Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Abstract: The Article tackles the issue of the matters on which the general meeting shall decide, even if such a matter is not expressly listed by the law or the by-laws of the company. The issue involves the so called basic interests of shareholders (interêt primordial, in French) such as the sale of the core business of the firm, the decision to turn an operating company into a holding company, or that concerning the decision not to recapitalize the sole subsidiary of a holding company and lose control over it. The A. share the opinion of a recent decision of the District court of Rome, declaring that in such cases the shareholders have a right of full disclosure and decisions must be taken by the general meeting, not by directors, as such decisions exceed their powers. The A. justify their expressed opinion with reference to the wide international debate, mostly developed in Germany, confirming that all decisions involving basic interest of shareholders shall be discussed and approved by the general meeting.

Sommario: 1. Rapporto tra organo gestorio e assemblea: un excursus. – 2. Una recente decisione giudiziaria. – 3. Sui limiti all’autonomia privata in materia di autorizzazioni assembleari. – 4. Competenze implicite e regole di responsabilità: insufficienza della tutela risarcitoria.

Keywords: Basic Interest of Shareholders — Matters on which the General Meeting Decides — Directors’ Powers.