Withdrawal right excluded if the shareholder contributed in a complex transaction
With judgment no. 30133 of November 14, 2025, the Italian Supreme Court (Corte di Cassazione) established that, in joint-stock companies, the withdrawal right provided for under Article 2437, paragraph 1 of the Italian Civil Code does not apply to the shareholder, in case the shareholders’ resolution on which it is based constitutes the final step of a complex transaction, structured as a series of facts and/or events that are inseparably and causally connected to one another and aimed at achieving a final result known to the shareholder since the beginning, if such shareholder has expressed consent to even any of the above-mentioned facts and/or events.
The case
On January 29, 2012, Alfa S.p.A. and Beta S.p.A. entered into an investment agreement intended to solve the financial distress affecting the corporate group of which Alfa S.p.A. was the holding company. The investment agreement provided, first, for an equity strengthening of the “Alfa S.p.A. Group”, to be carried out through a capital increase of Alfa S.p.A. and Gamma S.p.A. (a company directly controlled by Alfa S.p.A.).
Such capital increase was reserved for Beta S.p.A., which undertook to subscribe it through a substantial cash contribution, thereby becoming the majority shareholder of Alfa S.p.A.. Once the capital increase was completed, the investment agreement provided for a corporate reorganisation to be implemented through the merger by incorporation of the companies Alfa S.p.A., Beta S.p.A., and Delta S.p.A. (a company directly controlled by Gamma S.p.A.) into Gamma S.p.A.
Some Alfa S.p.A. shareholders – who were all related directly or indirectly to the same family group that previously had the control over Alfa S.p.A. – had initially played a decisive role, through a series of acts and conduct, in the adoption by Alfa S.p.A. and its subsidiaries of all resolutions necessary to execute and perform the provisions of the investment agreement. However, once the capital increase reserved to Beta S.p.A. was approved and the recapitalisation of Alfa S.p.A. and Gamma S.p.A. was completed, these shareholders did not attend the shareholders’ meeting of Alfa S.p.A. that resolved upon the reverse merger into Gamma S.p.A.. After the adoption of the merger resolution by Alfa S.p.A., the absent shareholders submitted to the company a notice communicating the exercise of the withdrawal right.
In light of this, Alfa S.p.A. and Beta S.p.A. brought an action before the Court of Bologna, requesting the withdrawal right to be declared unlawful, on the ground that the withdrawing shareholders had contributed to the merger resolution by having performed, directly or indirectly, multiple acts causing the resolution itself. The Court of first instance ruled in favour of the claimants, acknowledging the substantial contribution of the withdrawing shareholders to the merger transaction, as they had approved the capital increase of Alfa S.p.A., which was an essential and inseparable preliminary step to the merger.
As the Court of Appeal of Bologna confirmed the first instance decision, the withdrawing shareholders appealed it to the Italian Supreme Court, seeking a declaration of the validity of their withdrawal.
The decision
The Italian Supreme Court, in line with the decisions of the first and second instance courts, ruled that for the purposes of Article 2437, paragraph 1 of the Italian Civil Code – which entitles the withdrawal right to shareholders who “did not participate in the resolutions” referred to therein – the notion of “participation” cannot be interpreted in a merely formal sense, as simple opposition, abstention, or absence from the shareholders’ meeting.
According to the Italian Supreme Court, in fact, if the resolution constitutes the final step of a complex transaction structured through a series of decisions inseparably and causally connected to one another, the judge, in assessing whether the shareholder “participated”, shall consider the transaction as a whole and determine whether the individual acts preceding the shareholders’ meeting are aimed at implementing a unified project whose final outcome is already identified and known to the shareholder from the beginning.
Applying these principles to the case at hand, the Italian Supreme Court dismissed the appeal as the appellants had voted in favour of and approved the capital increase reserved to Beta S.p.A., which constituted an essential and decisive preliminary step in the entire merger transaction. They therefore substantially participated in the merger, notwithstanding their abstention at the final shareholders’ meeting.