Difetto di legittimazione attiva dei liquidatori a presentare la proposta di concordato preventivo, Nota a Cass., 14 giugno 2016, n. 12273

[Machine translation] The ruling addresses an unprecedented issue (relating to the legitimacy of liquidators to submit the application for a preventive composition), but of extreme practical importance (since this is a defect that cannot be remedied), resolving it in accordance with regulatory data. The solution (lack of legitimacy) is based on the literal interpretation of art. 152 l.fall. and is in line with the formative power of the liquidators' tasks and prerogatives by the shareholders' meeting body (art. 2487, paragraph 1, letter c, c.c.). However, if the latter is limited to the appointment of liquidators, without making any indication regarding the liquidation criteria, the question arises whether the submission of an application for a liquidatory composition can also fall within the scope of application of the general rule referred to in art. 2489, paragraph 1, of the Italian Civil Code. In the note, after analyzing the current regulations, we will try to offer new food for thought to stimulate a debate that, even without pretending to provide suggestions to the Legislator, could be constructive.