In a 1 April 2019 decision, the Court of Rome Companies Tribunal set out an important principle concerning shareholders' rights regarding certain company decisions.
The court granted an interim measure and consequently declared ineffective the resolution of a company's shareholders' meeting upon the request of a shareholder who claimed that the company's board of directors had failed to provide the shareholders with documents connected to a framework agreement relating to a merger operation which would lead to a change of control over the company and the assumption of considerable financial obligations.
The court held that Article 2380 bis of the Civil Code states that a company's management must be exclusively carried out by its board of directors, which must perform the company's operations to duly fulfil its purpose.
However, some resolutions must be reserved for shareholders, such as those which will lead to material change in the company's scope or have a significant impact on the risks initially accepted by the shareholders.
The court based its decision on:
- Article 2361 of the Civil Code, which prevents the purchase of third-party shareholdings in the event that the company's scope is materially modified; and
- Article 2204 of the Civil Code, which prohibits company attorneys from managing another company, disregarding the entrepeneur's instructions.
The court argued that even if shareholders' right to inspect a company's books are limited to the shareholders' book and the shareholders' meeting book, pursuant to Article 2422 of the Civil Code, such limitation does not apply to a company's documents which may have a significant impact on the company's structure or organisation and are outside the board of directors' management competence. This constitutes the so-called 'operation of primordial interest', for which shareholders have sole competence. In such a case, any shareholder has the right to consult the company's relevant documents.
