ITALY Trends and Developments Contributed by: Michele Massironi, Maria Giulia Furlanetto, Fabio Dalmasso and Riccardo Siligardi, La Scala S.t.a.p.a.
The direction of the Council of Florence pointed out that the hypothesis of consensual withdrawal has the advantage of allowing the shareholders to freely negotiate the amount of the liquidation of the withdrawing shareholder, thus avoiding the requirements provided for by Article 2473 of the Italian Civil Code (ie, the liquidation amount calculated as the interest’s fair market value). Since consensual withdrawal does not represent a typical form of withdrawal from the company but rather a sort of “concession” in favour of a single shareholder entitling its right to disinvest, the company may negotiate the amount of the interest’s liquidation with the withdrawing share - holder. However, to this purpose, it has to be remembered that unanimous consent is firmly required because this represents a case of “par- tial mutual dissent” subject to the general prin - ciple set forth in Article 1372 of the Italian Civil Code. This was then confirmed by the Notary Council of the Tre Venezie, (ie, the Notary Council related to the Veneto, Friuli-Venezia Giulia and Trentino- Alto Adige regions) with principle I. H 21, entitled “Limits to clauses determining the liquidation value in the event of withdrawal for conventional causes” , which states: “It is legitimate that even-
tual clauses allowing the withdrawal for causes different from the legal ones determine the liq - uidation value of the withdrawing shareholder’s interest in a lower amount than that which would result by applying the legal criteria provided for in Article 2473 of the Italian Civil Code. In such case, the lower liquidation value obtained by the shareholder essentially fulfils the function of the consideration for the right of withdrawal gener- ally allowed by Article 1373, paragraph 3 of the Italian Civil Code.” Finally, it has to be noted that if the free reserves are not sufficient, the share capital shall be reduced and Article 2482 of the Italian Civil Code shall be applied in order to protect poten - tial company creditors. Consequently, a resolu - tion adopting the share capital decrease may be executed 90 days after the date of its enrolment in the Companies’ Register if none of the com - pany’s creditors have made an opposition in the meantime.
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