Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Abstract: Shareholders’ “Interessi Primordiali”: From Implied Competences to Modification of Corporate Purpose – Establishing the boundaries of the powers attributed to the Board of Directors of a corporation and, consequently, identifying the transactions that directors can autonomously carry out and those that are subject to shareholders’ approval – especially in connection with transactions that are able to either significantly modify the corporation’s business or materially affect shareholders’ rights (that is, involving shareholders’ so called “interessi primordiali”) – is a fundamental, recurring theme in corporate law. This issue has been traditionally approached as a matter involving the proper allocation of competences between corporate bodies. However, such an approach appears not to be fully satisfactory, especially when it comes to identifying remedies available to (minority) shareholders in case directors act in breach of their purported duties. This paper suggests a different approach to the problem, which focuses on whether the relevant transaction results in a de facto modification of the corporate purpose, as set out in the relevant corporation’s bylaws.  

Sommario: 1. Premessa. – 2. Il dibattito in corso e le diverse tesi prospettate. – 3. Critica all’impostazione tradizionale. – 4. Una diversa impostazione: oggetto sociale, art. 2361 c.c. e rimedi a fronte di modifiche sostanziali dell’oggetto sociale.  

Keywords: Corporate Law — Directors’ and Shareholders’s Competences Allocation — Corporate Purpose — Right of Appraisals.