability for debtors, creditors, and restructuring professionals. The use of a familiar doctrinal threshold also reduces interpretive uncertainty and facilitates integration between StaRUG and the broader insolvency framework under the InsO.

From a structural perspective, however, the precision of the German threshold also performs an important filtering function. StaRUG is designed primarily for businesses that remain economically viable but face identifiable financial distress capable of being addressed through coordinated restructuring measures. The framework therefore attempts to exclude both debtors whose difficulties remain too remote to justify intervention and debtors whose insolvency has already progressed beyond realistic rescue prospects.

This calibrated approach reflects the broader economic logic underlying the Directive itself. Preventive restructuring mechanisms are efficient only where there remains sufficient going-concern value capable of preservation through timely intervention. Excessively early access risks unnecessary interference with ordinary commercial risk allocation, while excessively late access undermines the effectiveness of restructuring altogether. The German model attempts to navigate this tension through relatively rigorous financial thresholds combined with extensive restructuring flexibility once access has been granted.

At the same time, the reliance upon sophisticated financial forecasting may create practical accessibility concerns. Determining imminent illiquidity frequently requires extensive liquidity analysis, valuation exercises, and professional restructuring advice. Particularly for small and medium-sized enterprises, the technical demands associated with satisfying the access threshold may generate substantial costs even before formal restructuring negotiations begin. The German framework therefore privileges legal certainty and economic precision, but potentially at the expense of broader accessibility.

3.3. The Restructuring Plan Mechanism

The central instrument within the StaRUG framework is the Restrukturierungsplan, which functions as the procedural mechanism through which financial liabilities may be restructured collectively outside formal insolvency proceedings. Structurally, the plan closely resembles the Insolvenzplan under the InsO, though it operates within the preventive restructuring context and remains limited primarily to financial restructuring measures rather than comprehensive operational reorganisation.

The restructuring plan is based upon class formation and majority creditor voting. Creditors affected by the restructuring are grouped into classes according to sufficiently homogeneous legal and economic interests. Within each class, approval requires a qualified majority of 75% of voting rights. Once the necessary majorities have been achieved, dissenting creditors within the approving class become bound by the plan. Under certain conditions, dissenting classes may additionally be subjected to cross-class cram-down through judicial confirmation.

This voting architecture directly addresses the collective action problems that preventive restructuring frameworks are designed to overcome. In the absence of majority voting mechanisms, restructuring negotiations involving numerous financial creditors would remain highly vulnerable to holdout behaviour and strategic non-cooperation. StaRUG therefore transforms restructuring from a purely contractual process dependent upon unanimity into a collective legal mechanism capable of imposing economically efficient outcomes upon dissenting minorities.

The German framework places particular emphasis on procedural rationality and creditor predictability. Class formation follows relatively formalised principles designed to ensure that creditors with materially different interests are not grouped together improperly. Judicial review of class composition consequently plays an important role in preserving procedural fairness and protecting minority creditors against discriminatory restructuring outcomes.

At the same time, however, the German model remains fundamentally creditor-oriented in its overall structure. Unlike more debtor-protective systems, StaRUG does not seek to subordinate creditor interests to broader social or distributive objectives. Instead, the framework is primarily designed to facilitate economically efficient restructuring outcomes by enabling creditors collectively to maximise recoverable value through coordinated action.

This orientation becomes particularly visible in the operation of the cross-class cram-down mechanism. Judicial confirmation over dissenting classes requires compliance with safeguards designed to protect minority creditors, including the principle that dissenting creditors must not be placed in a worse position than they would occupy absent the restructuring plan. The framework therefore attempts to balance restructuring efficiency with procedural legitimacy and creditor protection.

Importantly, the Restrukturierungsplan also reflects the broader German preference for technically sophisticated and highly structured restructuring procedures. The preparation of the plan frequently requires extensive financial modelling, valuation analysis, creditor classification, and legal documentation. While this contributes significantly to predictability and legal certainty, it simultaneously increases procedural complexity and resource intensity.

3.4. Judicial Involvement and Procedural Modularity

One of the most distinctive features of StaRUG is its modular approach to judicial involvement. Unlike traditional insolvency proceedings, which are characterised by continuous court supervision, the German preventive restructuring framework allows debtors to involve the restructuring court only where judicial intervention becomes necessary for specific procedural purposes.

