ITALY Trends and Developments Contributed by: Michele Massironi, Maria Giulia Furlanetto, Fabio Dalmasso and Riccardo Siligardi, La Scala S.t.a.p.a.
Furthermore, the Supreme Court ruled that the Russian roulette clause does not represent a prohibited patto leonino (Article 2265 of the Ital - ian Civil Code), because this mechanism does not entail the exclusion of one or more share - holders from involvement in the company’s prof - its or losses because of the merely contingent operation of the clause, since it requires the occurrence of a deadlock event and the deci - sion of a party to trigger the clause. Finally, the Supreme Court held that a fair inter - est price may not be guaranteed if the clause is included in a shareholders’ agreement rather than in the by-laws of the company. Indeed, as a general rule, the parties are free to determine the price of the interest when they are negotiat - ing an agreement. More recently, on 23 February 2024, within a case involving two famous artists who were the shareholders of a company engaged in the production and broadcasting of a very popular podcast in Italy, the Russian roulette mechanism was applied by the Court of Milan, which granted an interim measure to guarantee the provision - al enforcement of a triggered Russian roulette clause, thus confirming that such clause is valid and enforceable under Italian law. Consensual withdrawal in limited companies Another issue that has been the focus of oppos - ing directions (specifically, in the context of notarial doctrine) is the “consensual withdrawal” of a shareholder in limited companies. A particular question was whether a shareholder could withdraw from a company with the con - sent of the other shareholders, in absence of the requirements provided for by the law or by the company’s by-laws entitling the right of exit. Clearly, the applicable case is in the event that
such shareholder is not able to find a purchaser of its interest. According to the Notary Council of Rome (princi - ple no 6/2016), this would be prevented, as “pur- suant to the law governing limited companies, there are no hypotheses of withdrawal other than the ones provided by the law or by the compa- ny’s deed of incorporation/by-laws (therefore, it is not given even in the abstract to reason about the so-called una tantum withdrawal)” . Nevertheless, this direction appears to be in the minority if it is considered, for instance, that both the Notary Council of Florence (principle no 53/2015) and the Notary National Council (Business question no 47-2012/I, Exercise of withdrawal right in an inadequate limited liabil - ity company) considered it viable that, under a resolution passed unanimously, the sharehold - ers may allow the liquidation of a shareholder’s interest by means of free reserves or, alterna- tively, by means of a correspondent decrease of the share capital even if none of the legal or conventional causes of withdrawal occurs. Assonime (the Italian association of joint-stock companies) has also recently endorsed such direction, which therefore seems to be the pre - vailing principle, with case no 3/2024. It is also interesting to consider that the liquida - tion of a withdrawing shareholder’s interest may take place either in cash or in kind, through the transfer of a company’s asset, within the limits of the free reserves. The above principle issued by the Notary Council of Florence reads as follows: “The quotaholders of a limited liability company may allow the liquidation of one of them with cash or corporate assets (so-called ‘consensu- al’ withdrawal), even if no legal or conventional cause of withdrawal has arisen.”
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