Retrocession to the Client of the contracted company may mean a corporate transfer as per article 2112 of the Italian Civil Code

The Court of Cassation, with judgement No. 6770 of 15 March 2017, overturned the decision of the Court of Appeal of Rome establishing a contraris that, the retrocession to the Client company of the contracted services does not exclude the possibility that a corporate transfer may occur according to article 2112 of the Italian Civil Code. This would happen when such retrocession would imply a transfer of assets, including personnel, such to make possible the carrying out of a specific business activity. Supporting such assumption, the Cassation – in addition to drawing from its own principles originating from previous judgements it issued- recalled a number of rulings of the European Court of Justice where the judges had identified as an element necessary for the existence of a corporate transfer the fact that the economic entity in question would maintain its identity independently from the change of the effective owner and, therefore, from the instruments used for the succession in the underlying legal relationships. Therefore, in the case of a transfer of an organized group of assets from an entrepreneur to another, a corporate transfer will occur according to article 2112 of the Italian Civil Code inasmuch as the economic entity transferred – as a consequence of its transfer and independently of the legal instrument adopted – maintains its identity and is such to allow the continuation or the resumption of its management. This is valid also in the case when an organised group of assets is constituted solely by a group of employees.