The procedural effects of the cancellation of the company from the Commercial Register
The effects of the cancellation of a company from the Commercial Register are described in article 2495 of the Italian Civil Code, introduced by the 2003 company law reform.
The cancellation, however, does not imply the automatic disappearance of the relationships belonging to the company; article 2495 of the Italian Civil Code only partially defines some of the effects deriving from the extinction. This provision establishes that, after registration of the cancellation in the Commercial Register, without prejudice to the extinction of the company, unsatisfied company creditors may assert their claims against former shareholders, limited to the amounts collected by them on the basis of the final liquidation balance sheet, and against former liquidators if the non-payment was due to their fault. It also establishes that the request for recovery of the claim may be proposed by the company’s creditors within one year of the cancellation at the company’s last registered office.
This rule does not describe what happens to the company outstanding proceedings at the date of its cancellation.
Since the legislator does not regulate this phenomenon, the Supreme Court, over the years, has intervened on this point[1], elaborating the principle that the extinction of the company does not entail the automatic termination of the proceedings. In addition, the extinction event may lead to the interruption of the proceedings, in accordance with the provisions of Article 299 et seq. of the Italian Civil Procedure Code; in this case, any continuation or resumption of the proceedings will therefore take place by or against the shareholders, successors of the company, pursuant to Article 110 of the Italian Civil Procedure Code. The Judges of the Court of Cassation have also established that if the attorney, through whom the company has appeared in court, has not declared at a hearing or notified the other parties of the extinction of the company, in accordance with the provisions of Article 300 of the Italian Civil Procedure Code, the company’s attorney may continue to represent the party as if the event of termination had not occurred.
Recently, the Court of Cassation has intervened again on this issue[2] and affirmed the following principle of law: “the declaration of the extinction of a company, during an outstanding proceeding, does not also determine the extinction of the claim made, unless the creditor –in this case the company- has expressed, even through a conclusive conduct, the willingness to eliminate the debt by communicating it to the debtor and provided that the latter has not declared, in a reasonable time, not to take advantage of this elimination“.
Therefore, we can observe that the courts prefer an extensive interpretation of the concept of extinction, as a direct effect of the cancellation of the company from the Commercial Register, trying to protect those “questions” still unresolved at the time of the cancellation of the company.
[1] Court of Cassation, judgement no. 2625, published on February 2, 2018; Court of Cassation, judgment no. 23563, published on October 9, 2017.
[2] Court of Cassation, judgment no. 22432, published on October 16, 2020.