“It is by now a clearly established principle that the new regime of the S.r.l. (T.N. Italian limited liability company) has implemented a privatisation of the control on the work of the board of directors, thus the unconditional right of the member, who is not a director, to exercise a far reaching review of the company management ‒ functional to protect the interests of the company with respect to the directors’ conduct ‒ must be considered valid” (extract of precautionary order issued by the Court of Milan on 28.10.2017).
The above is stated by the Court of Milan in granting the ex parte application filed by a member of a S.r.l. who is not a director.
The Milan Judges have acknowledged the member’s right to consult and obtain copies of the company books and of all the documentation concerning the company’s management.
The Court’s decision is noteworthy because it inserts itself in the Italian doctrine and jurisprudence main trend that considers the existence of a true subjective right of the members to request and receive not only all appropriate information about the company business from the directors, but also to receive all the management / accounting / financial documentation of the company, and to be able to make copies of it, so as to enable their professional advisers to carry out the appropriate verifications.
The legal principle is expressed in Article 2476, third paragraph of the Italian civil code, according to which “Members who do not participate to the management have the right to receive news from the directors on the trend of the business and to consult, also through professionals of their trust, the company’s books and the documents relating to the management”. Therefore, the law aims at enabling the member to be in control over the management trend, in order to protect his interests and the company’s interests with respect to the work of the board of directors; in addition to allowing the member the better and sufficiently informed exercise of his rights.
Even though the rule seems to be formulated clearly, the right of the S.r.l member to access the social documents is a widely debated theme in Italian doctrine and jurisprudence.
The Court of Milan has embraced the more extensive interpretation of the rule, not only by acknowledging the existence of the mentioned right of the non-administrator members, but by specifically identifying the documents, other than the company books, which the members may access upon their request: journal, minutes of meetings, accounting reports of the company, bank account statements, service T-accounts, contracts, tax returns, as well as the data of the tax and social security mail box (cassetto fiscale e previdenziale) which are ‒ according to the Milan judges ‒ the “company documents” referred to in Article 2476 third paragraph of the Italian civil code.
Likewise, in the wake of the broad interpretation, the Court understood the term “consult”, used by the legislator, as a genuine right to take copies of all documentation.
In light of the above, the opportunity to act precautionarily for the recognition of the member’s right is undoubtedly a valuable instrument of protection, which nevertheless ‒ due to its peculiar nature ‒ requires a careful evaluation in terms of convenience and of existence of the legal requirements for the institution of the ex parte proceedings.
(Bologna Office – Elisabetta Sgattoni – Tel. 0039 (0)51 2750020)
