In Judgment No. 2629 of Jan. 29, 2024, the Supreme Court ruled for the first time on the validity of the Articles of association clause, granting shareholders the right to withdraw ad nutum from fixed-term SPAs (i.e. “limited by shares companies”), whose shares are not listed on a regulated market.
The judgment, after summarizing the main cases of withdrawal from limited by shares companies, covered by Article 2437 of the Civil Code, focuses on the interpretation of the fourth paragraph of such article, according to which “The bylaws of companies that do not rely on venture capital market may set forth additional causes for withdrawal.”
In the case brought to the Supreme Court, indeed, the bylaws of the company, which had been established for a fixed term, provided for the right of shareholders to withdraw with at least 180 days’ notice, even though Article 2437(3) of the Civil Code grants such a right only in companies established for an unlimited term.
In this regard, the Court, first, points out that the rule under review does not ask for the additional cases of withdrawal to be specifically indicated, nor does it necessarily require them to be aimed at protecting the shareholder who disagrees with specific decisions of the majority of shareholders. Namely, the Court holds that the overall logic of withdrawal provisions protects the shareholder’s right to disinvest from the economic enterprise, whenever he or she deems such participation to be no longer convenient.
Criticisms raised on such interpretation, based on the risk that the company loses its share capital, miss the mark, according to the Court.
Indeed, on one hand, the Court remarks that, according to present regulation, protection of share capital is not of determinant relevance with respect to the issue at hand; on the other hand, it also notes that the procedure for the liquidation of the withdrawing shareholder entails the reduction of share capital only if it is not possible to place his or her shares with other shareholders, with third parties or by the company’s purchasing of treasury shares with the available reserves.
In any case, the Court points out that it is always possible to inspect that the withdrawal is made in accordance with the general clause of good faith, i.e., is not made merely for the purpose of damaging the company.
To sum up, according to the ruling under review, a clause in the bylaws, allowing a shareholder to withdraw at his or her own will, is legitimate, even for fixed-term companies which do not rely on venture capital, provided that the general clause of good faith and a reasonable notice are respected.
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