The revocation of the shareholders’ meeting resolution legitimising the withdrawal of a shareholder in a joint-stock company
The Italian Supreme Court of Cassation, Section I, with judgment no. 15087 of 5 June 2025, ruled on the effectiveness of the withdrawal right exercised by any shareholder of joint-stock companies, reaffirming that withdrawal constitutes a unilateral deed subject to the resolutive condition consisting alternatively of the occurrence, within 90 days, of the revocation of the resolution that legitimises it or the dissolution of the company, pursuant to Article 2437-bis, paragraph 3, of the Italian Civil Code. As a result of the revocation of the resolution or the adoption of the dissolution resolution, the withdrawing shareholder regains, ex tunc, the status of shareholder and therefore the right to challenge the resolution that had given rise to the exercise of its right of withdrawal.
The case
The dispute originated from some amendments to the company’s bylaws approved by the shareholders’ meeting of a joint-stock company regarding the participation rights of the shareholders in the company.
Following the shareholders’ meeting resolution approving the amendment of the bylaws, one of the shareholders, who had not participated in the adoption of such shareholders’ meeting resolution, exercised the right of withdrawal for a part of its shareholding in the company; subsequently, however, the shareholders’ meeting resolved to revoke the resolution that had given rise to the right of withdrawal. Then, the shareholders who exercised their right of withdrawal challenged the shareholders’ meeting resolution revoking the previous shareholders’ meeting resolution before the court of first instance.
The Court of Macerata ruled in favour of the withdrawing shareholder, but the decision was overturned by the Court of Appeal of Macerata. The second instance court, in fact, deemed the appellant shareholder to lack standing to sue, as due to its partial withdrawal, its shareholding had fallen below the 5% of the share capital, the minimum percentage for the action referred to in Article 2377, paragraph 3, of the Italian Civil Code.
The shareholder challenged the judgment of the Court of Appeal of Macerata before the Italian Supreme Court, arguing that the judges had erroneously failed to consider that, as a result of the revocation of the shareholders’ meeting resolution giving rise to the right of withdrawal, the shareholder’s withdrawal had become ineffective.
The decision
The Italian Supreme Court of Cassation, in contrast with the Court of Appeal’s ruling, specified that the resolution of the shareholders’ meeting of the company upon the revocation of the previous shareholders’ meeting resolution or the dissolution of the company, adopted within ninety days, acts as a condition for the termination, ex tunc, of the effects of the withdrawal that have occurred in the meantime.
Once such a resolution of the shareholders’ meeting has been adopted, the shareholder retroactively regains all the corporate rights connected with its shareholding in relation to which it had exercised its right of withdrawal. Consequently, it becomes entitled to challenge the shareholders’ meeting resolution revoking the previous one, which had led to the withdrawal, since it has regained its corporate rights.
In support of this statement, the Italian Supreme Court noted that, based on the provisions of the Italian Civil Code and a long-established case law, the withdrawal constitutes a unilateral deed that becomes effective when it is received by the company.
The immediate effectiveness of the withdrawal notice serves a specific rationale, namely, to prevent the inefficiencies and potential disruptions that could arise from the continued involvement in the company’s affairs of a shareholder who has clearly manifested its intention to exit the company.
Finally, the Supreme Court held that a shareholder who exercises the withdrawal from a company loses all financial and governance rights attached to the shares in respect of which the withdrawal is exercised, from the moment the withdrawal notice is received by the company, without prejudice to their retroactive restoration in the event of revocation of the shareholders’ resolution giving rise to the withdrawal or the adoption of a resolution for the dissolution of the company.