The Tribunale di Bologna has recently issued a judgement concerning the effects of the cancellation of a company from the register of companies and the fate of the company relationships that have not been resolved at the time of cancellation, with particular reference to the former members’ legal capacity to sue in order to safeguard them.
In fact, following the 2003 reform in Italian corporate law, a ruling of the Corte di Cassazione has stated with regard to this issue that “the cancellation from the register of companies determines ‒as opposed to the past‒ the dissolution of the company”.
Therefore, in Italy the principle according to which the cancellation of a company from the register of companies always determines its dissolution is undisputed, even if there are relationships that have not yet been resolved.
Following this new view, what should then be the fate of these company relationships once the company no longer exists?
The judgment issued by the Tribunale di Bologna, in confirming the position expressed by the Corte di Cassazione, is a further warning to companies to take action before they are cancelled, in order to check the status of all existing relationships from which rights to shareholders might possibly arise, so as to legitimize the latter to act for the protection of said rights.
In relation to what relationships does the company though have to take action?
The answer to that question is: whenever the company has an interest which is a so-called “mere claim”, namely a right to credit that is still uncertain or non-liquid, whose entry in the budget would require an additional judicial or out of court activity.
In such cases, there is the legal presumption according to which the fact that the company has not taken action in relation to such rights “gives grounds for considering that the company has renounced them”.
In other words, the choice of the company to be cancelled from the register of companies regardless of an unresolved situation, of which the liquidator had (or should have had) cognizance, should be understood as tacit expression of will to renounce its claim.
In this case, the Tribunale di Bologna, sharing the plaintiff’s view, felt that the company, prior to the cancellation, acted in several ways which were incompatible with the intention of renouncing its rights. In particular, the liquidators had entrusted an expert with carrying out an accounting report on a series of relationships that were still existing, following which the existence of a number of claims in favour of the company were revealed. Those claims were then transferred to the former partner, who was then able to take legal action to secure them.
These are obviously peculiar cases that involve the need of careful assessment by trained professionals, in order to correctly detect them and to choose the best possible strategy to reach a solution.
(Bologna Office – Elisabetta Sgattoni – 0039 (0)51 2750020)
