Interpretative doubts on the revocation of the controlling body which has become “optional” further to Law Decree n. 91/2014 are far from being settled

Interpretative doubts on the revocation of the controlling body which has become “optional” further to Law Decree n. 91/2014 are far from being settled. As known art. 20, 8 para., of Law Decree 91/2014 converted into Law n. 192/2014 repealed art. 2477, 2 para, of the civil code which provided that, in case of an S.r.l. (limited liability company by quotas) with corporate capital equal or in excess of EUR 120,000 – the appointment of the controlling body was mandatory. In addition the legislator has specified, again see art. 20, 8 para., that “the supervening inapplicability of the provision concerning the mandatory appointment of the controlling body […] represents a just cause for revocation”.

Consequently the question is now whether in order to revoke the controlling body - appointed pursuant to such mandatory provision, now repealed - it is sufficient to proceed only with a general meeting resolution or whether, on the contrary, such revocation must necessary be approved by the court pursuant to art. 2400, 2 para, of the civil code, which has not been amended even following the enforcement of Law Decree 91/2014.

In the context of the above uncertainties, the National Council of Notaries (CNN) by means of a Report n. 1129-2014 (approved on 9 January 2015), upheld that the revocation of the controlling body adopted only through a general meeting resolution is legitimate on the basis of the following three main reasons:

1. The revocation adopted pursuant to art. 20, para. 8, of Law Decree 91/2014, is strictly linked to the repeal of art. 2477, 2 para, of the civil code. That is a “typical” case of revocation for just cause due to a specific legislative amendment;

2. The rationale behind the revocation pursuant to art. 20, para. 8, is different from the rationale of the provision of art. 2400 of the civil code, i.e. the need to protect the controlling body’s independence against a revocation adopted without just cause by the general meeting;

3. The provision of the said art. 20, para. 8, was not included in the civil code and should not be regarded as a generally applicable provision.

That said, contrary to the CNN’s interpretation, on January 13, 2015, the Ministry of Justice released the note n. 4865, whereby it stated that “lacking any express relevant legislative provision” the court approval pursuant to art. 2400, 2 para, of the civil code, shall be deemed an unavoidable requirement in order to revoke the controlling body for just cause “even if only for the purpose of ascertaining that [originally] the appointment of the controlling body was exclusively due to the provision of art. 2477, 2 para, now repealed, of the civil code”.

In the light of the above, it remains to be seen which interpretation will prevail.