The Restrukturierungsgericht may therefore become involved selectively in matters such as: confirmation of the restructuring plan, imposition of stabilisation measures, resolution of disputes concerning voting rights or class formation, or confirmation of cross-class cram-down. Outside these areas, negotiations may proceed largely on the basis of private coordination between the debtor and affected creditors.

This selective structure reflects a deliberate legislative policy choice. The German implementation proceeds from the assumption that restructuring efficiency is generally enhanced where commercially sophisticated parties retain primary control over negotiations and restructuring design. Courts therefore function primarily as guarantors of procedural legality and fairness rather than as substantive participants in the restructuring process itself.

The modular design generates several practical advantages. First, it reduces procedural costs by limiting unnecessary judicial involvement. Second, it preserves confidentiality during restructuring negotiations, thereby minimising reputational damage and reducing the risk that public disclosure of financial distress will destabilise the debtor’s commercial relationships. Third, it enables restructuring proceedings to move comparatively quickly, particularly where creditor coordination has already largely been achieved through private negotiations.

The limited role of the court also contributes significantly to restructuring predictability. Because judicial intervention is comparatively narrow and procedurally bounded, parties can negotiate against a relatively stable legal framework without anticipating extensive substantive judicial review of commercial restructuring decisions. In practice, this strengthens the credibility of cram-down mechanisms and encourages consensual negotiation by increasing confidence regarding the likely outcome of judicial confirmation proceedings.

At the same time, however, the reduced intensity of judicial involvement presupposes a relatively sophisticated restructuring environment. The framework assumes the presence of: experienced restructuring professionals, financially sophisticated creditors, reliable financial information, and comparatively high institutional trust between market participants.

These conditions may not exist uniformly across all categories of debtors or across all sectors of the economy. The effectiveness of the German model therefore depends significantly upon the broader institutional environment within which it operates.

3.5. Assessment

The German implementation of Directive (EU) 2019/1023 possesses several important structural strengths. Most notably, StaRUG provides a highly coherent and internally integrated restructuring framework capable of addressing complex financial restructurings efficiently and predictably. Its emphasis on legal certainty, procedural precision, and creditor coordination reflects the broader strengths traditionally associated with German commercial and insolvency law.

The framework is particularly effective in situations involving sophisticated financial creditors and relatively concentrated debt structures. The availability of majority voting and cross-class cram-down significantly reduces the risk of holdout behaviour, while the modular court structure minimises procedural delay and preserves commercial flexibility. The close integration between StaRUG and existing insolvency concepts under the InsO additionally enhances doctrinal coherence and reduces interpretive fragmentation within German restructuring law more broadly.

Furthermore, the framework aligns closely with the Directive’s underlying objective of facilitating early intervention before financial distress becomes irreversible. By allowing debtors to restructure liabilities outside formal insolvency proceedings, StaRUG reduces the stigma historically associated with insolvency filing and creates incentives for earlier restructuring engagement.

Nevertheless, the German model also exhibits important limitations. Its principal weakness lies in its complexity and technical intensity. Effective use of the framework frequently requires extensive legal, financial, and restructuring expertise, particularly in relation to: liquidity forecasting, creditor classification, and restructuring plan preparation. Consequently, the practical accessibility of StaRUG may remain limited for smaller businesses lacking the financial resources necessary to support sophisticated restructuring processes.

The framework also reflects a relatively market-centred conception of restructuring governance that may not fully account for asymmetries in bargaining power between debtors and institutional financial creditors. Although judicial safeguards exist, the comparatively restrained role of the court means that much of the restructuring process remains dependent upon private negotiation dynamics and creditor sophistication.

Finally, the effectiveness of the German model depends heavily upon institutional conditions that cannot necessarily be replicated through legislation alone. The relative efficiency of German commercial courts, the technical sophistication of restructuring professionals, and the predictability of German commercial adjudication all contribute materially to the practical success of StaRUG. The framework’s effectiveness therefore derives not only from its formal legal design, but equally from the institutional environment within which it operates.

