48 / 473
COMMERCIAL LAW
35
Even though Art. 192 TCC states that if the announcement is not
required the prescription period shall commence as of the registration, I
am of the opinion that this provision is not necessary. The TCC explicitly
states that merger and conversion decisions will be announced in the
TTRG. As I stated above in relation to the lawsuit regarding the protection
of shares and rights of shareholders, even though the provisions governing
spin-offs do not have such an explicit requirement, the spin-off decision
should also be announced, and therefore it should be accepted that the
two-year period commences as of the announcement. Nonetheless, there
are dissenting opinions on this issue among scholars.
A facilitated merger does not require a general assembly resolution,
as the decision may be adopted by the managing body. However even in
this case, pursuant to Art. 126/3, the decision of the managing body must
also be registered and announced. Thus, the prescription period should
commence as of the announcement.
The Effects of the Ruling
In the event the courts decide that the relevant merger, spin-off or
conversion decision should be annulled, this decision will retroactively
apply. Therefore, all consequences of the restructuring transaction will
be removed as if the transaction were not realized at all. Given both the
dissolution of companies and the continuation of the activities of the
merged, spun-off or converted company for the duration of the lawsuit,
it is apparent that the annulment will result in severe consequences.
Therefore, the TCC sustains the principle of preserving the validity of the
merger, spin-off and conversion transaction.
Pursuant to the TCC, if the contravention which forms the basis of
the annulment claim is due to a deficiency in the restructuring transaction,
the judge shall grant a cure period for the deficiency to be overcome. In
the event the deficiency is not or cannot be overcome in this time period,
then the judge may decide to annul the relevant decision. It is also stated
in the code that the courts shall adapt the necessary precautions. These
precautions shall serve to overcome the problems which may be caused
by the retroactive effect of the annulment decision.