Lateral thinking by scholars and case law following the entry into force of the Code of Business Crisis and Insolvency has now clarified that interim measures are not a marginal or residual feature of the system, but constitute an essential tool in the operational management of crisis and pre‑crisis situations.
While the legislative text highlights their atypical, flexible, and instrumental nature, it is in practical application that their concrete function fully emerges. Trial court case law shows that interim measures are increasingly used to affect specific and operational aspects of business activity, with a functional perspective aimed at protecting business continuity or, in any event, ensuring the successful outcome of the restructuring effort and the best satisfaction of the general body of creditors.
In particular, in companies that operate on an ongoing basis with the public administration and for which certain conditions are indispensable for business continuity, the role of interim measures takes on special significance, as they can intervene in relations with the public administration. This is evidenced by the approach in case law regarding interim measures aimed at obtaining the issuance of the Single Social Security Compliance Certificate (DURC) and the Single Tax Compliance Certificate (DURF) from the competent authorities (INPS and the Italian Revenue Agency, respectively).
This is a context in which the crisis manifests itself in an immediately operational manner, affecting the debtor company’s ability to generate revenues and to obtain the financial flows necessary for business continuity.
The interim order as the outcome of a three-actor procedure: counsel, expert, and judge
The effectiveness of interim measures does not depend solely on the statutory framework or the judge’s sensitivity, but is the result of a complex, technically guided procedure, in which the various professionals involved in managing the crisis play a central role.
First and foremost, the company’s counsel must frame the application for interim relief in a manner that is formally and technically correct as well as strategically effective, identifying the most suitable measure and demonstrating in a precise way the existence of the fumus boni iuris and the periculum in mora.
Alongside this function, within the negotiated composition a decisive role is played by the expert, who is called upon to verify the plausibility of the restructuring path and the proportionality of the interim measure with respect to the creditors’ interests, issuing an opinion that in practice often carries decisive weight in shaping the judge’s conviction.
Similarly, within the tools for regulating the crisis, this technical filtering and safeguarding function is performed by the judicial commissioner who, although operating in a different procedural context and with significantly more stringent powers and duties, is called upon to carry out an assessment substantially overlapping that of the expert, verifying the consistency of the interim measure with the plan and its functionality to the best satisfaction of the creditors.
The interim order thus emerges as the outcome of a “triangular” procedure, in which the application constructed by counsel, the expert’s (or judicial commissioner’s) technical assessment, and judicial scrutiny are integrated in a single decision-making process aimed at verifying whether the measure sought is in fact functional to business continuity and to the successful outcome of the crisis-regulation path.
It is within this framework that the interim measure under analysis de qua is situated; a measure that, in practice, represents one of the most interesting and most evolved applications of interim relief. It is configured as an instrument for managing the crisis, aimed at ensuring the pursuit of the restructuring plan and an orderly, functional management of the estate in the interests of the general body of creditors.
DURC and DURF as conditions for the company’s operability
In sectors characterized by a structural interface with the public administration—public procurement, contracted services, concessions, supply chains in which social security and tax compliance is a precondition for contract award and payment—DURC and DURF do not serve as mere “administrative” attestations, but rather constitute indispensable conditions for the company’s operability.
When a company decides to access one of the crisis-regulation tools provided by the Code of Business Crisis and Insolvency and, in particular, opts for the negotiated composition under Article 12 CCII, whose ratio is expressly geared toward safeguarding business continuity, the question arises whether it is possible to obtain these certificates even in the absence of the requirements ordinarily demanded by the sectoral regulations[1].
Failure to issue these certificates has significant effects in terms of:
- access to the market (participation in and award of tenders);
- collection of amounts already accrued;
- maintenance of existing contractual relationships (suspensions/terminations and procedural blocks);
- reputational and sanction-related consequences, further increasing the cost of the crisis.
It is therefore evident that failure to issue these certificates could have a clearly negative impact on a company in crisis, further aggravating its economic and financial situation, completely undermining its ability to meet its present and future obligations and, consequently, to pursue the restructuring plan.
