Exiting perpetual LLC
| Insights
With regard to the withdrawal of a shareholder from a LLC, the Italian Civil Code does not identify the moment of effectiveness of the exit and its consequent effects, without prejudice to the problem of the status socii following the declaration of withdrawal and the rights of exiting shareholder before the reimbursement of its quota.
On this point, the consolidated orientation of the jurisprudence on the merits and legitimacy argues that the right of withdrawal should be qualified as a unilateral act effective from the receipt of the communication, with the consequent loss of the quality of shareholder and all rights arising from this quality, from the moment when the relevant communication reaches the company. From that moment, therefore, the corporate relationship must be considered dissolved and the exiting shareholder assumes the role of a creditor, with the specification that these effects must be considered conditional on the revocation of the decision legitimizing the withdrawal by the shareholders, or the decision to dissolve the entity.
Without prejudice to the above considerations, it should be taken into account that, unlike the other cases of withdrawal provided by law, in case of withdrawal ad nutum from a perpetual LLC, there is no decision with respect to which a shareholder intends to react by exiting the company, inducing the majority to reconsider its positions. With the withdrawal ad nutum, rather, the Legislator intends to grant to each of the shareholders of perpetual LLC the right to exit the company.
That is why in case of ad nutum withdrawal, the period of 180 days for the reimbursement of the quota starts not from the date of receipt of the notice of withdrawal, but from the moment in which it becomes effective. This interpretation of article 2473, paragraph 4, of the Italian Civil Code is given by the Court of Bologna in its ruling of 18 March 2019.