4. The Italian Implementation: The CCII

4.1. Legislative Context and Reform Objectives

Italy implemented Directive (EU) 2019/1023 through amendments to the Codice della Crisi d’Impresa e dell’Insolvenza (CCII), which entered fully into force on 15 July 2022 and replaced the former Legge Fallimentare of 1942. The reform constitutes one of the most extensive restructurings of Italian insolvency law in recent decades and reflects a broader attempt to transform the Italian system from a predominantly liquidation-oriented framework into one increasingly centred on early intervention and business continuity.

Prior to the CCII reforms, Italian insolvency law was widely criticised for excessive procedural complexity, prolonged judicial proceedings, and limited effectiveness in facilitating timely business rescue. Although restructuring instruments such as the concordato preventivo formally existed, they were often activated only after severe financial deterioration had already occurred and remained characterised by substantial court supervision and procedural rigidity. As a result, restructuring frequently functioned less as a mechanism for preserving economically viable businesses and more as a controlled form of liquidation management.

The implementation of the Directive therefore occurred within a legal system already marked by longstanding structural concerns regarding judicial efficiency, procedural duration, and institutional fragmentation. The Italian legislature consequently pursued not only formal transposition of the Directive’s preventive restructuring requirements, but also a broader systemic reform aimed at encouraging earlier intervention and reducing the historical stigma associated with insolvency proceedings.

This shift is visible both substantively and symbolically. Most notably, the CCII abandoned the traditional term fallimento in favour of liquidazione giudiziale, reflecting an attempt to reduce the punitive and socially discrediting connotations historically associated with business failure in Italian legal culture. The reform additionally introduced a series of preventive and negotiated restructuring instruments designed to intervene before formal insolvency becomes unavoidable.

At the same time, however, the Italian implementation did not fundamentally abandon the institutional logic that historically characterised Italian insolvency law. Unlike the comparatively market-oriented German framework, the CCII continues to assign courts a central role within restructuring governance. Judicial supervision remains deeply embedded throughout the restructuring process, particularly in relation to creditor protection, plan confirmation, procedural oversight, and the assessment of restructuring feasibility.

This continuity is crucial for understanding the Italian model. The CCII undoubtedly reflects a genuine movement toward preventive restructuring and earlier intervention, yet it does so within an institutional environment that continues to place significant emphasis on judicial control and substantive oversight. The resulting framework therefore combines elements of modern preventive restructuring with procedural characteristics rooted in the historical concordato tradition and broader features of Italian civil procedural culture.

Consequently, while both Germany and Italy formally implement the same Directive objectives, the Italian transposition reflects a markedly different conception of restructuring governance. The German framework prioritises procedural efficiency, party autonomy, and limited judicial intervention, whereas the Italian system continues to approach restructuring through a more protective and institutionally supervised model designed to balance restructuring flexibility against judicially enforced creditor safeguards.

4.2. Access Threshold

A central feature of the CCII is the distinction between crisi and insolvenza. The Italian framework differentiates between a state of economic and financial imbalance likely to result in insolvency and actual insolvency properly understood as the debtor’s inability to meet obligations regularly as they fall due. This distinction reflects the preventive logic underlying Directive (EU) 2019/1023 and constitutes the conceptual foundation upon which the Italian restructuring system is constructed.

The concept of crisi functions as the primary threshold for access to preventive restructuring mechanisms under the CCII. Unlike traditional insolvency proceedings, which intervene only once financial collapse has already materialised, the Italian framework permits debtors to seek restructuring solutions at an earlier stage of financial deterioration. The objective is to facilitate timely intervention before going-concern value is irreversibly destroyed and before ordinary commercial relationships become destabilised through enforcement activity and liquidity collapse.

Compared with the German concept of drohende Zahlungsunfähigkeit, however, the Italian threshold remains broader and more flexible. Rather than relying upon a comparatively precise liquidity-based criterion, the CCII adopts a more open-ended conception of economic and financial imbalance. This approach reflects the Italian legislature’s preference for maintaining flexibility in assessing financial distress, particularly given the diversity of debt structures and business conditions that may precede insolvency.

The Italian framework nevertheless attempts to balance flexibility against the risk of opportunistic access by non-viable debtors. Preventive restructuring mechanisms under the CCII are generally conditioned upon the existence of at least a realistic prospect of business recovery. This requirement becomes particularly visible within the composizione negoziata della crisi, where debtors must demonstrate through a preliminary assessment that the business retains the capacity for viable restructuring.

