In a recent decision on the grounds for the invalidity of shareholders’ resolutions, the Italian Supreme Court (Corte di Cassazione) by order no. 9492 of April 14th, 2026, addressed the rules governing shareholders’ conflicts of interest pursuant to Article 2479-ter, paragraph 2, of the Italian Civil Code. The Court confirmed the conditions for the annulment of a shareholders’ resolution and the requirement for the conflict to be concrete and current to be legally relevant.
The dispute
The dispute originated from an action of annulment of a shareholders' resolution adopted by a limited liability company (società a responsabilità limitata). Throughout said resolution the company has approved a liberal contribution in the aggregate amount of EUR 100,000, aimed at enabling the beneficiary Foundation to cover the costs relating to the organization of an art exhibition.
The resolution was adopted with the decisive vote of three shareholders jointly holding 73.5% of the company’s share capital, who, according to the claimant, were in a situation of conflict of interest due to their legal relationship with the beneficiary Foundation. According to the claimant, the shareholders’ conflict of interest arose both from a direct interest — as they were holders of bare ownership rights over art collections forming part of the Foundation’s activities and located within the foundation’s premises — and from an indirect interest – as they held the right to become founders of the Foundation, as indeed occurred after the events at issue, and were also owners of additional artworks loaned to the Foundation.
Nevertheless, the Rome Court of Appeal, overturning the first instance decision, dismissed the claim for annulment of the resolution. On the one hand, the Court of Appeal excluded the existence of a concrete and current conflict of interest, noting that the contribution was intended to cover the costs of an exhibition concerning assets unrelated to those over which the allegedly conflicted shareholders held rights. On the other hand, it held that the simultaneous payment of EUR 100,000 made in favor of the company by the owner of the artworks had neutralized any potential detrimental effect of the resolution.
When the dispute was brought before the Italian Supreme Court, the Court also dismissed the appeal confirming principles of significant relevance on shareholders’ conflicts of interest.
The principles confirmed by the Court
First, the Supreme Court clarified the cumulative nature of the requirements for the annulment of a company decision pursuant to Article 2479-ter, paragraph 2, of the Italian Civil Code. Accordingly to Article 2479-ter, the Supreme Court affirmed that, for the claim of annulment to be upheld, the claimant must both agree and prove the concurrent existence of:
- a conflict of interest affecting the shareholder whose vote was decisive for the approval of the resolution; and
- the detrimental nature of the decision for the company.
The lack of even one of these two requirements determines that the resolution remains valid. Indeed, there may be resolutions that have caused damage to the company although adopted in the absence of a conflict of interest and, conversely, resolutions adopted in a situation of conflict of interest which nevertheless have not caused harm to the company.
With reference to the conflict of interest, the Supreme Court reaffirmed that for the purposes of the annulment of a shareholders’ resolution, the relevant conflict must exist at the time the vote is cast and must also be current and concrete. More specifically, the conflict of interest:
- must be concurrent with the resolution, meaning it must exist at the moment the vote is expressed. Conflicting situations arising after the shareholders' meeting are therefore irrelevant and cannot be deemed to retroactively affect the moment of the vote;
- must be concrete, meaning that the shareholder’s extra-corporate interest must have objectively interfered with the company’s interests to such an extent as to prevent the shareholder from expressing a valid corporate will as a member of the shareholders’ meeting. The mere concurrence of interest, where direct or indirect, is therefore not sufficient.
Some food for thoughts
By consolidating significant legal principles and providing clarity on the existence of a conflict of interest capable of vitiating shareholders’ resolutions, the decision of the Italian Supreme Court offers several practical insights for the management of shareholders’ meetings and of related disputes.
From a corporate governance perspective, the decision highlights the importance of carefully supervising shareholders’ meetings and properly monitoring the absence of interference between the individual interests of shareholders and the corporate interests, particularly in connection with resolutions concerning acts of liberality.
From a procedural and substantive standpoint, the decision brings into focus the need to verify the existence of both conditions for the annulment of a shareholders’ resolution. Before initiating proceedings under Article 2479-ter, paragraph 2, of the Italian Civil Code, it is therefore always advisable to verify whether there is evidence of both damage and conflict of interest, so as to avoid basing the claim on merely potential conflicts of interest or on resolutions that have not caused any detriment to the company, which would likely result in the dismissal of the action.