Denied access to the composition with creditors for companies deleted from the commercial register
With a recent ruling (S.C. n.4329/2020), the Supreme Court once again addressed the issue of the relationship between the cancellation of the company from the register of companies (by the Article 2495 of the Civil Code), whose bankruptcy is requested within one year of cancellation (Article 10 of the Bankruptcy Law), and the access to the composition with creditors’ procedure: from the combined provisions of the Article 2495 of the Civil Code and the article 10 of the Bankruptcy Law, it appears that access to the composition with creditors is denied.
Taking up a previous jurisprudential tendency (S.C. n.21286/2015), the Supreme Court reiterated that the arrangement with creditors aims to resolve the company’s crisis. Consequently, the decision to cease business activity, by deleting the company from the commercial register, denies access to the procedure.
This is a jurisprudential orientation strongly linked to the new regulatory formulation of Article 2495 of the Civil Code, from which the extinction effect of the legal entity derives. In addition, there is the consequent loss of capacity and corporate legitimacy also for individual shareholders, assuming that the ownership of the exercise of any legal action (the ownership of which would have belonged to the company then extinguished) has ceased due to a voluntary waiver following the cancellation. In the previous legislation, on the other hand, the cancellation from the company register did not result in the extinction of the company, as it was subordinate to the effective liquidation of the pending legal relationships under its control.
The Supreme Court, therefore, wanted to align itself with the new Business Crisis Code, the last paragraph of Article 33 which states that: “The application for access to the procedure for composition with creditors or for approval of debt restructuring agreements submitted by the entrepreneur deleted from the register of companies is inadmissible“.
Therefore, having attested the inadmissibility established by the Supreme Court, the liquidator of the canceled company can only oppose an appeal for the declaration of bankruptcy and can lodge a complaint against the declaration of bankruptcy (Article 18 of the Bankruptcy Law). It is then denied access to other institutions for the regulation of the crisis, which requires the existence of business reality.