With the implementation of the law n. 124/2015, for the first time in our legal system, an organic regulation (consolidated text) of publicly owned companies is prepared. The reorganization of the legal framework of investee companies was long overdue; already in 2008 Assonime had indicated some guidelines for a reorganization of the legislation.
The delegation contained in the law n. 124/2015 provides the opportunity to pursue two complementary objectives. The first is an objective of regulatory simplification: the inclusion of the provisions in a single text should contribute to greater clarity and stability of the discipline. It is necessary to overcome the phenomenon of repeated adjustments that has characterized the production of regulations in this matter since 2007 and certainly does not help the good management of investee companies.
The second is an objective of a substantial nature: there is an opportunity to outline a better regulatory framework than in the past from the points of view (referred to in Article 1) of the efficient management of public shareholdings, competition and the rationalization and reduction of public spending.
The reform of investee companies is under the attention of the European institutions, as indicated in the 2016 Country Report on Italy published by the Commission last February. The rationalization of investee companies, in fact, can have a beneficial impact on public finances and on the efficiency of the economy, relevant for the purposes of compliance with the Stability and Growth Pact.
From this perspective, it is important that the consolidated text is capable of favoring a clear reduction in the number of subsidiaries (from 8000 to 1000), contains suitable rules to prevent waste of public resources, is inspired by the principles of protection and promotion of the competition. The draft legislative decree approved on 20 January by the Council of Ministers is the result of an extensive work of reconnaissance and reorganization of the legislation. In this note we focus on the main aspects of the discipline, suggesting possible improvements to the current formulation for some profiles.
Suitability of the legislation to regulate heterogeneous realities
One of the major difficulties posed by the delegation is that of drafting a single text capable of regulating profoundly heterogeneous realities, ranging from large listed industrial companies operating globally to in-house companies in small municipalities. To achieve the objective and ensure that the regulatory framework of public subsidiaries contains provisions calibrated to different situations, the consolidated text provides for the use of a series of tools:
to. an exception for listed companies (art. 1, paragraph 5), on the basis of which the provisions of the decree apply to listed companies only if expressly provided for. Article 2, paragraph 1, letter o, clearly defines what is meant in this context by listed companies;
b. the safeguarding of the provisions relating to individual law companies (art. 1, paragraph 4);
c. the possibility of resolving, by decree of the President of the Council of Ministers, the total or partial exclusion of the application of the provisions of the decree to individual companies with public participation (art. 1, paragraph 6). In this regard, it is crucial that these dPCMs must be motivated "with reference to the extent and quality of public participation, the public interests connected to it and the activity carried out". In this way, in fact, through the tool of the dPCM it is possible to continue to apply, even after the adoption of the consolidated text, the criterion contained in the enabling law on the basis of which, for publicly-owned companies, the derogations from the application of the provisions of common law must be strictly proportionate to what is necessary in the general interest.
This architecture allows for the necessary flexibility to achieve an adequately differentiated discipline.
Governance: role of the public shareholder and accountability
As repeatedly underlined by the OECD, in publicly owned companies there is the risk, on the one hand, of excessive liability of the public shareholder, and, on the other, of excessive interference in management. It is therefore crucial to specify both the powers and responsibilities of the public shareholder, and the areas of autonomy and management responsibilities of the directors.
In the 2008 Assonime report various wishes were expressed in this regard. First of all, in accordance with European law, any obligation imposed on companies for the satisfaction of public or social policy objectives should be explicitly explained and regulated; costs arising from public service obligations should also be clearly identified and covered in a transparent way (as required by state aid rules).
Secondly, in his capacity as shareholder, the public shareholder should only make use of the powers recognized to shareholders by the civil code. The relationship between shareholder and directors should be based on the setting of clear performance objectives, on the recognition of the operational autonomy of the company and on the evaluation of the directors, as exclusive holders of management power, solely in relation to the results obtained in pursuing the objectives agreed.
The OECD guidelines insist on the professionalisation of the state as a shareholder, suggesting the centralization of shareholdings in an entity capable of carrying out this role, setting clear objectives and monitoring the management of companies. If we look at the outline of the consolidated text from this perspective, the decision to concentrate the exercise of shareholder rights for state-owned shareholdings at the MEF is appreciable, albeit in concert with the other ministries responsible for the matter (article 9, paragraph 1).
Naturally, within the MEF, at an organizational level, the separation between the offices responsible for the exercise of social rights and the structure responsible for exercising the supervisory functions on the implementation of the discipline, envisaged by article 15 of the consolidated act, must be ensured .
As far as governance is concerned, the regulation provides for the application of the rules of common law for the public shareholder, with the addition of some provisions contained in art. 6 (fundamental principles on the management of publicly controlled companies). In particular, article 6 provides for the obligation for publicly controlled companies to prepare specific corporate crisis risk assessment programs, informing the shareholders' meeting, and to publish annually, together with the financial statements, a report on corporate governance .
Publicly controlled companies are also required to evaluate the opportunity, in consideration of the size, organizational characteristics and the activity carried out, of integrating corporate governance tools with: regulations on the subject of compliance; an internal audit office; codes of conduct; corporate social responsibility programs. If these additional tools are not adopted, the company must explain the reasons in the annual governance report.