It is clear, however, that non-issuance of the DURC/DURF is often physiological in situations of financial stress. Indeed, for a company that decides to enter a negotiated composition and/or to access a crisis-regulation tool, it is exceedingly difficult to meet all of the above requirements given its situation. And it is equally obvious that the competent authorities, not finding the requirements for issuance to be satisfied, cannot proceed to issue them.
Another operational juncture concerns the scope of the crisis judge’s powers of interim relief: the court cannot replace the administration, nor can it, by way of interim relief, issue a “pure” facere order directing the release of the DURC/DURF. This limit is reaffirmed very clearly in case law, which allows protection only in a procedurally compatible form: the (summary and instrumental) determination of the existence of the conditions for issuance, thereby enabling the competent authority to proceed accordingly.
In other words, practice has progressively constructed a formulation of the interim application that does not ask the judge directly to issue the administrative act, but rather to determine—adversarially and with summary cognition—that, in the context of the restructuring procedure, the conditions exist for issuance of the certificate. The result is a form of interim protection that operates as a functional fictio iuris to preserve operability without turning the judge into an administrative authority.
Relevant case law
This approach emerges paradigmatically in the order of the Court of Milan of 24 January 2025[1], where the principal claim (order to issue) is deemed inadmissible, while the alternative claim seeking a determination of the conditions for the competent INPS office to issue the DURC is granted. In practice, this ruling has become a “template” decision, because it clarifies:
- the admissible form of the application;
- the “evolutionary” reading of social security compliance in a crisis. The core of the reasoning lies in the call to adapt the practices of social security institutions to legislative changes that have attenuated the automatic equation between crisis/insolvency and the impossibility of obtaining the DURC. The judge stressed the need to move beyond interpretations rigidly premised on full‑payment requirements that risk thwarting the continuation of activity, highlighting the discipline’s pro‑continuity ratio;
- the functional framing of fumus and periculum. Fumus is anchored to the viability of the restructuring (plan under development and the expert’s opinion), while periculum is described in concrete terms: without a DURC the company cannot obtain new contracts, cannot collect receivables arising from its operations and therefore, in practice, cannot continue its operating cycle. But the element that often proves decisive in practice is that the interim measure, if granted, does not cause undue prejudice to the Authority. In the case at hand, the plan envisaged full payment of the social security debt, albeit in instalments, which allowed the judge to conclude that the measure was functional to the negotiations and not unduly burdensome for the authority.
In the subsequent order of the Court of Genoa of 19 September 2025[2], in the passage devoted to the DURC, the court emphasized an aspect that is often decisive in practice, namely that social security compliance was functional not only to the acquisition of new contracts, but also to the collection of receivables already accrued from the public administration; the decision also records the absence of opposition by the Authority, and reiterates that there is no appreciable prejudice where the plan provides for full payment of the debt, thus echoing the considerations set out by the Court of Milan in the order of 24 January 2025.
In the same vein is the order of the Court of Como of 7 November 2025[3]. In particular, the court expressly refers to the reasoning developed by the Court of Milan in the order of 24 January 2025 and by the Court of Genoa in the order of 19 September 2025, which had held that the rules on social security compliance must be read in light of the objectives of the new codified framework, avoiding interpretations that would make it impossible to continue business activity precisely in the cases in which the legislature intends to facilitate restructuring.
Starting from these premises, the court found that the application for interim relief had a sufficient degree of merit in light of the plausibility of the restructuring path proposed by the applicant company. In particular, based on the documentation filed and the opinion of the expert appointed in the negotiated composition, the court found that the draft plan did not appear manifestly implausible and showed a reasonable prospect of success, albeit within the limits of the summary cognition typical of the interim stage. This assessment was further reinforced by the fact that the plan still provided for full payment of social security debts, albeit with arrangements and timelines compatible with the crisis situation, thereby allowing the court to rule out that the interim measure could cause excessive prejudice to the social security authority. In light of these elements, the court considered the requirement of fumus boni iuris to be met, recognizing that, in the context of the negotiated composition, the conditions existed to determine the possibility of the DURC being issued by INPS.
