Consortium companies spa, extraordinary shareholders’ meeting, Introduction during the company of a clause for the overturning losses on shareholders, Court of Cassation, I Civ. Section, Judgment n. 2623 of 02/02/2018

Essential lines of the arguments of the Supreme Court of Cassation

This was followed by a resolution of the ordinary shareholders’ meeting of the consortium company, which approved the financial statements for the year ended December 31, 2004 with a majority vote on the individual consortium members, in proportion to shares held by each.

For the ascertainment of the nullity of the indicated resolutions, the Confindustria consortium members have promoted separate actions …. and Province … .. before the Court of Palermo. In the same period of time, … he has requested and obtained injunctive decrees against the consorts …, … …. and … for the payment of the sums placed at their charge by the said budget assembly: by opposing the related decrees , also these consortium members have found the nullity of the aforementioned assembly resolutions.

Once the disputes were resolved, the Court of Palermo accepted the questions of invalidity of the resolutions in question, with a ruling of March 23, 2009, as then corrected, at the request of the consortium members, by a special order dated June 26, 2006.

With regard to the said ruling he appealed ….

The Sicilian Court has fully confirmed the sentence under appeal, except only to carry the charge of … even the expenses related to the first degree of the trial.

REASONS FOR THE DECISION

3.- The grounds for appeal, made by …, evoke the defects listed below. The first reason (p.12 of the appeal) assumes “violation and misapplication of the articles. 132, paragraph 1, n. 2 and 156, paragraph 2, cod. proc. civ., in relation to art. 360 paragraph 1 n. 3 cod. proc. civ., for having considered that the omitted indication “… …” in the heading of the deed, was amended by the same Court by order dated 26 June 2009, issued at the end of the correction procedure “.

The second plea (page 15) then invokes “violation and misapplication of articles 111 of the Constitution, paragraphs 1 and 2, for absolute inadequacy of the grounds of the judgment under appeal, formulated by reference to another order.

The third reason (p.16) censors, in turn, “violation and misapplication of articles 2379 and 2434 bis cod. civ., in relation to art. 360, paragraph 1, n. 3, cod. proc. civ., to have considered that the decision of invalidity of the shareholders’ resolution “may be issued with reference to the appeals contained in the summons in opposition to proposals from … .., … and …”, in application of the general principles referred to in Articles 1421 and 1422 cod. Civ.. ”

The fourth plea (p.22) also cites “violation and misapplication of articles 2615 ter, 2603 and 2607 cod. civ., in relation to art. 360, paragraph 1, n. 3, cod. pro. civ. to have considered that the introduction of the obligation for the shareholders to cover the losses recorded during the financial years must be introduced with the unanimous consent of the shareholders “. The fifth plea (p.29) also points out “violation and misapplication, in relation to art. 360, paragraph 1, n. 3 cod. proc. civ. art. 2423 cod. civ. – Failure to state reasons regarding the illegitimacy of the resolution approving the financial statements for the year ended December 31, 2004 “.

4.- With the first ground of appeal, … assumes, in particular, that the omitted indication of the … in the heading of the sentence of first instance, as well as the omitted transcription of the conclusions formulated by this part, are not to imply a simple defect of irregularity – as amended by amendment (according to what actually happened in the case under examination) – but a real case of nullity of the sentence.

5.- The reason can not be accepted. Given the findings of the ruling of the territorial court, in fact, these are vices “all of a purely formal nature … already amended by the Court itself”. According to the orientation of this Court, on the other hand, the nullity of the sentence “is determined only by an irremediable conflict between the device and the motivation. On the contrary, where there is a partial coherence between the device and the motivation, diverging only from a quantitative point of view, and the motivation is anchored to an objective element that unequivocally supports it, so as to exclude a hypothesis of rethinking the judge, the irrevocability of the contrast, since in these cases it is a mere material error, with the consequence that, on the one hand, the experiment of the relative correction procedure is allowed, on the other hand, any appeal against to assert the nullity of the sentence allegedly dependent on the contrast between the device and the motivation “(see also Cass., 18 May 2016, No. 10229; v. likewise, in particular, Cass. U.S., 12 February 2013, n. 3265). 6.- The second ground of appeal takes up the issue of the correction of the judgment of first instance, in the light of the fact that the reasoning given in this regard by the contested decision can not be limited to a “general reference” of the correction order, more if indicative only of the filing date of the provision.

