The Supreme Court on suspension of efficacy of shareholders’ resolutions excluding a shareholder
| Insights
The Supreme Court, with ordinance no. 24939/2019, addressed the issue of the nature of the precautionary decision of suspension of a shareholders’ resolution on the exclusion of a shareholder from a limited partnership; and in particular, whether it has “anticipatory effects” of the future decision – which has a “constitutive” nature.
According to a first opinion, the suspension has an “anticipatory” nature and therefore, pursuant to Article 669-octies of the Italian Civil Procedure Code, it does not lose effectiveness if the merit judgment extinguishes.
According to a different opinion, the suspension of the effects of a shareholders’ resolution cannot be qualified as “anticipatory”, because it is intended to prevent that its execution determines factual or legal modifications that cannot be eliminated. In other words, having regard to “constitutive” decisions, the precautionary measure concerns the ruling consequential to such “constitutive” judgment, that can only determine the constitution of a right.
In light of the above, the Supreme Court observed that the purpose of the suspension of the exclusion resolution is to prevent the duration of the judgment from irreversibly affecting the position of the shareholder, should such status be then confirmed, allowing a “temporary” restoration of the relationship between the latter and the company.
Having regard to the case at hand, the Supreme Court ruled that the precautionary measure suspending the efficacy of a resolution that excludes a member of a limited partnership cannot have anticipatory content of the constitutive decision – which is the only decision that determines the conditions legitimizing the exclusion of a shareholder from the corporate structure – because it carries out an interim effectiveness corresponding with the content of the decision.
Therefore, the “constitutive” nature of the decision prevents the anticipation of the effects to become definitive pursuant to Article 669-octies paragraphs 6 and 8 of the Italian Civil Procedure Code.