Joint-stock company, Demerger project, Civil Cassation, First Section, Interlocutory Ordinance no. 32365 of 11/03/2022
Company – Joint stock companies – Demerger project – Joint and several liability of the beneficiary companies pursuant to art. 2506 bis, paragraph 3 of the Italian Civil Code – Liabilities with destination not deducible from the project – Liability for environmental damage – Harmful consequences that cannot be determined at the time of the demerger and occurred after the same – Inclusion among the liability items – Compatibility with art. 3 of the VI Council Directive 82/8912 / EEC – Referral for a preliminary ruling to the EU Court of Justice.
The First Civil Section ordered the preliminary referral to the EU Court of Justice, regarding the interpretation of art. 3 of the Sixth Council Directive 82/891 / EEC of 17 December 1982, in order to clarify whether this article – applicable, pursuant to art. 22, also to the demerger through the establishment of new companies in the part in which it establishes that “if an element of the passive equity is not attributed in the demerger plan and the interpretation of the latter does not allow to decide the division, each of the beneficiary companies is jointly liable “and that” Member States may provide that this joint and several liability is limited to the net assets attributed to each beneficiary company “- precludes an interpretation of domestic law, in particular, of art. 2506 bis, paragraph 3 of the Italian Civil Code, which means the joint and several liability of the referable beneficiary, as a “liability element” not attributed by the project, in addition to the liabilities of an already determined nature, including those identifiable in the harmful consequences, produced after the demerger, of conduct (commissive or omissive) that took place before the demerger itself or subsequent conducts that are its development, having the nature of a permanent offense, generating environmental damage whose effects, at the time of the demerger, are not yet fully determinable.
Source Supreme Court of Cassation