The emphasis on viability reflects the same underlying economic logic present within the Directive itself. Preventive restructuring mechanisms are intended to preserve economically productive businesses rather than to postpone inevitable liquidation. Italian law therefore seeks to distinguish between temporary financial distress capable of rehabilitation and irreversible economic failure requiring market exit.

At the same time, however, the relative flexibility of the Italian threshold generates a degree of legal uncertainty absent from the German model. Because the concept of crisi depends upon broader evaluative assessments of financial imbalance and restructuring feasibility, significant interpretive discretion remains with courts and restructuring professionals. This may complicate predictability both for debtors seeking access to restructuring tools and for creditors attempting to assess restructuring risk.

The Italian approach therefore reflects a different institutional balance from that adopted under StaRUG. Whereas the German framework privileges legal precision and technical predictability, the Italian model places greater emphasis on flexibility and judicial evaluation. The consequence is a restructuring system that may be more adaptable to diverse forms of financial distress, but simultaneously more dependent upon institutional effectiveness and judicial consistency.

4.3. The Restructuring Plan Mechanism

The central restructuring mechanism introduced through the Italian implementation of Directive (EU) 2019/1023 is the Piano di Ristrutturazione Omologato (PRO), incorporated into the CCII through Article 64-bis by Legislative Decree No. 83/2022. The PRO represents the instrument most directly aligned with the Directive’s preventive restructuring architecture because it combines class-based creditor coordination with the possibility of judicially confirmed cross-class cram-down.

Structurally, the PRO constitutes a significant evolution within Italian restructuring law. Historically, many Italian pre-insolvency restructuring mechanisms relied heavily on consensual creditor agreement and therefore remained vulnerable to holdout behaviour and coordination failure. The PRO departs from this logic by introducing a collective restructuring framework capable of binding dissenting creditors through majority voting and judicial confirmation. In doing so, it reflects the Directive’s broader objective of transforming restructuring from a purely contractual process into a coordinated legal mechanism designed to preserve economically viable businesses.

Under the procedure, creditors are divided into homogeneous classes according to their legal positions and economic interests. The restructuring plan must then obtain approval from the required creditor majorities within the affected classes. Where one or more classes oppose the restructuring, the court may nevertheless confirm the plan through cross-class cram-down, provided that the statutory safeguards protecting dissenting creditors are satisfied. The mechanism therefore directly addresses the collective action problems that frequently undermine out-of-court restructuring negotiations, particularly in cases involving fragmented creditor structures or divergent creditor incentives.

The Italian framework additionally incorporates the absolute priority rule (APR) as a central safeguard governing distributive fairness among creditor classes. Pursuant to Article 64-bis(4) CCII, junior classes may not receive or retain value where dissenting senior classes are not satisfied in full, absent agreement to derogation. The APR consequently operates as a structural limitation on restructuring discretion designed to preserve creditor hierarchy and prevent opportunistic redistributive outcomes.

As under the German StaRUG framework, the debtor generally remains in possession throughout the restructuring process. At the same time, however, the Italian model subjects the restructuring plan to more extensive judicial scrutiny during the confirmation phase. Judicial confirmation under the CCII does not operate merely as formal certification of procedural compliance, but rather involves substantive review concerning the legality, feasibility, and fairness of the proposed restructuring. Courts may therefore evaluate issues such as class formation, creditor treatment, feasibility assessments, and compliance with statutory priority rules before confirming the plan.

The framework also requires the involvement of independent experts responsible for certifying the accuracy of the debtor’s financial information and the feasibility of the restructuring proposal. These attestations perform an important legitimising function within the Italian system by reducing informational asymmetries and strengthening creditor confidence in the restructuring process.

Compared with the German Restrukturierungsplan under StaRUG, the Italian PRO consequently reflects a more judicially mediated conception of creditor coordination. While both systems formally implement the Directive’s class-based restructuring and cram-down mechanisms, the German model prioritises procedural efficiency and limited court involvement, whereas the Italian framework places greater emphasis on judicial supervision and substantive procedural control. The difference illustrates how similar restructuring tools may operate differently depending upon the broader institutional assumptions underlying national restructuring law.

