Facts

Company A. SA found itself without an auditing body as of May 22, 2009. The Cantonal Commercial Registry Office (URC) therefore summoned it to restore the legal situation. After noting that the restoration had not been carried out within the set deadline, the URC approached the District Court of Lugano requesting the adoption of the "necessary measures" pursuant to Art. 731b CO.

The judge granted the company a 30-day deadline to appoint an auditing body, failing which the company would be dissolved. Subsequently, upon the company's request, an extension was granted until October 30, 2009. As this deadline also expired without success, on November 26, 2009, the judge declared the dissolution of the company and ordered its liquidation through bankruptcy proceedings.

Company A. SA appealed this judgment before the 2nd Civil Chamber of the Court of Appeal, submitting documents showing that in the meantime it had managed to restore the legal situation by appointing a new auditing office. However, the Court of Appeal was unable to take this subsequent event into account, in application of the prohibition of nova provided for in Art. 321 CPC/TI.

Considerations

The Federal Court held that the decision of the Court of Appeal to adhere to the prohibition of nova and not to take into account the restoration of the legal situation after the issuance of the first instance judgment is not in conflict with the intentions of the legislator and cannot be considered "not legitimized by any interest worthy of protection" to the point of constituting excessive formalism.

In fact, Art. 731b CO, which entered into force on January 1, 2008, has established a uniform regulation to sanction gaps concerning the organization of a company prescribed by law and to remedy them. The norm grants the judge a wide margin of discretion, which allows him to decide on the measures to be adopted according to his own assessment, depending on the circumstances of the specific case.

The forced liquidation according to the provisions applicable to bankruptcy, provided for in Art. 731b para. 1 no. 3 CO, corresponds to a precise will of the legislator, as practice has shown that…