Statutory prohibition of partial transfer of shares

Statutory prohibition of partial transfer of shares

Marco Leonardi, Daniela Runggaldier

According to the Notary Council of Milan, clauses in the articles of association that prevent shareholders from transferring part of (but not all of) the shares or quotas held in joint-stock or limited liability companies are admissible under Italian law, thereby making such transfer conditional upon the shareholder transferring all the shares or the entire stake held (see resolution no. 251 of 5 July 2022).

With reference to limited liability companies, such clauses can be considered lawful based on the broader power granted by law to provide for the stake’s non-transferability in the articles of association (see Article 2469, paragraph 2 of the Italian Civil Code), while for joint-stock companies such clauses’ lawfulness would stem from the inapplicability to partial (but not to total) transfers of shares of the five-year time limit concerning the prohibition of transfers (see Article 2355-bis of the Italian Civil Code).

Such clauses entail different consequences depending on whether the affected company is a joint-stock company or a limited liability company, triggering, only in the first case, the shareholder’s legal cause for withdrawal, unless such shareholder has contributed to the relevant resolution.

Such clauses are useful, for example, to prevent partial disinvestments or excessive fragmentation of shareholdings in cases of partnerships in the form of  co-owned companies.