Article 2497 of the Civil Code sets out that companies which provide direction to coordinate their subsidiaries are directly liable to the subsidiaries' minority shareholders for any damages caused to profitability and shareholding value by a violation of fair management principles. In this context, a recent Supreme Court of Cassation decision examined how to assess whether a corporate group exists and the scope of controlling entities' direction and coordination activities.
The Supreme Court of Cassation recently held that the postponement of loan reimbursements to company partners or shareholders applies not only in cases of court-assessed insolvency, but also if a company experiences temporary financial difficulties. The court also found that company management must refuse to reimburse loans to partners or shareholders if the company was experiencing financial difficulties when the loan was granted or the reimbursement was requested.
In a recent decision, the Supreme Court of Cassation stated that the revocation of members of a controlled company's board of directors due to the transfer of the majority shareholdings to a third party does not constitute just cause for a director's revocation. Consequently, a change in control of a holding company does not breach the duty of trust between the company and its board members.
Italian corporate law establishes the liability of members of the board of directors of joint stock companies depending on whether they are chief executive officers or executive directors or independent and non-executive directors. Recent Supreme Court of Cassation and Milan Court of Appeal decisions focused on the liability of non-executive directors by affirming that they must be proactive and fulfil their duty to be as informed as possible to ensure a suitable standard of corporate governance.
The Civil Code sets out specific rules which apply in the event that a chief executive officer (CEO) or director has extra-company interests. In the event that such a conflict of interests affects the position of a managing director, they cannot vote in the relevant board of director's resolution on the subject of the conflict. A recent Supreme Court of Cassation Decision has emphasised the duties of transparency and fairness to which company directors and CEOs in Italy must adhere.
The Supreme Court of Cassation recently examined the admissibility of a put option clause in a shareholders' agreement of a joint stock company by which one shareholder was committed to indemnify the other shareholders from any losses arising from payments to the company for stock capital contributions or other payments having a similar effect. The court's decision confirms that Italian company law admits shareholder agreement clauses in line with the international principles of lex mercatoria.
The rules concerning the corporate governance of limited liability companies were recently amended. The changes are twofold: some directly affect the bylaws of limited liability companies, while others affect the requirements for appointing professionals who perform auditing and supervisory duties for such companies. The new provisions must be adopted immediately by newly formed companies, whereas pre-existing companies must update their bylaws by 16 December 2019.
Italian company law contains specific provisions for shareholders' agreements relating to listed or non-listed companies. Two recent court decisions provide clarity in this regard and confirm that the existing legal framework broadly recognises the admissibility of shareholders' agreements in order to govern the rights and obligations of company shareholders, particularly for joint ventures in the financial, trade and industrial fields.