In non-listed companies, treasury shares, which are owned by the issuing company itself, must be considered when calculating both the constitutive and deliberative quorums for shareholder meetings, as per Article 2357-ter, paragraph 2, of the Italian Civil Code.
This means that at the start of the meeting, these shares are counted as present, and during voting, they are included in the denominator for quorum calculations, whether based on the entire share capital or just the capital present at the meeting.
The Supreme Court's ruling in decision 23557 clarifies that a different approach is required for listed companies.
While the constitutive quorum is calculated similarly to non-listed companies, treasury shares are excluded from the deliberative quorum calculation, as stated in Article 2369, paragraph 3, of the Civil Code.
In the case reviewed by the Supreme Court, a non-listed company's share capital was divided with 47% held by the majority shareholder, 43% by the minority shareholder, and 10% as treasury shares.
A valid resolution required the approval of both shareholders, as neither could reach the necessary 50.01% threshold alone due to the inclusion of treasury shares in the denominator.
The Court justified the different treatment of treasury shares between listed and non-listed companies by noting that listed companies cannot hold more than 20% of their capital as treasury shares, whereas no such limit exists for non-listed companies.
The inclusion of treasury shares in the denominator for non-listed companies ensures that their purchase, funded by all shareholders' money, does not disproportionately benefit majority shareholders.
If treasury shares were excluded, the majority shareholder could unilaterally pass resolutions, undermining the balance of power intended by the law.