Alongside the PRO, the CCII additionally introduced negotiated restructuring instruments intended to facilitate consensual solutions at an earlier stage of financial distress, most notably the composizione negoziata della crisi. These procedures complement the formal restructuring architecture by providing more flexible and confidential mechanisms for restructuring negotiation prior to the commencement of fully court-confirmed restructuring proceedings.

4.4. Judicial Intervention and Composizione Negoziata della crisi

Judicial involvement remains one of the defining structural characteristics of the Italian restructuring framework under the CCII. Although the reform introduced preventive and negotiated restructuring instruments intended to encourage earlier intervention and reduce reliance upon formal insolvency proceedings, courts continue to occupy a central role throughout the restructuring process. This distinguishes the Italian model significantly from the comparatively modular and limited judicial involvement characterising the German StaRUG framework.

The clearest illustration of this institutional structure is the composizione negoziata della crisi, introduced primarily through Articles 12 and 13 CCII. The procedure functions as an extra-judicial restructuring instrument designed to facilitate negotiated solutions for debtors experiencing financial distress before formal insolvency proceedings become necessary. Unlike the PRO, which operates through structured creditor voting and judicial confirmation, the composizione negoziata is fundamentally based upon consensual negotiation and supervised coordination.

Access to the procedure is conditioned upon a preliminary viability assessment conducted through the digital platform of the relevant Camera di Commercio. The debtor must demonstrate that the business retains a realistic prospect of recovery through the so-called test pratico di ragionevole perseguibilità del risanamento. This requirement functions as an ex ante filter designed to prevent opportunistic use of restructuring procedures by economically non-viable businesses and to preserve creditor confidence in the restructuring framework.

Once admitted, the debtor remains in possession of the business but operates under the supervision and guidance of an independent expert appointed from a specialised register maintained by the Camera di Commercio. The expert’s role is not formally adjudicative, but rather facilitative: the objective is to encourage good-faith negotiations between the debtor and creditors while assisting the parties in identifying viable restructuring solutions.

The procedure is characterised by flexibility, voluntariness, and strict confidentiality. This confidentiality constitutes a particularly important practical advantage because public disclosure of financial distress may itself accelerate business deterioration through trade credit withdrawal, reputational damage, and contractual enforcement actions. The composizione negoziata therefore seeks to create a protected negotiation environment capable of stabilising the debtor’s commercial relationships during restructuring discussions.

At the same time, however, the procedure remains closely connected to judicial mechanisms. During negotiations, the debtor may request protective measures (misure protettive) against individual creditor enforcement as well as judicial authorisation for certain extraordinary transactions pursuant to Article 22 CCII. Even within this formally extra-judicial framework, courts therefore continue to exercise important supervisory and stabilising functions.

The composizione negoziata additionally serves as a gateway to several formal restructuring instruments under the CCII. Where negotiations succeed, the debtor may transition toward debt restructuring agreements (accordi di ristrutturazione dei debiti), certified recovery plans (piani attestati di risanamento), or the simplified concordato preventivo. Where negotiations fail, the debtor may instead proceed toward formal insolvency proceedings. The procedure therefore occupies an intermediate institutional position between purely contractual negotiation and fully coercive restructuring coordination.

Its principal structural limitation lies in its dependence upon creditor cooperation. Because the procedure lacks a comprehensive cram-down mechanism, dissenting creditors retain the ability to obstruct restructuring outcomes even where the restructuring would maximise aggregate value for the creditor body as a whole. The framework therefore remains vulnerable to holdout behaviour and coordination failure, particularly in cases involving fragmented or strategically motivated creditor groups.

More broadly, the Italian restructuring system continues to assign courts a substantially more intensive role than that adopted under StaRUG. Judicial authorities remain deeply involved in: restructuring confirmation, protective measures, feasibility review, creditor protection, and procedural supervision. This institutional design reflects the broader Italian preference for judicial oversight as a mechanism for ensuring restructuring legitimacy and protecting creditors against opportunistic debtor conduct.

At the same time, however, extensive judicial involvement may also generate procedural delay, increased costs, and reduced predictability. Particularly within a judicial system already affected by structural backlog and institutional undercapacity, prolonged review procedures risk undermining the Directive’s objective of rapid and effective preventive intervention. The Italian framework consequently illustrates the broader tension between restructuring flexibility and procedural supervision that lies at the centre of contemporary preventive restructuring governance.

