Violation of this clause renders the transfer unenforceable both against the company and against the shareholders holding the right of pre-emption, in addition to the obligation to compensate for any damage caused. In other words, if the pre-emption clause is included in the articles of association (and not only in a shareholders' agreement), it takes on “organisational” value and can be enforced not only by the company but also by the excluded shareholders. This gives the clause effectiveness vis-à-vis third parties, rendering the transfer relatively ineffective if it took place in violation of the clause.

The sellers had objected to the lack of passive legitimacy of the pre-empted shareholders, pointing out that only the company could object to the unenforceability of the transfer, but the Court rejected this argument.

However, the transfer is not automatically ineffective: the pre-empted shareholder must take legal action, demonstrating not only the violation of the clause but also the specific interest that has been harmed. This interest cannot consist simply of failure to comply with the procedure, but must translate into a financial interest in the purchase of the share. Only if this condition is met is it possible to obtain compensation for damages, including according to the equitable criterion provided for in Article 1226 of the Italian Civil Code.