With sentence no. 1450 of 27.4.2020, the Court of Turin intervened on the scope of art. 2476, paragraph 8 of the Italian Civil Code, which states that shareholders who have intentionally decided or authorized the performance of acts harmful to the company are “jointly and severally liable with the directors, pursuant to the preceding paragraphs”.
In line with the prevailing jurisprudence on the subject, that in order to recognize the existence of the requirement of intentionality required by the regulation it is necessary that there is, on the part of the shareholder, awareness of the unlawfulness of the act and this can be recognized when the act performed is contrary to the law or the deed of incorporation of the company or when the act, in itself lawful, is carried out in an abusive manner with a purpose that cannot be traced back to the practical purpose underlying the company’s contract, the Court of Turin deemed this condition to be met when it deferred the adoption of the measures set out in articles 2482-ter and 2487 of the Civil Code. 2482-ter and 2487 of the Italian Civil Code for over a year after approving the financial statements with a loss for the year that had completely eroded the share capital.
The recapitalization of the company or its liquidation in accordance with the provisions of articles 2482 ter and 2487 of the Italian Civil Code, in fact, were held by the Turin judges not to be “an option but a due act, given that the cited norms are clear in indicating that in the event of a reduction in capital below the legal minimum, a meeting must be convened for recapitalization or transformation operations or, once the director has declared the cause of dissolution, it is necessary to appoint liquidators in accordance with article 2487 of the Italian Civil Code”.
The repeated postponement of the decision on the adoption of the measures prescribed by law to deal with the serious situation created by the losses carried forward, allowing, on the contrary, the continuation of the activity and, therefore, the further worsening of the economic situation, led to the recognition of the prerequisites to recognize also the responsibility of the shareholders for the worsening of the company’s failure.