3.5. Assessment

The Italian implementation of Directive (EU) 2019/1023 represents a substantial modernisation of the country’s restructuring framework and reflects a clear transition toward a more preventive and rescue-oriented approach to financial distress. Through the introduction of instruments such as the PRO and the composizione negoziata della crisi, the CCII moves beyond the traditionally liquidation-oriented structure of Italian insolvency law and creates mechanisms capable of intervening before formal insolvency has fully materialised.

One of the principal strengths of the Italian model lies in the breadth and flexibility of its restructuring architecture. The framework provides debtors with multiple restructuring pathways capable of addressing different forms and stages of financial distress. In particular, the coexistence of negotiated restructuring instruments alongside more formal court-confirmed restructuring procedures allows the system to accommodate varying levels of creditor cooperation and procedural complexity. This multi-layered structure reflects a genuine attempt to operationalise the Directive’s objective of encouraging early restructuring intervention and preserving economically viable businesses.

The Italian framework also places considerable emphasis on creditor protection and procedural legitimacy. Judicial supervision, expert attestations, and substantive confirmation review are intended to reduce informational asymmetries and ensure that restructuring outcomes comply with statutory fairness requirements. Particularly in complex restructurings involving heterogeneous creditor groups, these mechanisms may strengthen confidence in the integrity of the restructuring process and reduce the risk of opportunistic debtor behaviour.

At the same time, however, the Italian model remains heavily dependent upon institutional effectiveness and judicial capacity. The extensive role assigned to courts throughout the restructuring process increases procedural complexity and may significantly prolong restructuring timelines. Because preventive restructuring is fundamentally dependent upon speed and early intervention, procedural delay risks undermining the preservation of going-concern value that the Directive seeks to promote.

The framework additionally remains comparatively resource-intensive. The involvement of courts, independent experts, attestations, and multiple procedural safeguards increases both the cost and administrative burden associated with restructuring proceedings. While these mechanisms enhance procedural oversight, they may simultaneously reduce practical accessibility, particularly for smaller businesses lacking the financial resources necessary to sustain prolonged restructuring negotiations.

Compared with the German StaRUG framework, the Italian implementation consequently reflects a more protective and judicially supervised conception of restructuring governance. Whereas the German model prioritises procedural efficiency, predictability, and limited court intervention, the Italian system places greater emphasis on institutional supervision and substantive procedural control. Neither approach is inherently incompatible with the Directive’s objectives. The comparison nevertheless illustrates how minimum harmonisation permits significantly different institutional balances between restructuring flexibility, creditor protection, and judicial oversight.

Ultimately, the Italian experience demonstrates that the effectiveness of preventive restructuring frameworks depends not only upon the formal availability of restructuring tools, but equally upon the institutional environment within which those tools operate. The CCII successfully incorporates the preventive logic of Directive (EU) 2019/1023 and represents a substantial evolution of Italian restructuring law. Its long-term effectiveness, however, remains closely linked to broader questions of judicial efficiency, procedural administration, and institutional capacity.

5. Comparative Assessment: Creditor Dynamics and the Role of Courts

The comparison between the German StaRUG framework and the Italian CCII illustrates with particular clarity the structural consequences of minimum harmonisation within European insolvency law. Although both jurisdictions formally implement the same Directive objectives, namely early intervention, preservation of going-concern value, and coordinated creditor restructuring, the resulting frameworks differ substantially in terms of institutional design, procedural structure, and the allocation of authority between courts, creditors, and debtors.

At the normative level, both systems reflect the Directive’s broader transition away from liquidation-oriented insolvency models toward preventive restructuring mechanisms designed to preserve economically viable businesses before financial distress becomes irreversible. Both jurisdictions introduce restructuring tools based upon class formation, majority voting, cross-class cram-down, and debtor-in-possession governance. In both systems, the restructuring framework seeks to address collective action problems among creditors while simultaneously encouraging earlier intervention and reducing the destructive consequences traditionally associated with formal insolvency proceedings.

The similarities between the two frameworks, however, exist primarily at the level of legislative objectives and formal restructuring mechanisms. At the institutional level, the German and Italian implementations embody fundamentally different conceptions of restructuring governance and creditor coordination.