7.- This reason can not be accepted either. The same, in particular, manifests itself as inadmissible due to the erroneous identification of the type of defect, and the inadequate reasoning in relation to a question of law is not disputed. On the other hand, the plea also appears to be unfounded, since the corrective order can not be regarded as an ‘extra-procedural document’, as the appellant claims. 8.- The third ground of appeal arises from the finding that “the judgment of opposition to the D.I. n. 362/06 promoted by …. », That« no. 304/06 promoted by … »and that« no. 290/06 promoted by ….. »…., Are” based on the alleged invalidity “of the resolution of the extraordinary shareholders’ meeting which introduced a new version of art. 35 of the Articles of Association and the resolution of the ordinary shareholders’ meeting that approved the financial statements. Having said this premise, the reasoning assumes that the judgment challenged has erred in considering that the invalidity of the resolutions “could well be deduced also with the opposition acts, if not otherwise in application of the general principles set forth in articles. 1421 and 1422 cod. Civ.. ” In fact – the plaintiff points out – «in relation to opposition to an injunction order concerning the collection by the company of the receivables due to shareholders on the basis of the resolution approving the financial statements, the opposing shareholder can rely exclusively on matters concerning the effectiveness of the same and therefore related to the existence of the same and / or the documentation laid at the foundation of the injunction “. 9.- The reason can not be accepted. In this regard, it should be noted, before anything else, that the consortium …… and … .. have pleaded the nullity of the resolutions in question not already in opposition to an injunction, but with appropriate summons assuming the illegitimacy of the object of the same (with separate deeds, notified one dated 14/15 December 2005, as indicated by the related counter-appeal on page 3, the other on 9 November 2005, according to the respective counter-appeal, p.2). This shows the inadmissibility of the complaint so proposed by the applicant, due to lack of interest.

Apart from this importance, which is itself absorbing, it should also be noted that there are no procedural obstacles to the detection of a defect of nullity in negotiations in opposition to an injunction. Moreover, in the case in question the oppositions proposed objectively concerned the non-existence of the claim claimed by … against the individual consortium members, as a claim based on the title assumed to be invalid (such being, in the perspective outlined by the opponents, the resolution of the statutory amendment of article 35, which is the basis for the request for sums contained in the resolution approving the financial statements).

10.- The fourth ground of appeal concerns the central point of the substantive situation submitted to the examination of this Court. According to the appellant, for the introduction during company of a clause of “coverage of losses by the consortium members in proportion of the shares held”, the consensus of all the consortium members is not required, as instead held by the contested judgment.

According to the appellant, on the other hand, the majority of consensus of the consortium members (not for heads but for quotas) is sufficient. “The consortium companies” are – so it is reasoned – “companies integrally subjected to the discipline of the social type adopted”; in this case, the social type adopted is that of s.p.a. «In the joint-stock company – and therefore also in the consortium company – the extraordinary shareholders’ meeting resolves with the favorable vote of many shareholders representing more than half of the share capital, if the by-laws do not provide for a higher majority».

11.- The reason does not deserve acceptance. The reasoning of the applicant, which has just been reported, can not be shared.

Correct, on the other hand, appears the solution made by the Court of Palermo. This, in motivating the related assumption, has come to dwell and to involve both the legislation specifically dedicated to the subject of the consortiums, as well as the discipline of the joint-stock company. Under the first profile, the ruling found, in particular, that the provisions of articles 2603 and 2607 cod. civ. they are to be counted among the “fundamental principles” of the institute, to be estimated “not derogable” even in the case where the consortium takes the form of a “joint stock company”, referring to the precedent of Cass., November 4, 1982 , n. 5787.

Under the second aspect, it has in particular recognized the existence of a “strict analogy” between the case in question and “that referred to in art. 2345 cod. civ., prohibition to modify without the consent of all members the obligations of ancillary services not provided for in the deed of incorporation ». The Board considers that the basic approach adopted by the Territorial Court is correct, even though it considers it necessary to make certain clarifications and clarifications to be carried out in practice. As follows below.

