Ordinary revocatory action and shareholders’ resolutions amending the bylaws of a joint-stock company

by Roberta Incorvaia, Filippo Grigolon

The Italian Supreme Court, with order No. 6384 of March 3, 2023, ruled on the admissibility of bringing an ordinary revocatory action against shareholders’ resolutions amending the bylaws of a joint-stock company, stating that such action cannot be brought against those acts, since they do not have any external effect on the general asset guarantee of the company.

The case
The case stems from the action brought by two company’s creditors against a joint-stock consortium company and its members in order to obtain a declaration of ineffectiveness, pursuant to Article 2901 of the Italian Civil Code, of the resolution amending the company’s bylaws adopted by the extraordinary shareholders’ meeting insofar as it had replaced the obligation on the part of the shareholders to reimburse “annually to the company, proportionally to their respective participations in the share capital, the expenses of its operation to the extent that these exceed the amount of revenues/income pertaining to the same financial year so that the financial year closes without losses,”  with the mere possibility of performing this act.

The Tribunal upheld the plaintiffs’ claim, arguing that this amendment to the bylaws resulted in an act of disposition of assets with an abdicative content, since it was a waiver of a company’s credit against the shareholders and, consequently, declared the resolution ineffective against the Bankruptcy. The adversely affected shareholders, after unsuccessfully appealing the judgment of the Tribunal, appealed it before the Italian Supreme Court.

The decision
Ruling on the appeal, the Italian Supreme Court dismissed the judgment of the Court of Appeals, enunciating the principle of law that "The revocatory action pursuant to  Articles 2901 et seq. of the Italian Civil Code cannot be exercised against intra-company’s act acts carried out by joint-stock companies, including consortia, represented by resolutions amending the bylaws, such acts not having external effects in terms of affecting the general patrimonial guarantee, but rather being carried out solely for the management of the activity of the legal entity, and subsisting, moreover, in the corporate regulations specific instruments that preside over their legitimacy, while the revocatory action is nevertheless exercisable against the external acts of the aforementioned legally personalized companies." 

In examining the issue and excluding the subjection to the ordinary revocatory action of resolutions modifying clauses in the bylaws, the Italian Supreme Court pointed out how the internal organizational nature, with only indirect external effects of the resolutions modifying the bylaws, on the one hand, and the “screen” posed by the legal personality attributed to the company, on the other hand, prevent such acts from being “attacked” by parties external to the company, except for specific exceptions provided for by the Italian legislator such as, for example, the possibility for creditors to file an opposition to merger, demerger and reduction of share capital transactions, or to challenge the resolution for nullity under Articles 2379 and 2379-ter Civil Code.

The Italian Supreme Court thus ruled out the possibility of bringing an action under Article 2901 of the Civil Code against a resolution amending the bylaws, since it is an intra-company act.