The German model under StaRUG is characterised by procedural precision, technical formalisation, and comparatively limited judicial intervention. The framework operates on the assumption that restructuring efficiency is best achieved where commercially sophisticated parties retain primary control over negotiations within a stable and predictable legal structure. Courts therefore function principally as procedural supervisors responsible for safeguarding legality and creditor fairness without displacing commercial decision-making. The restructuring process remains heavily oriented toward private coordination, supported by targeted judicial mechanisms only where necessary to stabilise negotiations or confirm restructuring outcomes.

The Italian framework under the CCII reflects a markedly different institutional logic. Although the Italian reforms incorporate the Directive’s preventive restructuring architecture, they continue to assign courts and supervised actors a substantially more central role within the restructuring process. Judicial authorities remain deeply involved in: restructuring confirmation, feasibility review, creditor protection, procedural supervision, and stabilisation measures.

Similarly, the composizione negoziata della crisi relies heavily upon independent experts and institutionally supervised negotiation mechanisms designed to facilitate creditor coordination under external oversight. The Italian system therefore approaches restructuring not primarily as a market-driven coordination exercise, but rather as a procedurally supervised process intended to balance restructuring flexibility against judicially enforced legitimacy and creditor protection.

This divergence becomes particularly visible in relation to the role of judicial intervention. Under StaRUG, judicial involvement remains modular and selective. The Restrukturierungsgericht intervenes only where specific procedural functions require judicial authority, allowing negotiations to proceed largely through private coordination. This structure reduces procedural delay, preserves confidentiality, and increases predictability for sophisticated market participants. The effectiveness of the German model consequently depends heavily upon institutional trust, creditor sophistication, and the capacity of parties to negotiate restructuring solutions efficiently without extensive judicial management.

By contrast, the Italian framework adopts a substantially more interventionist conception of restructuring supervision. Courts exercise broader powers of substantive review during restructuring confirmation, while independent experts and judicially supervised procedures occupy an important role throughout both negotiated and formal restructuring mechanisms. This institutional structure reflects the historical influence of the concordato tradition and a broader preference within Italian insolvency law for judicial oversight as a safeguard against opportunistic behaviour and procedural unfairness.

The comparison additionally reveals differing approaches to the balance between flexibility and predictability. Germany privileges legal certainty through comparatively precise access thresholds, formalised restructuring procedures, and narrowly bounded judicial review. The Italian framework instead prioritises adaptability and institutional supervision through broader access concepts such as crisi and more flexible restructuring mechanisms capable of accommodating diverse forms of financial distress. As a result, the German system may offer greater predictability and procedural efficiency, whereas the Italian model may provide greater flexibility but at the cost of increased institutional dependence and procedural complexity.

At the same time, neither framework can be understood solely through reference to its formal legal design. The practical effectiveness of preventive restructuring depends equally upon the broader institutional environment within which the restructuring mechanisms operate. The German framework benefits from comparatively efficient commercial courts, highly developed restructuring practice, and sophisticated financial creditors capable of coordinating negotiations within technically complex restructuring procedures. The Italian framework, by contrast, operates within a judicial environment historically affected by procedural backlog and institutional fragmentation, increasing the practical significance of judicial delay and procedural administration.

The comparison therefore demonstrates a broader limitation inherent within minimum harmonisation itself. Directive (EU) 2019/1023 successfully establishes common restructuring objectives and introduces a shared set of preventive restructuring tools across Member States. It does not, however, eliminate the influence of national procedural culture, institutional capacity, or domestic legal tradition. Consequently, formally similar restructuring mechanisms may generate substantially different practical outcomes depending upon the institutional context within which they are implemented.

Ultimately, the German and Italian transpositions illustrate two distinct models of preventive restructuring governance within the broader framework established by Directive (EU) 2019/1023. Germany adopts a facilitative and market-oriented restructuring architecture designed to maximise efficiency, predictability, and party autonomy through limited judicial involvement. Italy, by contrast, retains a more protective and judicially mediated model that places greater emphasis on institutional supervision and procedural control. The comparison demonstrates that European harmonisation in insolvency law remains necessarily incomplete: while convergence may be achieved at the level of legislative objectives, substantial divergence persists at the institutional and procedural level.

