The Firm’s Trieste office has recently represented the member of a company, who applied for an urgent relief requesting the Judge to adopt measures to enable the company member to fully exercise his right to obtain news relating to the business performance, to consult the company books and the documents relating to the management.
The applicant, in particular, objected to the fact that the director appointed by him had been excluded from the management of the company, thereby undermining his right to be informed about the conduct of the company affairs.
The member, therefore, formally informed the company about his intention to exercise his right of access to the company’s documents through an external auditor.
The managing director of the company, however, after having expressed his willingness to allow access to the company documentation, pointed out that he could not allow immediate access to it in light of a series of circumstances which would not allow him to be present at the company’s headquarters where the controls were to take place.
The applicant hence requested the managing director to make available the required documentation to the appointed professionals within a certain time. The managing director, however, did not make available all the required documentation to the external auditors.
Therefore, in light of the persistence of the breach of the right of access to documents pursuant to Article 2476, the member filed an application with the competent Court.
Based on the circumstances mentioned by the member, the Chamber of the Court of Trieste, competent for the entire region, granted the application.
The Court accepted the argument that the member who is the holder of the right of access to information and documents, is not just the member who is not involved in the management (as provided by the wording of Article 2476), but also the member-director. In particular, the Judge in Trieste believed that such right also extended to the member-director since he has the right / duty to oversee the work of the other directors. As a result, that right may well be exercised also by the member who – as in this case – has appointed his own representative in the board of directors.
The Court further pointed out that the member’s right of access concerned all the information relating to the company assets and management, as well as to its legal and economic relations.
The member’s right of access has, however, to fulfill itself while respecting the principle of good faith, so that it does not lead to any abusive conducts.
(Trieste Office – Francesca Greblo – 040 7600281).
