Through judgement no. 144770/2012 the Court of Cassation referred to the First President of the Supreme Court evaluation of the expediency of entrusting to the Joint Divisions the decision regarding the nature of reception of the meeting convocation notice sent to shareholders of a limited liability company.
More specifically, the Court raised the question of whether, in terms of the validity and efficacy of the convocation of the shareholders’ meeting of a limited liability company, it is sufficient that the convocation notice is timely forwarded to the shareholder to the address indicated in the shareholders’ register within the deadline established in the memorandum of association (or, failing this, at least eight days prior to the meeting, as laid down in article 2479 bis of the Italian Civil Code), or whether the convocation has to actually reach each of the shareholders before the date of the meeting in order to permit the attendance of the shareholder at the meeting.
Among the rare precedents in case law we can mention Cassation ruling no. 3587/1975, in which the Court upheld the absolute presumption of knowledge of the convocation by the addressees when the forwarding had taken place in accordance with the established provisions, and ruling no. 15672/2007 in which the Court deemed the shareholder’s non-receipt of the convocation irrelevant when it depended on reasons attributable to the shareholder himself.
In this context, the Court considered it necessary to address the question of whether the presumption of due convocation can be overcome by the addressee by allegation and proof of circumstances such as to rule it out. More specifically, the Supreme Court observed the need to clarify whether, once the due and timely forwarding of the convocation notice to the address indicated by the shareholder has been established, the said shareholder “can or cannot demonstrate that he has received the notice (at all, or) in sufficient time to permit his attendance at the meeting.”
From this perspective, in the case in question the Court has observed that not allowing the shareholder to prove that the convocation notice reached its destination late constitutes an absolute presumption and would appear to produce a balancing of the interests of the shareholders and of the company itself.
On the basis of the provisions of legal theory, it cannot be ruled out that the Joint Divisions may uphold the literal interpretation of article 2479-bis of the Italian Civil Code, thus endorsing the forwarding of the registered letter as sufficient for establishing the regularity of the meeting convocation procedure.