6. Conclusion

Directive (EU) 2019/1023 represents a significant development in European insolvency and restructuring law and reflects a broader transformation in the objectives of insolvency regulation within the European Union. By requiring Member States to establish preventive restructuring frameworks accessible at the stage of a likelihood of insolvency, the Directive shifts the focus of restructuring law away from the management of business failure and toward the preservation of economically viable enterprises through early intervention and coordinated creditor restructuring.

At the same time, however, the Directive is founded upon a model of minimum harmonisation that deliberately preserves substantial national discretion regarding procedural design, judicial involvement, and institutional implementation. The comparative analysis of the German and Italian transpositions demonstrates the structural consequences of this legislative choice with particular clarity. Although both jurisdictions formally implement the same preventive restructuring objectives and adopt similar mechanisms such as debtor-in-possession governance, class-based voting, and cross-class cram-down, the resulting frameworks differ significantly in their institutional architecture and practical operation.

The German implementation through StaRUG reflects a comparatively market-oriented and facilitative conception of restructuring governance. The framework prioritises legal certainty, procedural efficiency, and creditor coordination while limiting judicial intervention to specific supervisory functions. Its highly structured design enables sophisticated financial restructurings to proceed efficiently and predictably, particularly where creditor coordination can largely be achieved through private negotiation. At the same time, the technical complexity and resource intensity of the German model may reduce practical accessibility for smaller businesses lacking the financial and professional resources necessary to utilise the framework effectively.

The Italian implementation through the CCII reflects a different institutional balance. Although the reform introduces substantial innovations aimed at encouraging earlier intervention and business rescue, the Italian framework continues to assign courts and supervised actors a central role within restructuring governance. Judicial review, expert supervision, and procedurally intensive restructuring mechanisms remain deeply embedded throughout the restructuring process. This structure may strengthen procedural legitimacy and creditor protection, particularly in situations characterised by informational asymmetries or fragmented creditor structures. At the same time, however, the effectiveness of the Italian model remains closely dependent upon judicial efficiency and institutional capacity, since extensive procedural supervision may itself undermine the speed and predictability necessary for successful preventive restructuring.

More broadly, the comparison illustrates that the effectiveness of preventive restructuring frameworks depends not only upon the formal legal rules introduced through harmonisation measures, but equally upon the institutional environments within which those rules operate. Judicial capacity, creditor sophistication, restructuring culture, and procedural efficiency all shape the practical functioning of preventive restructuring mechanisms in ways that cannot be harmonised solely through legislative approximation.

The German and Italian experiences therefore reveal both the possibilities and the limitations of European harmonisation in insolvency law. Directive (EU) 2019/1023 successfully establishes a common normative framework centred on early intervention, going-concern preservation, and coordinated restructuring. Nevertheless, the practical operation of these mechanisms continues to reflect deeply rooted national legal traditions and institutional structures. The Directive consequently produces convergence at the level of legislative objectives while simultaneously permitting substantial divergence at the institutional and procedural level.

This divergence does not necessarily undermine the legitimacy of the Directive itself. Insolvency law remains closely connected to national procedural systems, judicial organisation, creditor cultures, and domestic economic structures. A fully uniform restructuring regime would therefore neither be politically feasible nor institutionally appropriate across all Member States. At the same time, however, the comparative analysis suggests that minimum harmonisation alone may be insufficient where substantial institutional asymmetries persist between national legal systems.

Future European reforms could therefore focus less on expanding substantive harmonisation and more on strengthening the institutional conditions necessary for effective preventive restructuring. In particular, greater emphasis could be placed on improving judicial specialisation in restructuring matters and increasing procedural efficiency. Furthermore promoting restructuring expertise among judges and practitioners, and encouraging greater convergence in restructuring standards and best practices across Member States could be stressed to a more substantial degree.

Such measures would not eliminate national diversity, nor would they require the creation of a fully uniform European insolvency regime. They could, however, reduce the practical disparities that currently exist between formally similar restructuring frameworks and strengthen the effectiveness of preventive restructuring within the internal market more broadly.

Preventive restructuring under Directive (EU) 2019/1023 thus illustrates a broader characteristic of European integration more generally. Harmonisation within the European Union frequently operates not through the replacement of domestic legal systems with uniform supranational structures, but rather through the interaction between common European objectives and diverse national institutional environments. The comparative analysis of Germany and Italy demonstrates that this interaction may generate significantly different restructuring models even where Member States formally implement the same legislative framework.




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