Limited liability company: may the shareholders directly call a shareholders’ meeting independently of the director’s behavior?

The issue arises from the text of article 2479, paragraphs 1 and 4, of the Italian Civil Code (“c.c.”) which, alternatively, attributes the power to call a shareholders’ meeting to both directors and to the shareholders which represent a particular percentage of the share capital. The text of the above-mentioned rule could give rise to uncertainties regarding the exercise of the shareholders’ right: may they call the shareholders’ meeting directly or may they ask the directors to do so?

The Courts and the academics usually state that the shareholders have the power to directly call a shareholders’ meeting. Such a solution should be more adherent with the main role that the legislator of the corporate reform gave to shareholders. Following this leaning, a further question – lastly faced by the company section of the Court of Milan with ruling n. 2253/2020 – divides the jurisprudential and academic world. Indeed, it is not completely clear whether the power of the shareholders to directly call a meeting requires or not the prior inertia of the directors to call such meeting.

The above-mentioned recent Milan’s Court ruling, in line with the past ruling of the same Court, clearly states that the shareholders may act directly also ” in the absence of a directors’ inertia“.

To argue its thesis, the Milan Court states that such a solution is perfectly in line with the normative provisions. Indeed, art. 2479 c.c. in providing S.r.l.’s shareholders power, does not refer to the inertia of the directors, as (differently) provided for S.p.A. by art. 2367 c.c.

It is interesting to point out that the Court considers the provisions of article 2479, paragraphs 1 and 4, c.c. a “mandatory legal rule of guarantee“. Indeed, the Court states that the above leaning is not undermined by the fact that the company’s By-laws requires that the meeting must be called by the directors. It remains understood that in any case the shareholders meeting, even if called by the shareholders, must comply with the rules of convocation provided for by the By-laws and the law in order to ensure that the convocation procedure is correctly followed.

Finally, the Judges clarify the meaning of ruling no. 10821/2016 issued by the Supreme Court regarding the shareholders’ power to directly call a shareholders meeting, whose short text has given rise to uncertainty about the principle of law therein expressed.

The Court of Milan specified that the case faced by the Supreme Court concretely involved the director’s inertia. Therefore, the fact that the Supreme Court disposed that it: “must be granted to the shareholder […] the possibility to call the shareholders meeting, in case of inertia of the directors […]” does not mean that such inertia must be a mandatory circumstance for legitimizing the shareholders’ right to call a shareholder meeting.