Replacement of corporate resolutions during the trials set up to get such resolutions declared void
Gloria Millepezzi, Avvocato in Torino
Il presente contributo cercherà di mettere in luce come l’istituto della sostituzione prescritta dall’art. 2377, comma 8, c.c., racchiuda in sé diversi principi ispiratori della riforma del diritto societario introdotta dal d.lgs. 17 gennaio 2003, n. 6, tra cui il favor per la stabilità degli atti societari e per la conservazione degli effetti da questi prodotti nei confronti dei terzi, la prevalenza della tutela risarcitoria rispetto a quella reale, il restringimento delle ipotesi in cui le delibere societarie possono essere annullate.
The paper will shed light on how the institution under article 2377, paragraph 8 of the Italian civil code (i.e. the rectifying process of replacing a potentially invalid company resolution with a valid one) includes several principles that inspired the reform of company law introduced by the legislative decree no. 6, dated 17 January 2003. Among such principles, there are the stability of company acts and the conservation of the effects produced by these acts towards third parties, the prevalence of damage compensation on annulment of company resolutions, the tendency to narrow the number of the possible cases of invalidity, to name but a few.
Keywords: corporate resolutions – annulment – invalid resolutions – resolution replacement – substitution – rectification.
Article 2377, paragraph 8 of the Italian civil code provides for the so called “substitution of corporate resolutions”: such legal institution belongs to the micro-system of the legal provisions on invalidity of company resolutions (actions for annulment and for nullity), established by articles 2377 et seq. of the civil code. These rules were modified by the reform of company law introduced by the legislative decree no. 6, issued in January, the 17th, 2003.
The instrument of the substitution existed already before the above-mentioned reform, and it has always been at the centre of debates and studies : this is due to the fact that the different ways in which this institution can be applied are expression of different legislative and doctrinal interpretations, as well as of the business tendencies and strategies pursued by the various company bodies.
In particular, the substitution can be a tool used by the company board in order to avoid possible liability actions, but also an instrument at the service of the shareholders, whenever they might come up with different evaluations of the company interests and strategies and, as a consequence, might rethink the content of the resolution previously adopted.
The following pages will try to illustrate how the phenomenon of the substitution reflects the principles that the reform occurred in 2003 developed to renovate the system of the invalidity of corporate resolutions. Among such principles, there are the favour for the stability of company acts and for the conservation of the effects produced by such acts towards third parties, the prevalence of damage compensation on the annulment of company resolutions, the tendency to narrow the number of the possible cases of invalidity, to name but a few.
The text (without pretending to be whatsoever exhaustive of its topics) is going to limit its insights into the substitution of corporate resolutions against which an action for annulment has already been filed. Therefore, no specific investigation will be carried out on the case of substitution of resolutions under trials started by issuing a claim for nullity .
2. The “substitution” defined by article 2377, paragraphs 8 and 9 of the civil code: general characteristics
2.1. The substitution of company resolutions already objects to actions for annulment is provided for in article 2377, paragraphs 8 and 9, but also by article 2378, paragraph 4 and by article 2479 ter, paragraph 2 of the civil code. In particular, the first three provisions establish the rules on the suspension of the resolution challenged before the judge, while article 2479 ter deals with the invalidity of the “s.r.l.” limited liability company decisions.
More precisely, whenever a company decision is issued to replace a previous deliberative act, no legal claim can be brought against the first resolution. Instead, in the case that the substitution occurs during the trial set up to get the very decision annulled, the legal action cannot continue. Anyway, these two effects take place only when the second company resolution has a content and a form that allow it.
2.2. The doctrine  explained the meaning of article 2377, paragraph 8, by enlisting the requisites that the decision approved later cannot lack in order to produce the rectification phenomenon here referred to as “substitution”.
First of all, the resolution adopted to replace the previous one cannot but have some strong connections with the former: it must indeed have its same object. In case of non-uniformity of the contents, the resolution adopted later would simply be a new company decision with no rectifying effects