“It is possible for the by-‐law to provide that the equity capital, which is mentioned by article 2437-‐ter, second paragraph, of the Civil Code for the purpose of liquidation of shares in case of withdrawal (but also, in case of mortis causa pre-‐emption right, because of the statement of the article 2355-‐bis, third paragraph of the Civil Code) is assessed pursuant to the criterion which consider the use of assets on the going concern perspective”
According to the ruling no.16168/2014, the Supreme Court stated the lawfulness of a provision of the by-‐law which prescribed the following mechanism in case of liquidation of shares: “the price of shares shall be determined […] on the basis of the equity consistency ascertained with regard to the use of assets on the going concern perspective, the corporate prospects of revenues, as well as the market value of shares”.
As is widely known, article 2437-‐ter of the Civil Code provides that the liquidation of shares of the withdrawing shareholder is determined on the basis of three groups of assessment criteria (the equity capital, the prospects of revenues and any market value of shares), granting the directors discretional powers in order to balance the three criteria, as well as in order to choose each corporate method to implement each criterion.
Under the freedom granted pursuant to the third paragraph of article 2437-‐ter of the Civil Code, the by-‐ law shall supplement and specify the abovementioned assessment criteria.
In particular, the Supreme Court ruled that in the assessment of the equity capital is possible to apply different methods in the scope of technical appraisal, whose limits consist of the need not to be quite distant from its estimated value in its results. In such context, the Supreme Court stated that the criterion of equity capital is appropiate for the application of a series of criteria, beacuse of its flexibility which shall be sfecified by the provision of the by-‐law. Such specification may occur through the going concern assessment criterion which is consistent with the assumption of assets organized in the business activity, whose overall value is not equal to the sum of each asset, being instead influenced by the going concern perspective, as far as the business activity continues.