Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 21 November 2022 — LivaNova plc v Ministero dell’Economia e delle Finanze and Others

(Case C-713/22)

(2023/C 45/17)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: LivaNova plc

Respondents: Ministero dell’Economia e delle Finanze, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Presidenza del Consiglio dei ministri

Question referred

Does Article 3 of the Sixth Council Directive [82/891/EEC], (1) which (under Article 22 thereof) is also applicable to a division by the formation of new companies — in so far as it provides that (a) ‘where a liability is not allocated by the draft terms of division and where the interpretation of these terms does not make a decision on its allocation possible, each of the recipient companies shall be jointly and severally liable for it’, and that (b) ‘Member States may provide that such joint and several liability be limited to the net assets allocated to each company’ — preclude an interpretation of the provision of national law in Article 2506-bis, third paragraph, of the Italian Civil Code according to which the joint and several liability of the recipient refers, in relation to ‘liabilities’ not allocated by the draft terms, not only to liabilities of a nature already determined, but also (i) to those identifiable in the harmful consequences, arising after the division, of conduct (by act or omission) occurring before the division itself or (ii) of subsequent conduct developing from it, which has an ongoing unlawful nature and causes environmental damage, the effects of which, at the time of the division, cannot yet be fully determined?

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(1)  Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty, concerning the division of public limited liability companies (OJ 1982 L 378, p. 47).