Case C‑713/22

LivaNova plc

v

Ministero dell’Economia e delle Finanze and Others

(Request for a preliminary ruling from the Corte suprema di cassazione)

Judgment of the Court (Grand Chamber) of 29 July 2024

(Reference for a preliminary ruling – Companies – Divisions of public limited liability companies – Directive 82/891/EEC – Article 3(3)(b) – Division by the formation of new companies – Concept of ‘liability … not allocated by the draft terms of division’ – Joint and several liability of those new companies for liabilities resulting from the conduct of the company being divided prior to that division)

Freedom of establishment – Companies – Rules on divisions of public limited liability companies – Directive 82/891 – Division by the formation of new companies – Draft terms of division – Liability – Concept – Undefined liability, such as the costs of clean-up and environmental damage which were established, evaluated or consolidated subsequent to the division concerned – Included – Condition – Liability resulting from the conduct of the company being divided prior to the division

(Council Directive 82/891, Art. 3(3)(b))

(see paragraphs 62, 64, 67-69, 72-75, operative part)

Résumé

The Court of Justice recalls the circumstances in which it has jurisdiction to answer a question referred for a preliminary ruling which arises in the context of a purely internal situation and specifies, in the context of Sixth Directive 82/891, ( 1 ) the extent of the joint and several liability of the recipient companies of a division for debts arising from damage caused by the company being divided which was not determined at the time of that operation.

On 13 May 2003, SNIA SpA was divided by which it transferred part of its assets, namely all its shareholdings in the biomedical sector, to a newly formed company, Sorin SpA, which subsequently became LivaNova plc.

Following that division, the public authorities brought actions for damages against SNIA for the environmental damage which it had allegedly caused in the context of its activities in the chemical sector. SNIA and those authorities sought a declaration that LivaNova be held jointly and severally liable for all the debts arising from the costs of clean-up and environmental damage for which SNIA was liable prior to the division.

SNIA was found liable for that damage by the Italian courts. However, in so far as the events giving rise to that liability predated 13 May 2003, the date on which the division was carried out, LivaNova’s joint and several liability was limited to the transferred assets, in accordance with Italian legislation, ( 2 ) on the ground that the debts arising from the costs of clean-up and environmental damage constituted known SNIA’s liabilities but whose allocation could not be inferred from the draft terms of division concerned.

In order to determine whether LivaNova may be considered to be jointly and severally liable for the costs of clean-up and environmental damage caused by SNIA, the Corte suprema di cassazione (Supreme Court of Cassation, Italy), before which the dispute was brought by LivaNova, is uncertain as to the scope of the concept of ‘liability … not allocated by the draft terms of division’, referred to in Article 3(3)(b) of the Sixth Directive, which was transposed into Italian law by the concept of ‘liabilities the allocation of which cannot be inferred from the draft terms [of division]’.

In particular, it asks whether that first concept may cover undefined liabilities not allocated in the draft terms of division, such as the costs of clean-up and environmental damage which were established, evaluated or consolidated after the division concerned, which are the result of the conduct of the company being divided prior to the division or from conduct subsequent to that division, the latter conduct which is itself the development of the prior conduct of the company being divided.

The Court considers that the joint and several liability of recipient companies laid down in Article 3(3)(b) of the Sixth Directive applies to such liabilities, in so far as they result from the conduct of the company being divided prior to the division.

Findings of the Court

First of all, the Court notes that the division in the present case does not fall directly within the scope of the Sixth Directive, since SNIA transferred only part of its assets to Sorin, now LivaNova, and not all its assets as provided for in Article 21 of the Sixth Directive, which defines the concept of ‘division by the formation of new companies’.

However, the Court recalls that, according to settled case-law, it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts of the cases being considered by the national courts were outside the direct scope of EU law provided that the provisions of EU law whose interpretation is sought have been made applicable directly and unconditionally by national law, in order to ensure that internal situations and situations governed by EU law are treated in the same way, and provided, however, that the referring court indicates the connecting factor between the dispute pending before it and those provisions of EU law. ( 3 )

In the present case, the referring court has pointed out that the wording of the national provision at issue, which is applicable to the dispute in the main proceedings, is, in essence, equivalent to that of Article 3(3)(b) of the Sixth Directive, which it transposes into national law. In transposing the Sixth Directive in that manner, the Italian legislature therefore decided to apply Article 3(3)(b) of the Sixth Directive directly and unconditionally also to operations whereby a company limited by shares allocates only a part of its assets to another company.

Next, as regards the interpretation of the term ‘liability’ referred to in Article 3(3)(b) of the Sixth Directive, the Court explains, in the first place, that it is intended, in a broad sense, to cover any debt of the company being divided, whether certain or uncertain, defined or undefined, irrespective of its origin and nature.

In the second place, since, under the Sixth Directive, draft terms of division must set out the precise description and allocation of the liabilities to be transferred, those liabilities must have arisen, in principle, prior to the division concerned. In the case of the costs of clean-up and environmental damage, that requirement therefore implies that the infringement or the event giving rise to that environmental damage occurred prior to the division, but not that, at that date, that damage had been established, evaluated or even consolidated.

In the third place, one of the objectives of the Sixth Directive is, in particular, the protection of third parties. The concept of ‘third party’ is broader than that of ‘creditors, debenture holders, and persons having other claims on the companies involved in a division’. Accordingly, among third parties are those persons which though not yet creditors or persons having other claims at the date of the division concerned may become such after that division as a result of situations antedating the division. This is the case, for instance, for infringements of environmental law provisions which are found to have been committed in a decision adopted after that division.

That interpretation of the concept of ‘third parties’ supports that of the concept of ‘liability’, in the sense that it also covers undefined liabilities, but which result from conduct prior to the division.

Thus, the concept of ‘liability’, referred to in the first sentence of Article 3(3)(b) of the Sixth Directive, covers not only defined liabilities, but also undefined liabilities, such as the costs of clean-up and environmental damage which have been established, evaluated or consolidated subsequent to the division concerned, but which result from conduct prior to that division.

By contrast, the Sixth Directive lays down only a minimum system of protection of the interests of third parties in respect of liability arising only from conduct prior to the division concerned. Therefore, the question whether conduct subsequent to that division, but which is the development of prior conduct on the part of the company being divided, may be imputed to that company, with the result that the obligation to make good the damage thus caused, as part of its liability, will be transferred to the recipient companies in accordance with the detailed rules laid down by the Sixth Directive, must be determined on the basis of national law.

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

( 2 ) The third paragraph of Article 2506-bis of the Codice civile (Civil Code).

( 3 ) In accordance with Article 94 of the Rules of Procedure of the Court of Justice and the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings.