Judgment;Abstract — ECLI:EU:C:2024:642
Date: 2024-07-29
Language of the case: Italian
Court formation: Grand Chamber
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-713/22 – 1 
Case C-713/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 November 2022 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
3 November 2022 
Appellant:  
LivaNova plc 
Respondents:  
Ministero dell’Economia e delle Finanze 
Ministero dell’Ambiente e della Tutela del Territorio e del Mare 
Presidenza del Consiglio dei ministri 
  
Subject matter of the main proceedings 
Capital companies – Partial division – Environmental damage – Joint and several 
liability 
Subject matter and legal basis of the request 
The question concerns the concept of ‘liability … not allocated by the draft terms 
of division’ in Article 3 of the Sixth Council Directive 82/891/EEC of 
17 December 1982, which is considered to be a parameter for examining the 
concept of ‘liabilities, the allocation of which cannot be inferred from the draft 
terms’, used in Article 2506-bis of the Codice Civile (Italian Civil Code), in order 
to ascertain the joint and several liability of a company that is the recipient in a 
partial division operation. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-713/22 
 
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Question referred for a preliminary ruling  
‘Does Article 3 of the Sixth Council Directive [82/891/EEC], which (under 
Article 22 thereof) is also applicable to a division by the formation of new 
companies – in so far as it provides that (a) ‘where a liability is not allocated by 
the draft terms of division and where the interpretation of these terms does not 
make a decision on its allocation possible, each of the recipient companies shall be 
jointly and severally liable for it’, and that (b) ‘Member States may provide that 
such joint and several liability be limited to the net assets allocated to each 
company’ – preclude an interpretation of the provision of national law in 
Article 2506-bis, third paragraph, of the Italian Civil Code according to which the 
joint and several liability of the recipient refers, in relation to ‘liabilities’ not 
allocated by the draft terms, not only to liabilities of a nature already determined, 
but also (i) to those identifiable in the harmful consequences, arising after the 
division, of conduct (by act or omission) occurring before the division itself or (ii) 
of subsequent conduct developing from it, which has an ongoing unlawful nature 
and causes environmental damage, the effects of which, at the time of the division, 
cannot yet be fully determined’. 
Provisions of European Union law relied on 
Article 3 of the Sixth Council Directive 82/891/EEC of 17 December 1982 based 
on Article 54(3)(g) of the Treaty, concerning the division of public limited 
liability companies 
Provisions of national law relied on 
Articles 2506-bis and 2506-quater of the Italian Civil Code 
Succinct presentation of the facts and procedure in the main proceedings 
1 Snia s.p.a. brought proceedings before the Tribunale di Milano (District Court, 
Milan, Italy) against Sorin s.p.a., now LivaNova PLC, and the respondent public 
authorities, seeking a declaration that Sorin was jointly and severally liable for all 
debts – relating to remediation costs and environmental damage – for which Snia 
was liable prior to the company division carried out on 13 May 2003, with effect 
from 2 January 2004, in which LivaNova was the recipient. 
2 The application for a declaration was related to the substantial claims for 
compensation brought by the Ministero dell’ambiente (Ministry for the 
Environment, Italy) against Snia in connection with the activity of producing and 
marketing chemical products carried out, through its subsidiary companies 
Caffaro and Caffaro Chimica, at three industrial sites (Brescia, Torviscosa and 
Colleferro). The application for a declaration was based on Article 2504-decies of 
the Italian Civil Code, in the version applicable at the time, in view of the fact that 
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the division operation, according to Snia, had resulted in the formation of the new 
company Sorin after the transfer to the latter of all shareholdings held in the 
biomedical sector. 
3 Snia argued that Sorin’s liability should be deemed to be unlimited, because the 
remediation costs and environmental damages, if established, should have been 
considered liabilities whose allocation could not be inferred from the draft terms 
of division. 
4 The respondent authorities requested that Sorin be ordered to pay compensation 
for damages jointly and severally with Snia. The District Court, Milan, rejected all 
the claims brought by the public authorities. The judgment was appealed by the 
Ministries and the Presidenza del Consiglio dei ministri (Presidency of the 
Council of Ministers, Italy). 
5 The Corte d’appello di Milano (Court of Appeal, Milan, Italy), in a non-final 
judgment in 2019, found that Snia and Sorin were jointly liable for the failure to 
carry out environmental remedial measures in relation to the three sites in 
question. It found that Sorin was liable in so far as the debts arising from the 
remediation costs and environmental damages constituted liabilities of Snia, 
which were known, but whose allocation could not be inferred from the draft 
terms. It held that the relevant legal framework was not the previous version of 
Article 2504-octies, third paragraph, of the Italian Civil Code, but the new 
Article 2506-bis, third paragraph, of the Italian Civil Code resulting from the 
company law reform (Decreto legislativo n. 6 del 2003 (Legislative Decree No 6 
of 2003)), since the division operation had taken effect, formally, on 2 January 
2004, the date on which the instrument of division was registered in the register of 
companies. It therefore recognised the effectiveness of the causal link between the 
activity carried out by Snia, and the companies related to it, and the pollution of 
the areas and therefore the liability of Snia as owner of the areas and 
establishments, direct manager and parent company of the subsidiary companies 
and companies acquired from time to time; it also established Sorin’s joint and 
several liability, limited to the assets transferred under the regime based on the 
new Article 2506-bis, third paragraph, of the Italian Civil Code. 