As to the requirement of periculum in mora, the Court of Como noted that failure to issue the social security compliance certificate would directly affect the company’s ability to continue operating in the realm of public contracts, compromising not only the possibility of participating in ongoing tender procedures, but also that of collecting the amounts accrued under contracts already performed. In particular, the court gave weight to the considerations set out by the expert in the opinion, according to which the absence of a DURC would have a negative impact on the generation of the cash flows necessary for business continuity and, more generally, on the economic and financial sustainability of the restructuring path.
The order further emphasizes that such prejudice would not be confined to the immediate dimension of liquidity, but would also affect the company’s prospective value, since the inability to operate with the public administration and to collect receivables arising from public contracts would inevitably impact the company’s ability to keep its operating cycle in balance and the very attractiveness of the business as a whole in negotiations with creditors.
From this perspective, the court considered that failure to grant interim relief could jeopardize business continuity and impair the successful outcome of ongoing negotiations, thereby negatively affecting the interests of the creditor body.
In line with this approach is the subsequent order of the Court of Como of 5 March 2026[4], issued in the context of the same negotiated composition commenced by the same company and already the subject of the previous order of 7 November 2025. The order thus represents the natural continuation of the same interim trajectory, having been adopted following a request to extend the interim measure relating to the DURC—and to extend protection to the DURF, which in the case of the previous order had already been issued by the authority pending the confirmation hearing on the interim measure—previously granted by the court. In this sense, the decision confirms and develops the approach adopted at the earlier stage, reiterating the admissibility and function of interim measures aimed at determining the conditions for issuance of the DURF and the DURC. In this ruling, the court also drew on further support from the case law of the Court of Ivrea (Court of Ivrea, 24 December 2025[5]), which emphasized that the interim determination of the conditions for issuing the DURC must result from a “balanced reconciliation” between the interests of public bodies and the need to enable the company to continue the restructuring path, taking into account, on the one hand, the reasonableness of the plan and, on the other, the prospect of satisfying the public creditor, including through an instalment repayment plan.
On these premises, the court found that the requirement of fumus boni iuris was still present at this stage, giving particular weight to the expert’s opinion, which confirmed that the draft restructuring plan continued to appear not manifestly implausible and that the development of negotiations with creditors was still consistent with the objective of restoring the company’s balance. The court also observed that the difficulties encountered in finalizing the plan were attributable primarily to factors beyond the company’s control, and in particular to the inertia of the debtor public administration with respect to payment of a substantial receivable owed to the company, which had led to the initiation of administrative litigation still pending.
This line of case law reaches a point of maturity in the order of the Court of Milan of 5 December 2025[6], which is, at present, one of the most comprehensive rulings on the subject, as it expressly and jointly addresses the issue of the DURC and the DURF, referring to the approaches already developed in the earlier decisions of the Courts of Milan and Genoa. In the case at hand, following the applicant’s request to extend by analogy the scope of what case law had already recognized with respect to the DURC to the Single Tax Compliance Certificate (DURF), the court acknowledged that both certificates were essential conditions for business continuity.
The court noted, in fact, that over 90% of the debtor company’s turnover was derived from public contracts and that the absence of the certificates would lead to suspension of payments, loss of contracts, and, ultimately, the compromising of the restructuring path.
The decision also places significant emphasis on the role of the expert in the negotiated composition, whose opinion is considered one of the central elements for judicial assessment, as the privileged tool to verify the consistency and sustainability of the restructuring path proposed by the company.
Particularly significant is the express extension of the interim‑relief reasoning to the DURF as well. The court observed that, in business contexts heavily reliant on public procurement, the availability of the social security and tax compliance certificates is an indispensable condition for continuing operations.
