Exit Right in Cross-Border Conversions, Mergers and Divisions under Italian Law

The article analyses the “right to dispose of shares” as a means for protecting minority shareholders involved in a cross-border conversion, merger, or division according to Directive (EU) 2019/2121 and its implementation in Italy. The analysis is conducted with a specific focus on the rationale of the right of withdrawal, i.e., the change of the applicable law. Furthermore, the Italian Legislative Decree no. 19/2023 is examined with respect to the boundaries of the Treaties and the Directive minimum harmonization approach. After a brief historical introduction on the regulation of the right of withdrawal, the article delves into the scope of application of the new provisions, distinguishing the peculiarities of the three cross-border operations and, in particular, the cases in which the shareholders do or do not undergo a change in the applicable law. Then the methods, timing and content of the withdrawal declaration are considered, as well as its effects such as the right to obtain an adequate cash compensation. The aim is to assess if the implementing legislation achieved a right balance between the minority shareholders protection and the support for the transnational reorganization operation, in compliance with the principle of freedom of establishment.