12.- It is traditional orientation of this Court to assume a perspective that tends to reconcile – to mediate, so to speak – between the mutualist cause, which is assumed to be proper to the consortium and the consortium companies in general, and the disciplinary structure of the corporate type, which is concretely adopted by the autonomy of the consortium members.

In the evolution represented by the present, this perspective seems to find its own point of equilibrium in admitting the possibility, in principle, that “the insertion of a consortium cause may imply an implied derogation to some provisions otherwise applicable to that particular type of society, when the application of those provisions proved to be incompatible with essential aspects of the consortium phenomenon “: but this only respecting the impassable limit constituted by the maintenance and preservation of the” fundamental connotations of the chosen corporate type “, which could never come «Upset to the point of making it unrecognizable compared to the corresponding legal model» (thus, in more recent times, Cass., 23 March 2017, No. 7473, which takes up the line already drawn, among other rulings, by Cass., November 27, 2003, No. 18113, Cassation, January 4, 2005, No. 122, Cassation, June 17, 2011, No. 13293).

13.- The case, here concretely under examination, stops – even exhausting – on the issue of the introduction during company of a clause which places on the consortium members (in proportion of the shares respectively held) the obligation of new contributions for the if there are any operating losses.

Compared to this type of case, far from without operational diffusion, do not contain specific precedents of this Court (such can not be considered the ruling of Cass., No. 122/2005, which concerns the issue of effective respect , by a shareholders’ meeting resolution, of a “loss reversal” clause certainly already subsisting in the company by-laws).

For this specific type of case (for the introduction in the course of the social contract, of a clause for the reversal of losses on shareholders), there does not seem to be any possible divergence between the rules of consortia and the rules of the various types of company, which sometimes mark – we have just noticed – the phenomenon of consortium companies. Rather, the two sets of rules seem to converge towards a single substantial direction.

The code legislation on consortia in general is unequivocal, indeed, in indicating that all the modifications of the constitutive contract must report the consensus of each consortium, as indicated, in particular, the provision of paragraph 2 of art. 2607; the fact that this provision allows the statutory autonomy to dispose of a different and majority rule, to be introduced in any case to unanimity, indicates the extent of the difference between the two hypotheses also in the point of entrustment of individual participants. And within this perspective, the provision of paragraph 2 of art. 2615 ter (in the case of a consortium company, “the deed of incorporation may establish the obligation of the shareholders to make contributions in cash”): the expression “deed of incorporation” is precisely to identify itself here with the necessary consent each associate member.

It is a general principle of c.d. capital companies, on the other hand, that shareholders can not be forced to perform new and further contributions. From this visual angle, the provision of art. 2345, paragraph 2, cod. civ. (“Unless otherwise provided in the deed of incorporation, the obligations under this article can not be changed without the consent of all members”) is, in truth, only a case of application of this principle (here too the apposition to the constitutive act of a different and majority rule giving life to a figure of society that manifests itself strongly differentiated from the basic one assumed by the code).

14.- The fifth reason assumes that the judgment under appeal “did not rule on the question concerning the validity of the financial statements for the year ended December 31, 2004”. The same also notes that, “at the time of the preparation of the draft budget”, the art. 35 (in the text introduced by the resolution of the extraordinary meeting a few months before) was “current law, regularly approved and registered in the register of companies and, as such, was to be applied by the directors and by all corporate bodies, including the Assembly and the Board of Statutory Auditors “.

15.- The reason can not be accepted. The Court has expressly assessed as “absorbed” the reason for appeal presented for the faults of the resolution approving the financial statements. In fact, this resolution is affected by a vice of nullity derived, taking the title of the “reversal losses” in the resolution to introduce a majority of the relevant clause, which was seen to be null. On the other hand, the correct behavior held by the directors and the mayors of the consortium, which particularly underlines the reason under examination, has nothing to do with the subject of the controversy here examined.

16.- In conclusion, the appeal should be rejected. The costs follow the loss.

The Court rejects the appeal and condemns the appellant to pay the costs of the judgment of legitimacy, which he liquidates in the amount of € 5,200.00.

Source Supreme Court of Cassation