Statutory clause on the exclusion of a quotaholder of a limited liability company (S.r.l.)
The Court of Rome, Specialized section in business matters, by judgment no. 19179 of December 29, 2022, ruled in the context of a proceeding concerning the challenge of a shareholders’ resolution by which the quotaholders resolved, inter alia, to amend the articles of association by introducing specific cases of exclusion of a quotaholder for just cause under Article 2473-bis of the Italian Civil Code.
In particular, the Court highlighted the peculiarities under Article 2473-bis of the Civil Code, which allows limited liability companies to provide, in the articles of association, specific cases of exclusion of a quotaholder for just cause, further emphasizing the personalistic nature of the corporate type under examination.
The case
P. S.r.l. with sole quotaholder (“P. S.r.l.”), I.P. S.r.l., and N.C. S.r.l. held respectively 40%, 20%, and 40% of the share capital of I.F. S.r.l. (the “Company”).
By resolution of the extraordinary quotaholders’ meeting held on 4 August 2020 (the “Resolution”), the quotaholders I.P. S.r.l. and N.C. S.r.l. (jointly representing 60% of the share capital) resolved to amend Article 25 of the articles of association by introducing the following cases of exclusion: a) bankruptcy of the quotaholder; b) exercise by the quotaholder, either personally or on behalf of third parties, of an activity competing with that of the Company, without the consent of the other quotaholders, following the introduction of said clause; c) change in the shareholding structure of the quotaholder, when the same is a company, without the consent of the other quotaholders of the Company; d) breach by the quotaholder of obligations undertaken towards the Company or other quotaholders, functional to the pursuit of the corporate purpose as resulting from the articles of association, in a privately signed deed that is either authenticated or not denied.
The Resolution was adopted with the dissenting vote of the quotaholder P. S.r.l., which challenged its content, raising, inter alia, issues of unlawfulness and nullity regarding the causes for exclusion introduced.
For this reason, P. S.r.l. brought an action before the Court of Milan, applying for the annulment of the Resolution, with a request for its suspension due to its manifest unlawfulness.
The decision
The Court of Rome, Specialized section in business matters, by judgment no. 19179 of December 29, 2022, clarified that, the clauses of exclusion, in order to be included in the articles of association of the company, shall meet the following cumulative requirements: (i) specificity and (ii) just cause.
In particular, the Court of Rome explained that:
- (i) the requirement of specificity involves the necessary definition of the circumstances which, affecting the continuation of the corporate bond, allow the exclusion of the quotaholder from the Company. Therefore, all clauses introducing generic “serious breaches by the quotaholder”, without specifically indicating the types of conduct that affect the corporate relationship to such an extent as to justify the exclusion of the quotaholder, are unlawful;
- (ii) the requirement of “just cause” entails the need to establish in the articles of association which events, as previously set, are considered by the Company as seriously disruptive, such as to justify the removal of a quotaholder, in order to ensure the correct development of the corporate activity. It is therefore a “subjective” just cause, specific to a given community that determines it, and which may not be applicable or generalizable outside such community.
For these reasons, the Court of Milan rejected the claimant’s request, considering that the requirements of specificity and just cause were met in the cases of exclusion described above.