On January 15, 2020, the Court of Rome issued a decision on the following topics:
- conditions and limits for a public company to derogate from the civil law rules applicable to the relevant type of company (e.g. limited liability company, joint stock company) provided under the Italian Civil Code;
- possibility of derogating from the provisions describing the rules for calculating the value of shares when exercising the right of withdrawal from a company.
A. Conditions and limits to derogate from the provisions of the Italian Civil Code
In the case in question the bylaws of a public company contained certain provisions on the criteria for determining the liquidation value of the share owned by a withdrawing shareholder, derogating from the criteria provided by the Italian Civil Code.
In particular, the Court of Rome stated that the provisions included in the bylaws of a public company regulated by special laws and incorporated to achieve a public-interest purpose (i.e. “società di diritto singolare”) may not derogate from the mandatory provisions set forth by the Italian Civil Code for the type of company chosen[1], unless otherwise provided by a special law in force on the date of implementation of that provision contained in the by-laws.
B. Calculation of the value of shares in case of withdrawal from the company
The Court ruled that the bylaws may not derogate from the criteria for determining the liquidation value of shares provided under Article 2437-ter of the Italian Civil Code without taking into account the fair market value of the shares, as provided by paragraph 2 of Article 2437-ter of the Italian Civil Code. Therefore, the reference contained in such by-laws to the nominal value of the shares as the only criteria for determining their liquidation value shall be considered void.
Therefore, the value of the shares shall be determined by considering their fair market value as provided under paragraph 2 of Article 2437-ter of the Italian Civil Code.
The decision of the Court of Rome is available at the following link:
[1] In the case at hand, the public company was a joint stock company (“società per azioni”).