Lastly, the ruling also clarifies the content and limits of the interim protection that may be granted in such cases. The court specified that the judge cannot replace the competent administration by directly ordering the issuance of the certificates, but may, by way of interim relief, determine the existence of the conditions for their issuance. In this way, the interim measure takes the form of an instrumental judicial determination, aimed at preserving business continuity and the company’s operability, without interfering with the administration’s own prerogatives.
[[1]] Court of Milan, 24 January 2025, Reporting Judge Vasile, in ilcaso.it.
[[2]] Court of Genoa, 19 September 2025, Reporting Judge Monteleone, in ilcaso.it.
[[3]] Court of Como, 7 November 2025, Reporting Judge Aliquò, unpublished.
[[4]] Court of Como, 5 March 2026, Reporting Judge Aliquò, unpublished.
[[5]] Court of Ivrea, 24 December 2025, Reporting Judge Lorenzatti, in dirittodellacrisi.it.
[[6]] Court of Milan, 5 December 2025, Reporting Judge Pipicelli, unpublished.
[[1]] As to the DURC, the governing framework consists of Law No. 232 of 2016 and Ministerial Circular No. 33/2016, which implicitly led to the repeal of the provisions contained in Article 5 of the Ministerial Decree of 30 January 2015 that made issuance of the DURC conditional upon full payment of social security and welfare debts. “According to the new rules, proposals for the treatment of social security debt may provide for partial satisfaction and the DURC should be issued even in such circumstances, in order to facilitate the continuation of business activity and going‑concern operations” (thus, Court of Milan, Second Civil Division, 24 January 2025 (Reporting Judge Dr. Luisa Vasile)).
As to the DURF, the applicable framework consists of Article 7 of Legislative Decree 24 March 2025, No. 33 and Revenue Agency Circular No. 1/E of 12 February 2020, which recently repealed the previous framework contained in Article 17‑bis of Legislative Decree 9 July 1997, No. 241, which makes issuance of the DURF conditional upon applicant companies having met the following requirements:
(i) have been in business for at least three years;
(ii) be up to date with filing obligations;
(iii) have made, during the tax periods covered by the corporate income tax returns filed in the last three years, total payments recorded in the tax account in an amount not less than 10% of the revenues or fees reported in those returns;
(iv) have no tax roll entries, enforceable assessments, or debit notices assigned to collection agents relating to income taxes, the regional tax on productive activities, withholdings, and social security contributions in amounts exceeding EUR 50,000.00, for which the payment deadlines have expired and amounts are still due or no suspension orders are in effect.
Concluding remarks
The analysis of case law on DURC and DURF clearly highlights the evolution of the role of interim measures under the Code of Business Crisis, which have now taken on a central, no longer residual, role.
This centrality, however, does not immediately emerge from the legislative text. The provisions of the Code of Business Crisis sketch the institution in deliberately essential terms, defining its atypical nature and instrumental function, but without fully developing its operational potential.
It is in practical application and in judicial elaboration that interim measures have found their real dimension.
They no longer merely perform a defensive function against creditors’ initiatives, but assume an active function in managing the crisis, intervening on factors that directly affect business operability.
The decisions examined show that interim measures do not stand in opposition to sector‑specific regimes—such as those on public procurement or relations with the public administration—but rather fit within a balancing of interests, in which the protection of business continuity and the company’s value assumes primary importance in view of the best satisfaction of creditors. From this perspective, interim measures operate as instruments to stabilize the company’s operability, protect financial flows, and preserve enterprise value.
Their effectiveness, however, depends on consistency with a credible restructuring path and on the applicant’s ability to demonstrate the link between the measure sought and the restructuring plan, as well as on the ability of the professionals involved—lawyers, experts, commissioners, and judges—to act in a coordinated and coherent manner.
Ultimately, practical application shows that interim measures are today among the most relevant and sophisticated tools in the crisis‑regulation system, whose proper use requires careful balancing between the company’s needs and the protection of creditors’ interests.
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