Long term of 60 days for the opposition of creditors in case of split-off without joint-stock company
Ordinary Court of Novara, decree no. 2366/2020
With the decree no. 2366/2020, the Court of Novara intervened in the issue of the opposition of creditors to the demerger operation, affirming that the reduction from 60 to 30 days as per art. 2505-quater Civil Code cannot be applied.
The Judge thus formulated the first jurisprudential ruling on the subject, inserting himself within a complicated doctrinal debate, which revolves around the interpretation of art. 2506-ter of the Civil Code: the latter lays the regulatory basis of the demerger operation, recalling – for applicability – a variety of articles dedicated to the merger operation. However, the articles referred to do not include art.2505-quater, according to which the deadline for the opposition of receivables is reduced by half if no shareholding company is involved in the merger operation.
The lack of explicit reference to the article in question has sparked a debate on the subject.
The Court of Novara has aligned itself with the more literal interpretation of the rule, according to which it is necessary to comply with the express will of the legislator, who does not recall or mention art.2505-quater. The reason for the decision lies in the substantial difference between the two operations, because the split is a more random operation for the creditors of the split company, since the latter is deprived of a part of its assets. To this end, Decree no.2366/2020 wanted to maintain a more prudent approach, attributing reinforced protection to creditors (who will have a much longer-term for the opposition).