Reconciling legal certainty in corporate divisions with respect for civil law remedies: Case C-394/18 I.G.I. Srl v. Maria Grazia Cicenia
| DOI | 10.1177/1023263X20942995 |
| Author | Montserrat Rodríguez Riu,David Ramos Muñoz |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| Subject Matter | Case Notes |
Case Note
Reconciling legal certainty in
corporate divisions with
respect for civil law remedies:
Case C-394/18 I.G.I. Srl v. Maria
Grazia Cicenia
David Ramos Mun
˜oz* and Montserrat Rodr´
ıguez Riu**
Abstract
On 30 January 2020, the Court of Justice of the European Union (CJEU) delivered its judg-
pretation of the Directive on corporate divisions in a case that fell outside its scope, and a
delicate balancing act between the need to protect legal certainty in corporate divisions, and
the need to respect Private Law remedies enshrined in domestic civil codes. The CJEU ruled
that the rules of the Sixth Council Directive 82/891/EEC did not preclude the creditors of a
company being divided from bringing an actio pauliana against the corporate division, in order
to obtain a declaration that the division does not have effects against them, nor did it pre-
clude them from bringing enforcement proceedings against the assets transferred to the newly
formed company.
Keywords
Company law, corporate divisions, creditor protection, actio pauliana, nullity, avoidance, fraud
* Carlos III University of Madrid, Spain
** Finance Law Department, Cuatrecasas Gonc¸alves Pereira, Carlos III University of Madrid, Spain
Corresponding author:
David Ramos Mun
˜oz, Carlos III University of Madrid, Spain.
E-mail: dramos@der-pr.uc3m.es
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(3) 358–378
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20942995
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1. Introduction
On 30 January 2020, the CJEU delivered its judgment in the Case C 394/18 I.G.I. Srl v. Maria
Grazia Cicenia et al.,
1
where it interpreted for the first time Articles 12 and 19 of the Sixth
Council Directive 82/891/EEC on the Division of Limited Liability Companies (‘Sixth Direc-
tive’).
2
The case opens an interesting chapter in the delicate relationship between EU Com-
pany Law and domestic Private Law. On one hand, harmonizing Company Law’s basic
elements is seen as a key step towards achieving the Single Market. This means achieving
a common position and understanding over the right balance between th e interests of the
different constituencies within a company. Directors, shareholders and creditors have different
interests, and tensions and conflicts are bound to happen. If different Member States’ laws
resolve the matter differently, this can give rise to legal uncertainty and hinder cross-border
activity. One alternative would be to let each Member State regulate the internal affairs of the
companies registered in their territory, and force all other Member States to uphold such
arrangements, even if the company has its ‘real seat’ within their territory, and t he Court of
Justice has developed a famous case law on this, based on the companies’ freedom of
establishment.
3
Yet, freedom of establishment and regulatory competition do not seem accep-
table as the only ground for a Single Market in companies, hence EU efforts to harmonize
Company Law, and enhance legal certainty over corporate transactions. Put together, like the
recent (partial) codification of European Company Law did,
4
shows how impressive the level
of harmonization is: matters ranging from incorporation and nullity to mergers and divisions,
and including the regime on capital, or disclosure of third-country branches are regulated by
EU-level rules.
5
Gradual codification enhances the sense of unity and ensemble of what were
originally separate initiatives, which responded to different projects and policy priorities into
the framework of the ‘General Programme for the abolition of restrictions on freedom of
1. Case C-394/18 I.G.I. Srl v Maria Grazia Cicenia and Others, EU:C:2020:56. For other commentaries on the case, see N.
de Luca, ‘Actio Pauliana and Divisions (I.G.I. v Cicenia, C-394/18): Not Everything That Is Done, Is Well Done’
European Company Law Journal (2020, forthcoming), and D. Ramos Mun
˜oz, ‘Analysis of ‘‘I.G.I v Maria Grazia
Cicenia’’’, EU Law Live (2020), https://eulawlive.com/analysis-of-i-g-i-v-maria-grazia-cicenia-by-david-ramos/.
2. Note that nowadays the Sixth Directive is no longer in force, but its content has been refunded with mere formal
amendments in Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to
certain aspects of company law.
¨berseering BV v
Nordic Construction Company Baumanagement GmbH (NCC), EU:C:2002:632; or Case C-167/01 Kamer van Koo-
phandel en Fabrieken voor Amsterdam v. Inspire Art Ltd, EU:C:2003:512; but see the nuances introduced by e.g. Case
C-210/06 Cartesio, EU:C:2008:723.
4. Directive (EU) 2017/1132. Other texts have not been subject to the codification, despite they regulate matters of
Company Law, such as Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the
exercise of certain rights of shareholders in listed companies (Shareholders’ Right Directive), Council Regulation (EC)
No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), and Council Directive 2001/86/EC of 8
October 2001 supplementing the Statute for a European company with regard to the involvement of employees
(respectively, Statute for a European Company Regulation (SE) and European Company Employee Involvement
Directive), to mention some, to which one must add the Company Law-related aspects harmonized in Securities Law
provisions, such as, e.g., Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on
takeover bids.
5. See Articles 3–12 (incorporation and nullity), 87–134 (mergers), 135–160 (divisions), 44–86 (capital) and 13–43
(disclosure and interconnection between registries).
Mun˜oz and Riu 359
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