The Court of Appeal of Milan, pronouncing on the appeal proceeding against a decision of the Court of Milan which had rejected a balance challenge, pointed out the theme of the interest, coordinating the “principle of continuity of financial statements” with the effects of a final decision deriving from a rejection of the challenge against the following balance sheets. As we will note, the Court of Milan made a wide application of the rule pursuant to section no. 2434- bis of the Civil Code, which for this reason certainly deserves to be reported.
The facts are the followings:
- a minority shareholder of a famous italian joint stock company active in the steel industry challenges, before the Court of Milan, the resolution which approved the financial statement to the 2007;
- the Court of Milan rejects the question;
- the minority shareholder appeals the decision of the Court;
- the defendant appeared before the Appeal Judge contesting the validity of its questions, asking the complete rejection, with confirmation of the burdened decision;
- during the appeal proceeding, the pronounces of rejection of the challenge against the balances to 2006, 2008, 2009 and 2010, referred to the same voices and items and grounded on the same arguments as the challenge against the balance to 2007, become final;
- given this force of res judicata, the defendant company – in its closing deed – points out that the interest of the minority shareholder was ceased.
From this point the question: is still there the interest to challenge a balance if similar challenges against the following balances are rejected with pronounces become final? Or does it, on the contrary, have to be considered ceased? The appeal Court of Milan responds in the second way.
The Court, indeed, sustains that:
- in the system of rules on companies is in force the “principle of continuity of financial statements” (steaming from section no. 2434-bis of the Civil Code);
- such principle requires that every balance follows the previous and precedes the next in close continuity and interdependence;
- such principle has to be coordinated with the principle on the effects of res judicata;
- as a consequence, if similar challenges are promoted against many balances and the followings to the first are rejected with decisions become final, it is no more possible to proceed with the first challenge for intervening lack of interest as:
- on the one side, pursuant to the force of res judicata, it is no more possible to modify the balances subject to challenges rejected with decisions become final;
- on the other side, in force of the recalled “principle of continuity of financial statements”, it is no more possible to modify even the previous balance to the ones on which has fallen the force of res judicata (worth the loss of continuity);
- in the specific case subject to its exam, it has verified the situation about which supra sub d), as
- on the one hand, the balances to 2008, 2009 and 2010 are no more revisable because of the res judicata;
- on the other hand, the balance to 2007 would have been no more modifiable, necessarily having to be in continuity to the ones to 2008, 2009 and 2010.
To be noted, however, that the judgement has also focused on procedural aspects of the case, pointing out that the defendant focus on the (intervening) lack of interest on the demand, although it was formulated in the closing deed, did not constitute a mutation libelli, considering the rule for which the intervening lack of interest is, according to the wellestablished case-law, also detectable ex officio in every stage of the process.