"NEWS September 30, 2016-pre-dismissive view of integrity of heritage"

Posted by on Sep 30, 2016

From the moment you check a cause for dissolution, administrators retain the power to run the company and the legal representative, remaining in Office until the registration of the instrument of appointment of liquidators in the commercial register, in accordance with paragraph 3 of article 2487 bis of the Italian civil code. The power that is attributed to them is configured solely for the purpose of preservation of the integrity and value of the company's assets. If the Department managers were to perform acts or omissions in contravention of the foregoing, it will be the same defendant liability for damage incurred to the company, the social partners, creditors and third parties. For this reason, it is clear how this period and administrators of particular importance, since, although they do not deal with mere liquidation activities are however obliged to intervene by performing acts preparatory to the liquidation phase.

All this because, upon the occurrence of one of the causes for its dissolution, members ' attention, as it denotes the OIC 5, is no longer aimed at increasing the value of the assets of the company, but rather to monetize as quickly as possible, safeguarding the interests of creditors. The document quoted States: "there is thus an economic transformation of capital invested in the enterprise: it is no longer a tool of production of income, but a mere accumulation of goods destined for conversion into liquid cash to pay creditors and the distribution to the members of the remaining net assets."

So that power managers, who before the cause of dismissal was considered free from particular constraints, but now it is linked to the preservation of the integrity and value of the company's assets.

The harmful activities of responsibility you configure in regeneration operations that a new business risk, as he cites the Court of Milan with the judgment of the 4/1/2011: "for the purposes of the statement of Directors ' liability for prohibition of carrying out new operations under the current article 2486 cod. CIV. , it is not enough to attach an aggravation of asset loss, but you need to prove that the dismissal of State conduct next advisors did was illegal, proving that it was an activity not geared to the conservation of the value of the company's assets, but oriented to the continuation of typical activity resulting in the recruitment of new business risk. " The same Court of Milan, by judgment of 9/23/2015, says that the damage from illegal continuation of social activity in the presence of a cause for dissolution is, theoretically, the aggravation of the "net loss" in the erosion of "equity" which continues from characteristic activity (not merely conserving heritage value and integrity under article 2486 cod. CIV.) may have produced. Is, in this case contrary to article 2486 of the civil code, the case presented in the top of the Court in 6/9/2016, where the lack of invitation to the general meeting of shareholders following the loss of their capital, to discuss the reduction of the share capital and the simultaneous increase of the same amount that is not less than the legal limit, which is the liquidation of the company with continuation of social activity for years after the occurrence of the causes for its dissolution, but always directed towards attainment of profits with costs exceeding revenues, resulted in further losses to the detriment of the company's assets and third parties. We believe it is relevant the judgment of the Court of Lecce of 12/27/2011, which provides that if the worsening instability resulting in "new business", prohibited under article 2486 cod. CIV., where at the time of the occurrence of a case of dismissal there is already a negative asset imbalance situation, does not constitute compensable damage social for creditors.

Notwithstanding the provisions of article 2486 of the civil code, in outlining the possible activities that prevent the preservation of the integrity of the social value, you may disregard the requirement that administrators have in order to performance of duties imposed on them by law and the articles of association with the diligence required by the nature of the assignment and their specific expertise.

by Clare Raghuram and Sandra Waxed