The United Sections of the Court of Cassation, by ruling no. 6070 dated 12 March 2013 (and rulings with an identical content nos. 6071 and 6072 handed down on that date), were called upon to pronounce yet again on the question concerning the fortunes of the relationships in substance and in trial pending at the moment of the cancellation of a company from the registry of enterprises.
The United Sections faced the question starting from the principles of the law set forth in its previous interventions. Indeed, by rulings nos. 4060 and 4062 in 2010, the Supreme Court highlighted the innovative extent of art. 2459 of the Civil Code (as compared to the formulation of previous art 2456 of the Civil Code which governed the same matters), given that following the reform of company law implemented by Legislative Decree no. 6 of 2003, cancellation of the company from the registry of enterprises leads without doubt to the extinction of the entity, with effect from the cancellation itself. A principle which, the Court underlines in the ruling here commented, appeared applicable also to voluntary cancellation of partnerships from the registry, although these companies are not concerned directly by the above provision but rather the provision set forth under art. 2312 of the Civil Code applies. However, given that the act of cancellation of partnerships has value of merely declaratory publication, it can be surmounted subject to counter proof: it is necessary then to show not so much the substance of relations in being, as much as the will to pursue the corporate activity irrespective of cancelation from the register of enterprises.
In the light of these principles, the United Section dwelt on the issues that follow on from cancellation of the company from the registry of enterprises (and so following its extinction) concerning the asset/liabilities relationships either remaining pending during the course of the liquidation, or because overlooked (so-called “non-liquidated residues”) or because their existence was discovered only later (so-called “contingencies”).
The analysis made by the supreme court dwelt initially on liability relations, i.e. those that imply the existence of obligations weighing upon the company, as the lawmaker was concerned with governing only the fortunes of debts remaining unmet after cancellation of the company.
In this area the solution offered by the supreme judges is based on an interpretation in terms of successors of what is laid down under art. 2495 of the Civil Code, whose rationale lies in preventing the cancellation of the company bringing about disappearance of unmet debts and that the actual debtor company might, by its unilateral behaviour, expropriate a creditor of their right. This objective can be achieved only if it is acknowledged that unsettled debts of the extinct company transfer to partners save for the limits of liability foreseen in regulations. The Court furthermore underlines that, by way of confirmation of this reconstruction there exists a further argument according to which the debt, in respect of which partners will be called upon to respond, preserves its cause and its original judicial nature, as it is identified in the same debt as applied in respect of the company.
Greater difficulties arise in defining the fortunes of residual non-liquidated assets and the capital gains from the liquidation of a company cancelled from the registry, as the lawmaker when reforming, did not foresee a provision here.
However the United Sections felt it could apply the same successor mechanism as was indicated for the debts of the company: a corporate bond failing to exist, entitlement to residual or surviving property and rights returns to being attributable to the parties who made up the personal substrate, the partners.
Therefore, the United Sections have set forth the principle of law on the basis of which, should extinction of the company that is a consequence of cancelation from the register of enterprises, not be matched by the failing to exist of all judicial relationships applying to it, an phenomenon occurs of a successor type and so:
- the obligations are transferred to partners, who are liable in this regard, up to the limits of what is collected following the liquidation or without limit, depending on whether, pedente sociatate, they had unlimited liability for corporate debts or otherwise;
- the rights and the property not included in the financial statements of the liquidation of the extinct company are transferred in the same manner to partners, under a regime of joint-entitlement or undivided communion, but not the mere demands, even if actioned or actionable in judgement, nor the rights of credit that are still uncertain or illiquid and whose inclusion of said financial statements would have required a further activity (judicial or extra-judicial), the lack of which on the part the liquidator allows it to be held that the company has forgone them.
By the ruling being commented, the Court has also clarified what the effects of cancellation from the registry of enterprises are from the trial standpoint.
There can be no doubt that it is impossible to undertake any suit or call into judgment a company that has been cancelled from the registry of enterprises, whereas greater issues arise in the case of the cancellation taking place once the case has already commenced.
In this case the Court has stated that a trial interrupting event occurs, as governed by the provisions set forth under articles 299 and ff, code of civil procedure, with possible prosecution or resumption of the judgement by or against partners. The sole exception is made up of the potential, which is foreseen under art. 10 of the bankruptcy Law, that a company be declared bankrupt within one year from cancellation from the registry of enterprises, with the result that both the proceedings for declaration of bankruptcy and any phase of impugnment will be performed vis-à-vis the company (through its legal representative).
In the case of the judgement carrying on without interruption and the cancellation of the company from the registry of enterprises occurring at the passage to the subsequent tier (and this because the interrupting event was not known or became known too late), the United Sections have held that the need for stability of the trial, which allows prosecution exceptionally, must be deemed to be limited to the tier of judgement wherein the event has occurred; on the other hand, if the interruptive event has not been recorded in the manner foreseen under articles 299 and ff of the code of civil procedure, or occurred when it was not possible to evidence it, the judgment of impugnment must always be taken by or against the parties actually legitimised, i.e. by the partners or against the partners, successors to the extinct company.