CRITERION OF INTERPRETATION OF CORPORATE BYLAWS
The clause of a public limited company’s bylaws requiring a wide majority for the resolution having as object the issues concerning certain matters is aimed at protecting minorities in order to allow the latter to have the opposition power to preserve the balance existing inside the company. Therefore, an interpretation of this clause which allows its amendment through a most limited majority seems contradictory, in the light of the good faith criterion and on the basis of the common intention of the parties, with the consequent annulment of the relevant resolution. The clause of the bylaws protecting the minorities imposing a wide majority for the resolution concerning certain issues cannot be modified through a limited majority.
The First Civil Section of the Supreme Court, with decision no. 4967 of March 14, 2016, returned to the controversial matter of interpretation of the bylaws.
The lawsuit concerned the challenge by certain shareholders of a Public Limited Company (hereinafter the “Company”) of a resolution of the extraordinary shareholders meeting adopted in September 2001, which modified article 17 of the relevant bylaws. Article 17 of the bylaws required a wide majority — equal to 60% of the share capital — in case of a shareholders meeting that, in the first and second call, resolves upon certain items on the agenda, expressly listed, among which the amendment of article 17 of the bylaws did not appear.
The extra-ordinary shareholders meeting of the Company proceeded therefore with the amendment of article 17 of the bylaws according to the majority provided by art. 2369 of Italian Civil Code (in its former provision before the relevant amendment occurred by Legislative Decree 6/2003) and, therefore, through a majority equal to over one third, lower than that provided in the same article 17.
The shareholders challenged the resolution before the Court and the Court of Appeal in order to obtain the relevant annulment for the lack of observance of the majorities provided herein.
The Court of Appeal rejected the appeal submitted by the minority shareholders of the Company, while the Supreme Court recalled the laws regarding the interpretation of a contract (art. 1362 and following of Italian Civil Code) in order to annul both the challenged decision and, resolving on the merit, the part of the resolution of the Company which amended article 17 of the bylaws without observing the majority provided hereto.
The Supreme Court deemed that the interpretation of the bylaws pursuant to good faith, in accordance with the provisions of articles 1369 and 1366 of Italian Civil Code determines that, in presence of a clause of the bylaws which protects the minority of the shareholders providing for a wide majority of votes in case of resolution of the shareholders regarding certain matters, even the resolutions aiming at amending the clauses in which the wider majorities are provided must be subject to the same wide majorities. As a consequence, a non-qualified majority of the shareholders cannot on its own, even in case of lack of provision of the bylaws, modify the clause governing such wide majorities.
This decision of the Supreme Court has crucial value since it refers to the debate regarding the applicability to the bylaws of the “subjective” interpretative criterion provided by the general discipline of contract law (articles 1362-1366 of Italian Civil Code), aimed at giving more value to the purpose followed by the parties and to the behaviors of the latter after the execution of the contract, instead of the objective criterion provided for the interpretation of the law in general (article 12 preliminary disposition of Italian Civil Code), based, above all, on the literal meaning of the single provisions.