The shareholder’s withdrawal right in joint-stock companies in the event of an amendment to the corporate purpose

With judgment no. 5404 of September 15, 2025, the Court of Appeal of Rome, specialized section for business matters, pointed out that the right of withdrawal pursuant to Article 2437, paragraph 1, letter a) of the Italian Civil Code may be exercised by the shareholders of a joint-stock company who did not concur in the adoption of a resolution amending the corporate purpose only where such amendment is capable of radically altering the risk profile and the economic convenience of their investment.

In this regard, the transfer of part of the business of the company does not, in itself, give rise to a right of withdrawal upon the shareholders unless such transaction entails a significant modification of the company’s business activity.

The case

The dispute originated from an action brought by several shareholders of a cooperative joint-stock company operating in the banking sector. They acted against the company in order to obtain a declaration confirming the validity and effectiveness of the withdrawal they had exercised following the company’s transfer of part of its business. The Board of Directors had executed such a transfer after having obtained a favourable – though merely consultative – opinion from the shareholders’ meeting.

In the first‑instance proceedings before the Court of Rome, the judge rejected the claim, considering that the conditions set forth under Article 2437, paragraph 1, letter a), of the Italian Civil Code were not met, as no shareholders' resolution formally amending the corporate purpose had been adopted by the company.

The shareholders appealed the judgment, arguing that the transfer of part of the business and the consequent internal reorganization had produced a substantial alteration of the company's structure, thereby affecting the company’s original economic plan and therefore originating the withdrawal right pursuant to Article 2437, paragraph 1, letter a), of the Italian Civil Code.

The decision

The Court of Appeal of Rome dismissed the appeal, deeming the complaint unfounded.

First, the Court concluded that the approach of the first‑instance judge, according to which the absence of a shareholders’ resolution amending the corporate purpose would be sufficient to exclude the conditions for withdrawal, was not persuasive. The Court instead endorsed a substantive assessment aimed at determining whether the transfer of part of the business of the company had produced an essential modification of its corporate purpose.

The Court clarified that the right of withdrawal concerns a delicate balance between different and opposing interests: those of each shareholder, who should not be exposed to radically altered risk conditions in relation to its investment, and those of the creditors of the company, who legitimately rely on the stability of the company’s share capital.

Specifically, the Court observed that the transfer of part of the business executed by the Board of Directors had not in fact altered the corporate purpose: the company continued to carry out the same banking activity as before, even if through a reduced number of branches subject of the transfer of the business. The judge therefore excluded the existence of the right of withdrawal, since such a transaction did not appreciably change the company’s risk profile nor the shareholders’ assessment of the economic convenience of their investment.

Finally, the Court noted that, following the transaction, the company did not assume the structure of a holding, a case that might have justified the existence of a withdrawal right, but continued to operate as a banking enterprise.