6 The Court of Appeal, Milan, in a final judgment in 2021 (the ‘judgment under 
appeal’), ordered LivaNova PLC, formerly Sorin s.p.a., within the limit of the 
assets transferred as a part of the corporate division, to reimburse the costs 
associated with the primary and compensatory remediation of the environmental 
damage caused by the activities of the companies related to the Snia Group at the 
three abovementioned sites, assessing them to be EUR 453 587 327.48 overall. 
The company LivaNova brought an appeal before the Corte suprema di cassazione 
(Supreme Court of Cassation, Italy). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-713/22 
 
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The essential arguments of the parties in the main proceedings 
7 Before the Supreme Court of Cassation the appellant alleges infringement of 
Articles 2506-bis and 2506-quater of the Italian Civil Code, to the extent that 
Sorin was also, erroneously, found liable for those damages caused by conduct (by 
omission or act) occurring after the division, in breach of the time limit imposed 
by the legislation in relation to the ‘liabilities’ or ‘debts’ already existing at the 
time of that division. The appellant criticises the judgment under appeal on the 
ground that it does not note the difference in the scope of application of the 
different rules, since Article 2506-bis of the Italian Civil Code focuses on 
‘liabilities’ whereas Article 2506-quater instead focuses on unpaid ‘debts’. 
8 According to the appellant, the distinction between the concepts should mean that 
the (accounting) notion of ‘debt’ includes only liabilities which are determined 
and which certainly exist, with a definite due date and amount, and which are not 
to be confused with ‘provisions’ for risks, charges and ‘commitments’, given that 
those – which constitute ‘liabilities’ – are relevant only for the separate purposes 
of Article 2506-bis of the Italian Civil Code. The appellant argues that, pursuant 
to Article 2506-bis of the Italian Civil Code, it is not possible to allocate to it, the 
recipient of the division, the damages caused by conduct (by omission or act) 
occurring after the division, in breach of the time limit laid down by the 
legislation in relation to the ‘liabilities’ or ‘debts’ already existing at the time of 
that division. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 According to the referring court it is necessary to determine whether the 
interpretation of the national provision (Article 2506-bis of the Italian Civil Code) 
is compatible with EU law, and in particular with the Sixth Directive 82/891/EEC. 
For this reason it appears necessary to make a reference to the Court of Justice of 
the European Union for a preliminary ruling pursuant to Article 267 TFEU. 
10 The question referred concerns, in particular, the concept of ‘liability … not 
allocated by the draft terms of division’ referred to in Article 3 of the 
abovementioned Sixth Directive 82/891/EEC, which is to be considered as a 
parameter for examining the concept of ‘liabilities, the allocation of which cannot 
be inferred from the draft terms’ under Article 2506-bis of the Italian Civil Code, 
for the purposes of determining the joint and several liability of the recipient of a 
partial division operation. 
11 It should be pointed out at the outset that, from a factual point of view, the Court 
of Appeal, Milan, established that there is a causal link between the activity 
carried out by Snia, and the companies related to it, and the pollution of the areas 
in question. 
12 In particular, it was established that Snia was liable, as owner of the areas and 
establishments, direct manager and parent company of the subsidiary companies 
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and companies acquired from time to time, for an intensive environmental 
exploitation activity that had lasted, across the three sites, for almost a century, 
with extremely serious consequences in terms of contamination and pollution. 
That liability was acknowledged by Snia itself. The judgment under appeal 
emphasised ‘the fact that the events and circumstances giving rise to Snia’s 
liability … certainly occurred prior to 13 May 2003’, in so far as it can be inferred 
from documentary evidence specifically mentioned, originating from its corporate 
bodies. The abovementioned liability refers to the harmful consequences of 
ongoing unlawfulness, which were likely to worsen over time. 
13 The appellant argued that it would be unlawful to find Sorin (now LivaNova) – as 
the recipient of the division – also liable for any worsening of the damage which 
occurs after the division. 
14 The Supreme Court of Cassation observes that this assertion is incomplete and in 
any event inconsistent, given that the worsening relates to the consequences of 
ongoing unlawfulness for which the company being divided may still be liable on 
the basis of conduct prior to the division. It is relevant in that regard that the 
continuation of conduct (by act or even only by omission) of Snia after January 
2004 was clearly described in the judgment under appeal as a mere development 
of the prior conduct which had been ongoing for years. 
15 From that point of view, the judgment determined the damages – for primary, 
complementary and compensatory remediation – on the established premiss that 
the pollution of all the areas had a causal link attributable, either directly or 
indirectly, to Snia’s activity, regardless of developments after January 2004. For 
all the areas there is a causal link between the specific industrial activity carried 
out by the companies related to the Snia group and the contamination present on 
site. It should be added that such a link was established in accordance with EU 
legislation on environmental damage referred to in Commission Notice 2021/C 
118/01 of 7 April 2021. The latter, with reference to the judgment of the Court of 
Justice in Case C-378/08, recognised ‘as for the causal link’ that, if the legislation 
of a Member State so provides, ‘a presumption, based on plausible evidence, is 
sufficient in order to establish the link’, which is capable of ‘justifying its 
presumption, such as the fact that the operator’s installation is located close to the 
pollution found and that there is a correlation between the pollutants identified and 
the substances used by the operator in connection with his activities’. That is 
precisely what is inferred from the judgment under appeal. 
– The company law issue 
16 The appellant argues that, pursuant to Article 2506-bis of the Italian Civil Code, it 
is not possible to find it, as the recipient of the division, liable for the damages 
caused by conduct (by omission or act) occurring after the division, in breach of 
the time limit laid down by the legislation in relation to the ‘liabilities’ or ‘debts’ 
already existing at the time of that division (see the arguments set out above in 
paragraphs 7 and 8). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-713/22 
 
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17 As regards the claim that it is also necessary for the purposes of joint and several 
liability to distinguish debts from liabilities, in the sense of understanding the 
provision as being intended to mean that the joint and several liability of the 
recipient covers only to the liabilities already determined prior to the division 
operation, the reply of the Supreme Court of Cassation is that, on the basis of the 
provision of national law, it is not necessary to do so. LivaNova’s assertion that it 
is necessary does not take into account the reasoning with which the Court of 
Appeal, Milan, established that there was a causal link between the activity 
attributable to Snia, and to the companies related to it from time to time, and the 
pollution of all three areas in question.  
18 With regard to the corporate division, for the purposes of potential joint and 
several liability, the compensatory debt arose prior to that division, since the 
damage clearly falls within the broader expression (‘liabilities’) used by the 
Italian legislator in Article 2506-bis of the Italian Civil Code. That expression 
does not imply any predetermined qualitative characteristic for the purposes of the 
potential allocation of the liabilities, since the liabilities may also take the form of 
debts, including debts that are separate from the assets that are being divided. 
19 What is decisive, therefore, for the purposes of interpreting the national provision, 
is that the court adjudicating on the substance found, in relation to Snia, that the 
conduct causing the environmental damage, had occurred prior to the division. 
That conduct establishes the scope of the liability for compensation for the 
corresponding ongoing unlawfulness. The relevant fact may consist in the 
infringement of any requirement relating to human activities which may result in a 
significant alteration or deterioration in the environment, inferable from all the 
rules of the legal system, which certainly include those relating to non-contractual 
civil unlawfulness and those relating to liability deriving from carrying out 
dangerous activities. Indeed, the very notion of environmental damage in Italian 
law covers all the consequences of the facts established, from definitive loss 
(which correlates to destruction) or deterioration (or qualitative worsening) of an 
environmental resource, to the alteration of the environment itself, consisting in 
the definitive modification of the ecological, biological and sociological balance 
of the territory with a visible modification of the existing assets.  
20 This interpretation of the provision of national law is, in the referring court’s 
view, preferable also on the basis of the rationale of creditor protection that 
underlies it. 
21 Moreover, the Court of Justice of the European Union itself, in its judgment of 
30 January 2020, I.G.I., C-394/18, EU:C:2020:56, examining, in relation to 
divisions of limited liability companies, the issue of the protection of the interests 
of creditors of the company being divided for the purposes of an action to set 
aside, explicitly acknowledged that the Sixth Directive 82/891/EEC requires, 
pursuant to recital 8 thereof, that ‘creditors, including debenture holders, and 
persons having other claims on the companies involved in a division, must be 
protected so that the division does not adversely affect their interests’. Thus, any 
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interpretation of the relevant provisions must ensure legal certainty as regards 
relations between the companies involved in the division, and between those 
companies and third parties. 
22 The interpretation of Article 2506-bis of the Italian Civil Code calls for an 
interpretation consistent with the corresponding wording of the version of the 
Sixth Directive 82/891/EEC applicable at the time of the facts in question. 
23 Article 3 of the Sixth Directive 82/891/EEC, which is applicable also to division 
by formation of new companies (under Article 22 thereof), contains the rule that 
‘where a liability is not allocated by the draft terms of division and where the 
interpretation of these terms does not make a decision on its allocation possible, 
each of the recipient companies shall be jointly and severally liable for it. Member 
States may provide that such joint and several liability be limited to the net assets 
allocated to each company’. This provision is in essence based on a similar 
concept to the one subsequently transposed in the national provision: ‘liabilities 
not allocated in the draft terms of division’. The fact that that wording is 
substantively equivalent means that this Court, as the court of last instance, is 
required to make, pursuant to Article 267 TFEU, the reference to the Court of 
Justice of the European Union for a preliminary ruling in order to check that there 
are no interpretative obstacles, in the Directive, to the abovementioned 
interpretation of the national provision. 
24 Given the particular importance of the subject matter of the case, in particular 
from an economic perspective, it is requested that the matter be examined by the 
Court of Justice as a matter of urgency.