CORPORATE | The Court of Milan decision on legitimacy and interest of challenging a BOD’s resolution issued in the Vivendi-Tim Case

On 14 January 2025, the Court of Milan issued its judgment No. 278/2025 on a shareholder’s challenge of a Board of Directors’ resolution of the largest Italian telecommunication provider. According to the claimant, the BOD unlawfully approved – in the context of a broader transaction – the transfer of the going concern relating to the company’s telecommunication fixed network, since the resolution was (a) in conflict with the company purpose (oggetto sociale); (b) beyond the limits of the powers of directors; and (c) in breach of the regulation governing transactions with related parties (operazioni con parti correlate) due to lack of the opinion on the transaction by the company’s Related Parties Committee (Comitato Operazioni con Parti Correlate). The shareholder therefore sought the annulment of this resolution and of all consequent deeds and agreements aimed at such transfer. The filing did not find acceptance from the Court of Milan, which stated that the shareholder lacked interest and legitimacy to challenge the BOD’s resolution. In particular, the Court stated that a shareholder may challenge a BoD’s resolution conflicting with company purpose, pursuant to Article 2388.4 of the Italian Civil Code, only if provided that such resolution jeopardises shareholder’s rights. Such prejudice was not detected in the case in question. The alleged violation of the related party transactions regulation (under Article 2391-bis of the Italian Civil Code and the internal procedure adopted by the company) was also rejected. The Court stated that exclusively directors and the Board of statutory auditors– and not shareholders – are entitled to challenge a BOD’s resolution in the absence, or in breach, of the opinion of the Related Parties Committee, according to Article 2391.3 of the Italian Civil Code.

Newsletter n. 105 – March 2025