With judgment no. 30133/2025, the Court of Cassation clarified that, for the purposes of applying Art. 2437, paragraph 1, of the Italian Civil Code, which recognizes the right of withdrawal for shareholders of joint-stock companies (S.p.A.) who did not take part in the resolutions provided therein, the notion of “participation” cannot be understood in a strictly formal sense, i.e., limited to the mere expression of a dissenting vote, abstention, or absence from the meeting.
According to the Court, when a shareholders’ resolution represents the concluding moment of an articulated and complex operation, composed of a plurality of acts linked to each other from a functional and causal perspective, the trial judge is required to evaluate the shareholder’s participation by considering the entire operation. In particular, it is necessary to verify whether the acts preceding the resolution are attributable to a unified plan, the outcome of which was already defined and knowable by the shareholder from the initial stages.
In this interpretative perspective, the court attributes significance to the different wording of paragraphs 1 and 2 of Art. 2437 of the Italian Civil Code:
- the first paragraph, relating to non-derogable grounds for withdrawal, refers to “participation in resolutions,” an expression suitable to include conduct prior to the assembly’s decision,
- the second paragraph, concerning derogable grounds, mentions instead “participation in the approval of resolutions,” thereby limiting the inquiry to conduct manifested during the shareholders’ meeting.
By virtue of this, the following legal principles were affirmed: “In the matter of capital companies, the provision of Art. 2437, paragraph 1, of the Civil Code, as amended by Legislative Decree no. 6 of 2003, (…), must be understood as referring both to the case in which the assembly “resolution” constituted an event considered in itself, i.e., a specific point in time occurring at a precise historical moment, and to the hypothesis in which the same “resolution” constituted the final act of a more complex operation, composed of a series of facts and/or events occurring over time, but inseparably and causally linked to each other in the sense that each constitutes the necessary precedent for the transition to the next until reaching, precisely, the final resolution whose object constitutes the outcome, known from the outset by the shareholders, that the complex operation was intended to achieve“;
“in the matter of joint-stock companies, whenever the assembly “resolution” referred to in Art. 2437, paragraph 1, of the Civil Code, as amended by Legislative Decree no. 6 of 2003, has constituted an event considered in itself, (…), the right of withdrawal referred to in the cited provision shall belong to the absent shareholders at the meeting that adopted the resolution and to those present but dissenting or abstaining. Where, instead, the same “resolution” has constituted the final act of a more complex operation, composed of a series of facts and/or events occurring over time, but inseparably and causally linked to each other in the sense that each constitutes the necessary precedent for the transition to the next until reaching, precisely, the final resolution whose object constitutes the outcome, known from the outset by the shareholders, that the complex operation was intended to achieve, the consent manifested by a shareholder to one of the aforementioned facts and/or events precludes the arising, for that same shareholder, of the aforementioned right of withdrawal “.
In conclusion, having taken part in a complex operation (e.g., a corporate acquisition or merger) and having manifested consent to its execution, precludes the possibility for the shareholder to subsequently exercise the right of withdrawal in relation to a resolution constituting the final act of the operation.