The news spread by mass media of the recent agreement reached between Cassa Centrale Banca and Iccrea Banca – both at the top of the two cooperative banking groups established following the enactment of law no. 49 of 2016 - regarding the question of the withdrawal of the mutual banks adhering to the first group and participating in the capital of the second group marks a further stage in the 'strange story' of cooperative credit banks.
In fact, this agreement puts an end to the "querelle" on the matter that arose between the CCBs that have joined the Trentino group and Iccrea Banca, which had been requested to reimburse the shares they held in the latter's share capital. Therefore, the 'matter of the dispute' as a basis for some arbitration proceedings activated by these CCBs in order to ascertain the existence of the relative rights has ceased. If, on the one hand, this epilogue of the story leads to a positive assessment of the peaceful settlement of disputes which could have increased the already existing climate of tension within the category, it also represents a lost opportunity to reach a judicial scrutiny on the "holding constitutional” of the 2016 reform.
Particular attention is paid to the fact that with the cessation of the aforementioned arbitral proceedings, the possibility for the cooperative banks to obtain from the Arbitration Boards a pronouncement (and a possible referral to the Judge of Laws) on the constitutional legitimacy of the 2016 reform, a question raised before one of the aforementioned Panels of judges during the constitution of the same.
This, both with specific reference to the exclusions of the right of withdrawal established by art. 2, paragraph 1, of law 49/2016 for the mutual banks participating in the parent company and for the members of the participating mutual banks, in relation to the statutory amendments (of the parent company and of the individual mutual banks) preparatory and necessary for the activation of the group, unconditional limitations already criticized in doctrine (Sacco Ginevri) and that do not appear consistent with the indications that the Constitutional Court itself has established in sentence no. 99/2018 in a similar matter; and, more generally, with reference to the overall contents of the legislation in question which, according to authoritative voices (Onida, Capriglione), is antithetical and contrary to the principles of the constitutionally protected «cooperative mutuality».
In other words, the CCBs - as much as they may consider themselves satisfied following the acknowledgment of their economic requests - they have lost, on closer consideration, a favorable opportunity to assert their requests to revisit a law which, according to the theses reported and according to a common feeling among them (perhaps much more widespread than actually manifested in institutional settings), negatively affects their essence as 'mutual banks', violating at the same time fundamental principles enshrined in the Constitutional Charter: from the freedom to associate to that of economic initiative.
I have already underlined elsewhere, commenting on the events relating to the intervention of Cassa Centrale Banca in the rescue of Carige (and the proposed assumption of control of Carige itself), that, in my opinion, even if over time, both the hypothesis and the reform of 2016 leads to a heterogeneity of the group, which was born as a "cooperative" and transformed into a "lucrative", thus realizing, even for the individual CCBs, if not a substantial abandonment of the mutual purpose, a marginalization of the same, absorbed and canceled by the exercise, by the parent company and the group as a whole, of an economic activity aimed at for profit purposes.
Therefore, the reasons that would have justified in this perspective, also in relation to the authoritative voices mentioned above, an intervention by the Court are evident, thus satisfying the felt need to shed definitive light on a normative reality which, for many, has drawn up a strategic reform plan which, beyond the petitions of principle, in concrete terms does not appear to be based on purposes consistent with those of mutual aid and with support for the development of local markets.
Facing the risk of a criticism aimed at recognizing in my words the intention of proposing a construction based on conspiracy theory, but comforted by the adage that "Thinking badly makes you sin, but sometimes you guess", I do not feel like excluding that the happy outcome of the good-natured settlement achieved in the aforementioned arbitration proceedings is also justified in the common interest of the two parent companies to avoid an examination by the Judge of the Laws of the discipline that justifies the existence of the same. That interest, could have acted from catalyst in the search for some form of conciliation of ongoing arbitral disputes.
All that, despite the consequent commitment undertaken by Iccrea Banca to pay over two hundred million for the redemption of the shares (net of offset items), a debt whose burdensome fulfillment, if on the one hand, was spread over a long period of time (perhaps making it necessary, as indicated by the specialized press, also the recourse to interventions by lenders outside the category), moreover, essentially put the rescue of Carige at the expense of the entire cooperative system (and not only of Cassa Centrale Banca).
The solution identified certainly appears to be consistent with the guidelines of the Supervisory Body which - in order to guarantee the system from possible disturbances that could undermine the balance – has always given priority to the objective of a "peaceful coexistence" between the members of the category.
Obviously, the awareness of the irreversibility of the mutation of the CCB system, by the Supervisory Authority itself solicited at the beginning of the current decade with the request for a "self-reform" of the members of this banking sector.
However, it cannot be overlooked that some aspects of the discipline, more than others, deserve reflection and perhaps even a corrective regulatory intervention (such as the one that led to the possibility for the provincial group of Trento and Bolzano to adopt the IPS scheme, indeed than that of the cooperative banking group); first of all the discipline of exit by the group, whose conditions (net of doubts about their legitimacy) make it substantially unfeasible, even in cases where the level of conflict between the parent company and some member banks has reached dangerous levels. Beyond the exercise of moral suasion or authoritative interventions by the parent company on the recalcitrant CCBs, it could be the Supervisory Authority itself that has blunt weapons if the best solution were a 'consensual divorce'.
In the meantime, only guarantee is that the Authority is vigil guardian the correct observance, by the appointed parent company, of the application guidelines of the disciplinary provisions that define the areas of the related interventions; avoiding that, in an undesirable delusion of omnipotence - which is not even based on the right to property, but in a mission that the law has entrusted to the parent company on a contractual basis - the managerial autonomy of the individual cooperative credit banks is sacrificed, in view of the pursuit of interests that may have little or nothing to do with the original mutual aims of the category.
