The Court of Trento (3 May 2016) ruled that the judicial liquidator of the concordato is entitled to bring a claim against directors and statutory auditors, although the claim is not considered by the liquidation plan and has not been approved by the shareholders of the company
A limited liability company undergoing liquidation within a concordato preventivo procedure files a claim for damages against its former directors and statutory auditors.
Case law only occasionally dealt with the issues that the Court of Trento faced in this case:
- whether claims for damages against directors and statutory auditors provided by Article 2746 ICC are included in the assets that the company – subject to a concordato preventivo procedure based on a liquidation plan – offers to pay out its creditors;
- whether such claim requires prior approval by the company’ shareholders as provided by Articles 2476 and 2477 ICC or by the statutory auditors pursuant to Article 2393, third paragraph, ICC;
- whether the judicial commissioner or the judicial liquidator is entitled to file the claim.
The Court of Trento ruled that:
- first of all, the claim may be brought even if it is not expressly mentioned in the concordato preventivo liquidation plan; this is because Article 160 IBL implies in such a case that all of the company’s assets and claims (including those against directors and statutory auditors) must be realized to pay out the creditors;
- secondly, the claim may be brought although it was not previously approved by the shareholders or by the statutory auditors, since within concordato preventivo there can be no concern that such action is brought to harass the directors;
- the judicial liquidator is entitled to bring the claim and not the judicial commissioner, who can only claim damages for the company’s creditors (according to the special provision of Article 240 IBL) in criminal proceedings for bankruptcy crimes against the directors or statutory auditors.
With respect to the first issue addressed by the Court of Trento, the decision is based on Article 2740 ICC, according to which no asset of the debtor can be exempted from creditors’ enforcement actions unless the law provides to the contrary: according to the Court, concordato preventivo rules do not entail such a provision.
A partial liquidation of the company’s assets (excluding possible claims for damages against directors and auditors) should therefore be ruled out. This issue is controversial (see Court of Mantua, 9 October 2014 and Court of Naples, 5 July 2013 allowing a partial liquidation; Court of Turin, 5 June 2014 to the contrary), but the opinion allowing a partial liquidation seems preferable for the following reasons: (i) the chance to bring a possible claim for damages against directors and auditors (although it would not be actually brought according to the concordato plan) should in any case be mentioned in the concordato proposal to the creditors and the judicial commissioner must comment on this in his report to the creditors (it should also be considered that, failing the debtor to report on the possible claim, the judicial commissioner can ask the Court to terminate the concordato procedure according to Article 173 IBL); (ii) creditors can therefore cast their vote on the concordato proposal being fully aware of the whereabouts of the potential claim; (iii) concordato preventivo does not prevent creditors (see Court of Piacenza, 12 February 2015) from filing individual claims for damages against directors and statutory auditors pursuant to Article 2394 ICC, providing for an additional and specific cause of action different from that which could be exercised by the company (or the judicial liquidator pending the concordato preventivo procedure); (iv) there is no doubt that assets can be excluded from liquidation under any concordato proposal different from a liquidation proposal.
With respect to the second issue addressed by the Court, it should be noted that in concordato preventivo the debtor remains in possession and the rules of corporate governance continue to apply, as it is confirmed by the fact that – in certain specific situations – the law provides explicit exceptions (see Article 185 IBL regarding the concordato competing proposals). The majority of scholars and part of the case law support such opinion.
With respect to the third issue, the decision of the Court can be approved unconditionally: indeed, as the Court of Cassation has ruled (decision No. 14052 of 7 July 2015), the judicial commissioner’s supervisory and consultative role is inconsistent with him being granted authority to bring claims and, on the other hand, the only case where he is provided this authority is in criminal proceedings, as expressly provided by Article 240 IBL, which is an exceptional rule and cannot be extended to other cases.