THE SHAREHOLDER OF AT LEAST ONE THIRD OF THE SHARE CAPITAL OF A PRIVATE LIMITED LIABILITY COMPANY HAS THE POWER TO CALL A SHAREHOLDERS MEETING

21/10/2016

In relation to limited liability companies, the right to call a shareholders meeting, in case of inactivity of the management body and in absence of regulation by legal provisions and bylaws, must be accorded to the shareholders representing one third of the corporate capital (Supreme Court, decision no. 10821/2016).


 

 The First Civil Section of the Supreme Court has ruled that, in case of inactivity of the management body, where legal norms and company bylaws do not deal with the matter, the right to call a shareholders meeting must be accorded to the shareholder holding at least one third of the corporate capital.

Preliminarily, it must be noted that the Italian Civil Code does not regulate limited liability companies (S.r.l.) in the same way as public limited companies (S.p.A.) for which in respect of the latter art. 2367 of the Civil Code allows the summoning of the shareholders meeting upon the shareholders’ request.

Art. 2367, applicable to the S.p.A., provides as follows: “The directors or the management body must call without delay the shareholders meeting, in case of request raised by the shareholders representing 1/20 of the corporate capital of companies listed on the stock exchange market or 1/10 of the corporate capital of other companies or the lesser percentage provided by the bylaws, and the request shall contain the items of the agenda”.

The Supreme Court is of the opinion that – following the 2003 corporate law reform – in general the purpose of the reform has been to identify the S.r.l. as a flexible model, and one designed to enhance the personal elements existing in small and medium-sized companies; the above must be combined with a system of law provisions allowing organizational solutions set forth in the bylaws, as provided for partnerships. The role of the shareholder has become a central issue of the system governing limited liability companies: now the shareholder has been given powers that previously were exclusively reserved to the directors.

In particular, the Court – with reference to the case at issue – drew a marked distinction between the regime governing the S.r.l. from that applicable to the S.p.A., and also eliminated the reference technique. The autonomy and potential comprehensiveness of the legislation governing the S.r.l. must therefore exclude the analogical extension of the procedure for the summoning of the shareholders meeting provided by art. 2367, applicable to the S.p.A., to the case of the S.r.l. (moreover, such an extension would be in conflict with the inflexibility of the different corporate models).

The decision of the Court must be seen as the result of a constant effort by professionals aimed at eliminating the risks of deadlock within companies in case of inactivity and obstructionism on part of the directors. Such risks arise, on the one side, from the inapplicability of art. 2367 of the Italian Civil Code to private limited liability companies, due to the strong diversity of these corporate models; and, on the other side, from the irrelevance in the present context of art. 2487 of Italian Civil Code, relating exclusively to the appointment and revocation of the official receivers (subsequent to the Court’s decision).

In conclusion, it is evident that the decision at issue represents a considerable innovation in the corporate scenario and, in particular, with regard to limited liability companies which have finally identified, in case of silence of the law and bylaws, an alternative procedure, represented by the right of the shareholders – holding at least one third of the corporate capital – to call the shareholders meeting in case of inactivity of the management body.


TANKRED THIEM ELECTED VICE PRESIDENT OF DAV ITALIA

18/10/2016

On the basis of a vast majority, German-Italian attorney Mr. Tankred Thiem has assumed the position of Vice President of the Italian section of the Association of German Attorneys. As part of his mandate he intends to strengthen the ties between the section in Italy and those located in Germany. He also plans on consolidating and widening the offer of legal education with specific reference to German-Italian relations.


 

In the course of the annual assembly held on Monday 17 October 2016 at the Straf Hotel in Milan, Mr. Tankred Thiem was elected Vice-President of DAV ITALIA, the Italian section of the Deutscher Anwaltsverein (DAV) (i.e. the Association of German Attorneys). With over 67.000 members, DAV is the biggest private legal association in the world. Founded in 1871, the association relies on a widespread organization throughout the entire German territory, in addition to 10 sections abroad. The activities of DAV include protection of the interests of its attorneys, the redaction of position papers concerning law proposals, active participation in the German and EU legislative process, as well as taking the stand on current issues that are relevant to the work undertaken by attorneys and, finally, education of its members.

DAV ITALIA, founded in 2007, is one of the foreign organizations with the highest number of members. It collaborates with other German institutions operating in Italy, such as the Italian-German Chamber of Commerce and the German consulate in Milan, and presents itself as a point of reference for German private individuals and companies who require general information. DAV Italia regularly provides its members and interested professionals the possibility of attending educational events on topics that are of relevance to Italian-German relations in all areas of law.

 


COMPUTER PROGRAMS AND (RE) SALE OF COPIES VIA NON ORIGINAL SUPPORTS

14/10/2016

With recent decision of 12 October 2016, the Court of Justice of the European Union has once again dealt with the issue of exhaustion of the right of distribution for the sale of used computer program copies. The matter reached the European Court following referral for a preliminary ruling by the Regional Court of Right, Special Panel for criminal matters, in Latvia, where criminal proceedings were pending against Messrs. Aleksandrs Ranks and Jurijs Vasiļevičs. The defendants were accused of the sale of several online copies of software produced by Microsoft and protected by copyright.


