Last Updated June 21, 2019

Law and Practice

Authors



CMS Adonnino Ascoli & Cavasola Scamoni is unique in its composition, which combines extensive local and international expertise in order to assist clients with all types of cross-border issues. The Italian corporate team (with offices in Milan and Rome) comprises over 30 professionals and is best known for its knowledge leadership, especially in the energy, life sciences, automotive and media sectors. It has strength in mid-market deals, with a number of long-term clients in this area. Recent highlight deals include international transactions concerning Total, including assisting Total Marketing Services SA and ERG Spa with the sale of TotalERG Spa to API Spa (Anonima Petroli Italiana S.p.A) and providing assistance to Moneygram with respect to restructuring after Brexit. The firm also concluded several high-value deals in 2018, with clients including NMS Group, Telit, and Cuki. It covers all corporate-related practice areas.

SPAs

According to Article 2380-bis ICC, the ordinary and extraordinary management of the company is an exclusive and autonomous prerogative of the board of directors (or the sole director), as appointed by the shareholders’ meeting, with the exception of those matters that must be entrusted to the shareholders (see 3.2 Decisions Made by Particular Bodies, above).

Therefore, as a general principle, the shareholders cannot intervene directly into the management strategies. Nonetheless, a number of tools are granted to the shareholders with the purpose of monitoring and, in certain cases, intervening in the management of the company, such as the right to remove the directors at a shareholders’ meeting or to choose not to re-elect them when their mandate expires.

Moreover, Article 2367 ICC provides that shareholders representing a tenth of the share capital (or less, if provided by the bylaws), have the right to ask the directors to call a shareholders’ meeting with a specific agenda. In the event of the directors’ inertia, the controlling body shall call the meeting. Should the controlling body fail to call the meeting, the shareholders may ask a court to do it.

SRLs

Pursuant to Article 2475 ICC, the management of SRL companies is usually entrusted to the quotaholders, unless otherwise provided in the company’s bylaws.

The stronger involvement of the quotaholders in the management of the company is embodied by other provisions, such as the possibility to entrust quotaholders, with specific provision of the bylaws, with special rights relating to the administration of the company in accordance with Article 2468(3) ICC.

Furthermore, Article 2476 ICC provides that even the quotaholders who do not take part in the management of the company have the right to be informed by the directors of the trends of the business and to consult, including through trusted professionals, the company’s books and the documents relating to the management (such as of journals, minutes of the meetings of the corporate bodies, accounting reports, bank account statements, contracts and tax returns).

The Italian courts (both local and Supreme Court) have also held that, in relation the matters falling within their competence pursuant to Article 2479 ICC, quotaholders have the direct power to call the quotaholders’ meeting, notwithstanding different provisions of the bylaws and, in any case, without the need to resort to a court’s decision as it is for SPAs (see, ex multis, Italian Supreme Court, case no 10821 of 25 May 2016).

CMS Adonnino Ascoli & Cavasola Scamoni

Galleria Passarella 1
20122 Milan
Italy

+39 02 89 28 38 00

+39 02 48 01 29 14

daniela.murer@cms-aacs.com www.cms.law
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Authors



CMS Adonnino Ascoli & Cavasola Scamoni is unique in its composition, which combines extensive local and international expertise in order to assist clients with all types of cross-border issues. The Italian corporate team (with offices in Milan and Rome) comprises over 30 professionals and is best known for its knowledge leadership, especially in the energy, life sciences, automotive and media sectors. It has strength in mid-market deals, with a number of long-term clients in this area. Recent highlight deals include international transactions concerning Total, including assisting Total Marketing Services SA and ERG Spa with the sale of TotalERG Spa to API Spa (Anonima Petroli Italiana S.p.A) and providing assistance to Moneygram with respect to restructuring after Brexit. The firm also concluded several high-value deals in 2018, with clients including NMS Group, Telit, and Cuki. It covers all corporate-related practice areas.

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