With Judgment No. 24859 of September 16, 2024, the Supreme Court of Cassation, Third Section, clarifies the correct procedure for executing the seizure of shares of limited liability companies (s.r.l.) held by trust companies.
The case originated from a third-party seizure executed according to the provisions of Article 543 of the Italian Civil Procedure Code (c.p.c.), initiated by the creditor against the debtor’s corporate shares entrusted to trust companies.
Once the enforcement procedure was initiated, the Judge of Enforcement (G.E.) noted in an order that if the shareholding held by the trust company pertained to an s.r.l., the seizure should occur according to the provisions of Article 2471 of the Italian Civil Code (which states, “The shareholding can be subject to expropriation. The seizure is executed by notifying the debtor and the company, followed by registration in the business register.”) and not according to the procedures for third-party seizures as outlined in Article 543 c.p.c., thereby declaring the seizure null and void.
The Supreme Court addressed the matter, and in the commented judgment, it reconstructed the limits and scope of application for both the seizure executed in the form of third-party execution and that regulated by Article 2471 c.c. According to the Court's interpretation, the latter provision establishes that shares in an s.r.l. can be subject to expropriation, based on the understanding that such shares are considered intangible assets. Consequently, this leads to the method of executing the seizure: since the asset to be seized is not a credit that the debtor holds against a third party, but an intangible asset, the procedures for third-party seizure cannot be applied.
Conversely, the rules for direct seizure against the debtor must be followed, which provide specific operational procedures that differ from those indicated in the civil procedure code. Therefore, shares of participation in an s.r.l. can only be seized from the member who holds them, and the seizure must be notified to the company to inform it of an event affecting its structure, although this is not necessary for the completion of the seizure itself.
In other words, the notification is not needed to allow the company to provide a statement of the quantity or value of the shares during the hearing— as is the case in third-party expropriation—but merely to inform it of an event capable of impacting the corporate structure. Subsequently, the seizure must be registered in the business register to fulfill the publicity requirement and ensure that the binding effect is enforceable against third parties.
A similar situation applies to the seizure of corporate shares held by trust companies: since the fiduciary title does not entail a transfer of ownership from the trustor to the trustee (known as German fiduciary), the form of seizure to be used remains that provided for by Article 2471 c.c., based on the fact that the trustee is not a debtor of the debtor but merely an authorized subject, by virtue of the mandate given by the trustor, to exercise the rights arising from the shareholding.
Lawyer Mattia Collalti