Diritto ai dividendi e abuso di maggioranza nella sociedad limitada : considerazioni a margine di Tribunal Supremo, Sent. 11 gennaio 2023, n. 9

Abstract

The decision of the Spanish Supreme Court subject to this commentary offers interesting insights into the case of majority abuse in limited liability companies when the majority shareholder, following the approval resolution of the balance sheet, systematically directs the allocation of profits obtained to voluntary reserves, excluding the distribution of profits among the shareholders for each financial year. Beginning with a preliminary examination of the existence and limits of the shareholder’s right to profits, the judgment also addresses the issue of remedies recognized for minority shareholders in cases of decisions detrimental to their position, specifically the right of withdrawal and alternative options. Condemning the defendant company to distribute the profits actually obtained, the decision under review finally raises the question about the extent of the judge’s powers in the face of the challenge to an invalid resolution: whether, in particular, they should be limited to an assessment of its legitimacy or if they can go as far as condemning the company to conduct contrary (or at least different) from what is decided by majority’s shareholders.