Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Abstract: Splitting by spin-off: corporate and bankruptcy profiles – On 22 March 2023, pursuant to art. 51, paragraph 3, of Legislative Decree 2 March 2019, n. 23 which implemented Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 which amends Directive (EU) 2017/1132 on cross-border transformations, mergers and divisions (hereinafter, for brevity, the Directive ), important changes have been introduced to Book V, Title V, Chapter 2506.1 dedicated to “splitting by spin-off”. The split through spin-off constitutes an extraordinary operation which is added to the forms of split contemplated by the art. 2506, paragraph 1, c.c. through the rubric introduced by the art. 2506.1 paragraph 1 of the Civil Code. The possibility of assigning part of the assets of the demerged company to a new company that manages the company shareholdings in the beneficiary, without assigning shares or shares to the shareholders, constitutes an opportunity of no small importance in the context of the tools for regulating the crisis and the insolvency as it allows restructuring processes that allow the preservation of direct or indirect business continuity. Although part of the doctrine sees in this peculiar form of restructuring the dangers of abusive and distorted use of the institution in terms of damage to the rights of the members who, due to the exclusion of the right of withdrawal (and the non-applicability of the right to sale), would find themselves actually suffering a sort of partial expropriation of their assets without exercising any voice, in reality it must be considered that the Directive and the implementing regulations are fully in line with the recent reforms of the law of business crisis and insolvency where the voice rights of minority and opposition shareholders are sterilized in favor of the exclusive power of the management body to adopt tools to resolve business crises and insolvency.  

Sommario: 1. Introduzione. – 2. La scissione mediante scorporo nel nuovo quadro normativo. – 3. Tentativo di un inquadramento sistematico. – 4. Funzioni e applicazioni del nuovo istituto. – 5. La disciplina applicabile alla scissione con scorporo. – 6. Implicazioni di carattere concorsuale e utilizzo dello strumento nel contesto delle operazioni straordinarie nel CCII. – 7. Riflessioni conclusive in tema di revocatoria.

Keywords: Corporate split — Spin off — Assignment of company assets — Shareholders rights — mergers and acquisitions — code of enterprise crisis and insolvency — right of withdrawal.