CORPORATE | Court of Brescia on a filing in case of inadequate organisational, administrative and accounting structure

On 23 October 2024, the Court of Brescia issued its Decree No. 138 concerning a filing to the Tribunal (denunzia al Tribunale) proposed by a minority shareholder of a joint-stock company (società per azioni) pursuant to Article 2409 of the Italian Civil Code. The shareholder claimed that the company had adopted an organisational, administrative and accounting structure (assetto organizzativo, amministrativo e contabile) pursuant to Article 2086 of the Italian Civil Code (the OAA Structure) that was inadequate for the nature and size of the company itself.  According to the claimant, such inadequacy of the OAA Structure was detectable in various circumstances, including the lack of budget and business plan, the lack of a well-organised commercial network, missing appointment of a commercial director, the inadequacy of the management control system (controllo di gestione), the lack of an internal informative system appropriate to run the company’s business and the unreliability of the budget data due to the inefficiency of the registration and cash control process.

The filing did not find acceptance from the Court of Brescia, which stated that the grounds on which it was based did not enable judicial review pursuant to Article 2409 of the Italian Civil Code. Such remedy applies, instead, in case of well-founded suspicion that directors, in breach of their duties, committed serious management irregularities (gravi irregolarità nella gestione). The failure to establish an adequate OAA Structure does not in itself constitute a serious management irregularity.

The Court also stated that the claim of inadequacy cannot be applied to the merits of directors’ decisions concerning the OAA Structure (unless directors are prevented from acting rationally and in an informed manner). The implementation of further mechanisms of the OAA Structure is inherent in the business judgement rule and is strictly related to the discretion of directors and, therefore, falls outside the area of judicial review.

Newsletter n. 104 – February 2025