 

The national judge asked the Court whether articles 4, letters a) and c), and 5, paragraphs 1 and 2, of Directive 91/250/EEC of the Council, should be interpreted in the sense that the purchaser of a “used” copy of a computer program, registered on a non original physical support, could, following application of the rule governing exhaustion of the right of distribution of the rightholder, sell to third parties such copy if (i) the original physical support for such program, delivered to the first purchaser, has deteriorated and (ii) the first purchaser has cancelled the copy of the software installed on his own PC or has ceased using it.

The Court of Justice initially observed that it is a well known principle pursuant to which the right of distribution of a copy of a computer program must be considered exhausted if the rightholder has (i) authorized the first sale of the copy itself and (ii), upon gaining an economic benefit, has assigned the right of use without temporal limitations (as stated by the Court of Justice in the known UsedSoft ./. Oracle judgment of 3 July 2012, case C-128/11).

The above mentioned rule of exhaustion of the right of distribution applies to copies of licensed software both in the case where such copies have been registered on analog support as well as downloaded from the website of the right holder in so far as, according to the Court, the directive makes no distinction between the tangible or intangible form of the copy. However, the first purchaser, if he intends to resell the copy of the purchased software, must render it unusuable or remove it from his or her PC.

The case under scrutiny concerns resale to third parties by Messrs. Aleksandrs Ranks and Jurijs Vasiļevičs of copies of Microsoft software registered on non original supports in so far as, according to the defendants, the original support had deteriorated or been destroyed. No evidence was brought forth in the course of the proceedings such as to prove that the copies of the Microsoft software, the object of the resale, had been legitimately purchased by Messrs. Aleksandrs Ranks and Jurijs Vasiļevičs.

Faced with these arguments, the Court excluded that the reserve copy of a computer program, albeit legitimate pursuant to art. 5, para. 2 of the above mentioned Directive, could constitute object of sale to third parties without the consent of the rightholder. However, the Court also observed that if the support on which the licensed program deteriorates or is destroyed, then the legitimate purchaser of an unlimited license for a copy of the computer program must be left in a position to download the aforesaid copy via the web site of the right holder for his own exclusive use.

In conclusion, the Court of Justice clarified that the first purchaser of an unlimited license for software has the right to resell to third parties the copy installed on his own PC without, however, being able to assign the reserve copy of said software if the origina support on which the copy has been registered deteriorates or is destroyed. In any case, it falls upon those who invoke the application of the principle of exhaustion of the right of distribution to prove, by any evidence, that they have legitimately purchased an unlimited license for the individual resold copy (and that they have rendered unusuale / have cancelled the copy originally installed on their PC).

TANKRED THIEM PROMOTES MILAN AS CANDIDATE FOR THE CENTRAL DIVISION OF THE UNIFIED COURT AT THE DIJV CONGRESS

11/10/2016

On 7-9 October 2016, the annual congress organized by the “Vereinigung für den Gedankenaustausch zwischen deutschen und italienischen Juristen e.V.” and its sister company the “Association for cultural exchanges between Italian and German jurists” was held – in complete bilingualism – in Munich, Germany. The congress took place in the comfortable EPO hall in Munich, with the participation of German lawyers, judges and university professors and with patent law being one of the central topics of the event.


 

Yet again the most heated debate concerned the effects of BREXIT on the new unified system of European patent law and the Unified Patent Court. While on the one hand several issues were brought to light by the interpretation of the treaty and of European Regulations, on the other hand what was discussed was the feasibility of those approaches that nevertheless try to include the UK in the scope covered by the unitary title, thus ensuring that the extent of jurisdiction of the future Tribunal will also reach beyond the Channel. In the discussions and debates that follow several possibilities and political and legal implications were discussed, and specifically that of assigning to Milan the section of the central division of the Unified Court, originally given to London. In that regard, the order of Italian consultants had already invited the national Government to take a formal stand on the point (cfr: http://www.ordine-brevetti.it/categoria/comunicazioni-iscritti/name/candidatura-di-milano-a-sede-del-tribunale-unificato-dei-brevetti). The agreement establishing a Unified Court places peculiar attention on the number of validated patents as well as the number of ongoing proceedings, as relevant factors for the choice of location where to allocate the sections of the Court. It is undeniable that Italy – after Germany and France, where the other two sections of the central division have been assigned to – is the State with the highest number of convalidated European patents. The debate ended with the statement, no longer disputed, that the city of Milan would be the most realistic and suitable choice for the section originally assigned to London. This also confirms what had already been stated by several Germany professionals who participated at the AIPPI Conference in Milan in September 2016. The colleagues had the opportunity to visit and see Milan and consider the potential offered by the Court of Milan with its modern adjacent structures.


LGV AVVOCATI ORGANIZES AN APERITIF WITH AIPPI

04/10/2016

With the AIPPI 2016 congress, entirely devoted to intellectual property and organized in Milan in September, LGV Avvocati held an evening reception that was attended by a high number of professionals and corporate representatives coming from the world over.


 

The firm expresses its thanks to all attendees for the wonderful evening and trusts that this will only be the first of several encounters.                                    foto-da-pubblicare-sul-sito