The retrogressive transformation pursuant to Article 2500-septies of the CC from a joint-stock trust company is not admissible according to the Court of Rome Office of the Judge of the Register of Companies held by the Chamber of Commerce, Industry, Crafts, Agriculture of Rome, which comes with the judgment of 20/07/2017 RG n. 6934/2016.
With a request transmitted electronically on March 22, 2016, the notary drawing up a request for registration in the register of companies of the resolution taken by the shareholders’ meeting of the company srl in liquidation on March 9, 2016, concerning the transformation of the same; in particular, the shareholders’ meeting of the aforementioned company deliberated the heterogeneous regressive transformation of the company Srl in liquidation into trust with beneficiaries governed by the Jersey Regulatory Law (TJL 1984) for a period of 60 years for the purpose of a better and orderly liquidation in the compliance with the par condicio creditor, attributing any residual liquidation to the final beneficiaries. The Nomadeagle Lda company was appointed Trustee of the Trust. It was also acknowledged that as a result of the transformation the obligations assumed by the company remained in the hands of the trust until the complete satisfaction of the social credits. The resolution became effective after sixty days from the registration of the deed with the Register of Companies on 7 April 2016 pursuant to art. 20, paragraph 7 bis, of legislative decree 24 June 2014, n. 91 (converted into Law 11 August 2014, No. 116).
Lastly, it supported the office of the business register, and due to the effect, it, therefore, demanded its cancellation, the impossibility of registering the regressive transformation resolution by a trust company as it was not expressly provided for by law.
The judge accepted, ordering the cancellation of the registration of the transformation resolution.
Indeed, the question of the heterogeneous regressive transformation from trust companies pursuant to art. 2500-septies CC is complex and controversial, and so, as we will see, due to the non-explicit inclusion, in the category of the cases listed therein, of the trust although other and similar institutions are part of it so the Foundations, with which the trust has one a close analogical bond in relation to the destined patrimony, as the Communions of Companies, with which the trust shares the juridical non-subjectivation and the commonality of assets. The reasons for the legislator’s voluntariness to foreclosure or deliberate exclusion due to the unsuitability of the institution are no longer grasped.
Undoubtedly the special and evolutionary character of the norm, although unexpected, appears. In fact, while in the anterior era an evolution of this magnitude was not imaginable, in anticipation of the sacredness of the regulations, in the post-reform era, in which the scenario is changed to such an extent that it cannot be imagined beforehand, the heterogeneous corporate transformation both in retreat from society and in progress in society, it is remarkably innovative and deliberately open, it could well be said, given the characteristic simplifying principle of cheapness of the negotiating acts and, with it, of the rules to protect creditors or dissenting shareholders.
The new article of the 2500-septies civil code, established pursuant to Legislative Decree 17 January 2003, n. 6 (OJ January 22nd 2003, SO n. 89), which came into force on 1/1/2004, inevitably allows, as never before, a transformation in adherence to which the starting point is a commercial company, as regulated in the garments V, VI, VII of Title V of the Civil Code, while the point of arrival is one of the cases listed therein, namely Consortia, Consortium Societies, Cooperative Societies, Company Communions, Unrecognized Associations and Foundations, this one, in which, as of In all evidence, the trust does not emerge, but it can be seen where it is considered that it is not expressly forbidden.
It is widely thought in doctrine according to which the legislator of the reform of the time did not intend to deny access to the trust and so much, obviously, for not having expressly precluded it, and then, the idea for which, the failure to insert in the perimeter it would have been moved by assessments of the unsuitability of the institute, as it seems to grasp in some analyzes not entirely convincing, in order not to enjoy the juridical subjectification, it cannot find acceptance where it is considered that the Company Communion, even without it of this subjectification, it is considered fully, therefore, reasonably, one is led to believe that by analogy a heterogeneous regressive transformation into a trust is not only acceptable but is also admissible.
In support of this thesis, the well-argued Study n. 17-2013 / I of the National Council of Notaries, with which it explicitly explains the extensive nature of the law, contrary to the evident repressive character of the sentence in question, in relation to which, we will not fail to outline some aspects that are not entirely acceptable, especially in the part in which it exalts the impossible character of the transformation into a liquidation trust to the complete detriment of the valid socio-economic character of the norm, also in light of the undisputed causal mutability of the transforming entity that can be deduced from the admissible regression in a different entity such as the Communion of Company, the Foundation or the Unrecognized Association as opposed to the admissible progression of the latter in companies with the sole exception for the non-recognized Association, which, in the course of a progressive heterogeneous transformation, must earn the recognition of the institution.
Preliminarily, it is worth mentioning here that the art. 7 of the Delegation Law, for the corporate reform, mainly on the subject of transformation, dictates some fundamental principles such as to be duly taken into account when drafting the article, such as Simplification, Procedural Favor, Economy, Conditions and Limits of the same, as well as the protection of both creditors, who are allowed to file an opposition, as well as dissenting minority shareholders, who are allowed to withdraw, these elements, suitable for favoring the transformation, and, for the protection of which, however, the rule on the continuity of legal relations pursuant to art. 2498, third paragraph, last part, Civil Code, also clarifying, that the continuation pertains both to the procedural relationships of the institution transformed as a possible insolvency procedure in force at the time of the transformation, subject to the concrete hypotheses of conflict with the aims or the state of the procedure. In the same way, the report accompanying the Delegation Law, due to the economic requirements of the negotiating acts, encouraged the implementation of a transformation procedure into a single procedure with a single passage, and, for this reason, insisted on permanence, with respect to the ‘transformed entity, of rights and obligations and this in adherence to recent orientations, also jurisprudential, which, insist on the opportunity of such a transformation as a general instrument of resolution of conflicts.