Article 44 of Decree 76 of 16 July 2020 (so-called „simplification decree“) temporarily reduced the majorities until 30.6.2021 for the approval of the extraordinary general assembly of certain decisions relating to the increase of social capital by the extraordinary general assembly. Summary: Article 44 of Decree 76 of 16 July, 2020 (the „simplification decree“) provides that, until 30 June 2021, capital increases by limited companies (company per azioni), limited partnerships (accomandita per azioni) and limited liability companies may be authorised until 30 June 2021 with the positive vote of the majority of the share capital represented at the general meeting. , provided there is at least half of the social capital, even if the statutes set higher majorities. According to the description of the new rule, a number of reflections are being made on the consequences and possible guarantees for minority shareholders, which are limited to unlisted companies. Qualified majorities higher than legal majorities for authorizing capital increases are fundamental protection for minority shareholders (and investors). They are often included in the statutes: when the company is created with several partners in the context of aggregation, investment, private equity and venture capital transactions. In the absence of a shareholders` pact requiring shareholders to respect a qualified majority to authorize the capital increase, the minority shareholder has the opportunity to challenge the capital increase decision on the part of the majority interest only if the decision is not justified in the interest of the company and if the majority shareholder`s vote pursues a personal interest contrary to the interest of the company. , or if it is the instrument of fraudulent activities of majority shareholders aimed at violating the rights of minority shareholders. A narrow leak, and certainly insufficient protection. The protection offered by the shareholders` pact is strong, but less than that of the statutes. The statutory clause, which requires a qualified majority, binds all shareholders and the company, so that the capital increase cannot be effectively authorized in violation of the statutes. On the other hand, the shareholders` pact is binding only between the parties to the agreement, so that it does not prevent the company from authorizing the capital increase, even if the shareholder vote is contrary to the obligations arising from the shareholders` pact. In this case, the other shareholders are entitled to compensation for the damage caused by the infringement.
In order to assess the situation and the protection of the minority shareholder, any shareholder pact between shareholders must be examined. The existence of a shareholder pact will be virtually certain for private equity or venture capital transactions or by other professional investors. But apart from these cases, there are many companies, especially among small and medium-sized enterprises, where relations between shareholders are governed exclusively by the statutes. Parliament ignored all of this and introduced a rule that does not simplify. On the contrary, it fuels conflicts between shareholders and undermines legal certainty, thereby discouraging rather than encouraging investment. (c) for publicly traded companies, the majority of two-thirds of the share capital of the general meeting (Article 2368, paragraph 2, and Article 2369, paragraph 3, of the Italian Civil Code). The temporary provisions of Article 44 of the simplification decree provide that decisions are adopted with the agreement of the majority of the social capital represented at the general meeting, provided that there is at least half of the social capital.