In the present case, the Constitutional Court was called upon to assess the constitutional legitimacy of Article 2941, no. 7, of the Italian Civil Code, which provides for the suspension of prescription for legal entities and their administrators while on duty, with respect to actions for their liability.

In the proceedings before the referring court, the members of an unrecognized association brought an action in 2019 against the administrator for misappropriation occurring during his term in office, from 2004 to 2014. The administrator invoked prescription for acts predating 2009. In response, the members challenged the constitutionality of Article 2941, no. 7, c.c., insofar as it does not suspend prescription for actions against administrators of unrecognized associations.

At the outset, it should be noted that a constitutionally oriented interpretation, extending the provision’s scope beyond entities with legal personality, would not be admissible, since the list of causes for suspension is traditionally considered exhaustive.

The Court had previously addressed similar issues, declaring unconstitutional the provision insofar as it did not suspend prescrption for bringing actions against administrators of entities without legal personality, such as limited enterprises. In those cases, the Court reflected on the purpose of the suspension and the possibility of extending it, emphasizing that while the judge cannot create a new form of suspension, it is legitimate to address legislative omissions that conflict with constitutional principles, thereby necessitating a “corrective” judgment.

The rationale for the provision lies in the difficulty faced by members in detecting wrongful acts while the administrator remains on duty. The suspension ensures that prescription does not expire before members can become aware of irregularities committed by the management.

This purpose is unrelated to the entity’s legal personality, which matters primarily in relations with third parties. Indeed, the need for protection is even greater for unrecognized associations: unlike limited enterprises, these entities lack formal supervisory organs, and members do not possess comparable powers.

More broadly, legal scholarship generally accepts that rules applicable to recognized associations may also extend to unrecognized associations, unless the rationale of a specific provision depends on legal personality, which is a factor relevant mainly for third-party relations and irrelevant for actions against administrators.

In light of this, the Constitutional Court held that Article 2941, no. 7, c.c., is unconstitutional to the extent that it excludes unrecognized associations from the suspension of prescription. This ruling fills a gap in the right of defence under Article 24 of the Constitution, grants members of unrecognized associations the right to invoke the suspension, eliminates an unreasonable disparity compared to entities with legal personality, and strengthens member protection in line with the principles of equality and effective defence.

 

(Comment by Martina d'Onofrio)