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al right of dismissal are determined by the shareholders, in accordance
with the freedom of contract principle.
The second option is that the right to request from the court the
expulsion of a shareholder in case a just cause exists. Requests for
expulsion of a shareholder from a company is one of the non-delegable
authorities of the general assembly pursuant to Article 616/1/c TCC. In
this case, if the company believes that there is a just cause that prevents
a shareholder from remaining as such, the company shall apply to the
Court and the judge will decide whether the cause is just or not. The
judge will decide for expulsion if he agrees with the just cause.
Even if, pursuant to Article 3 of the Law on Application, the pro-
visions of the TCC shall apply to the limited liability companies incor-
porated by two shareholders that were established during the Former
TCC, the application of the first option is not directly possible. If the
contractual right of expulsion was not recognized by the articles of
association of a limited liability company established during the
Former TCC, this right of contractual dismissal can only be used after
the revision of the articles of association of the company providing
such right. However, the application of the second option is possible.
If the company proves the just cause, it may request the expulsion of
the shareholder from the company. Even if the company was incorpo-
rated during the Former TCC, instead of the dissolution of the compa-
ny in accordance with the previous decision of the Court of Cassation,
due to Law of Enforcement and provisions of the TCC, the court might
decide for the expulsion of the shareholder or for the application of
other circumstances convenient to the case.
Withdrawal
In case the relationship among the shareholders becomes unbear-
able, the right of contractual withdrawal provided by the articles of
association (TCC Article 638/1) and the permission of withdrawal for
just cause by the Court (TCC Article 638/2) are other solutions,
besides the dismissal or liquidation of the company. In accordance with
the above mentioned explanations, even if the articles of association of
a company incorporated according to the Former TCC does not pro-
vide for the right of contractual withdrawal, such right could be pro-
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NEWSLETTER 2014