La reform of public banks, launched by the Renzi government in 2015, is compatible with European law. This was established by the EU Court of Justice, called to express itself on the legitimacy of the reform after the appeals of some consumer associations and bank members.
According to the Community judges the limitations on repayments of membership fees of the popular banks are "legitimate provided that they are strictly necessary to ensure that the bank has sufficient own funds to counter its possible default, an assessment that is concretely up to the national judge".
The ruling brings the assessment of the adequacy of the asset ceiling, set at 8 billion, beyond which the popular banks are obliged to transform themselves into joint stock companies. The Court observes that EU law does not directly provide for obligations or prohibitions, but that this threshold implies "in principle", a restriction on the "free movement of capital". "Such a restriction - the judges continued - can be justified by the aim of guaranteeing greater competitiveness of the banks, their sound governance and, ultimately, the greater overall stability of the European banking and financial system".
However, according to the Court, "by limiting the importance of the economic activity which may be exercised by Italian banks incorporated in a given legal form, such legislation may dissuade investors from Member States other than the Italian Republic and from third countries from acquiring a stake in the capital of those banks and therefore constitutes a restriction on the free movement of capital prohibited, in principle, by Article 63 TFEU".
Il The proceeding will now return to the Council of State which, after a new debate with the parties, could unlock the reform on the obligation to transform into a joint stock company whose deadline has been postponed to 31 December 2020.
“Today's decision of the Court of Justice only reaffirms what we have always said – he declares Giuseppe DeLucia Lumeno, general secretary of Assopopolari - recognizing that the threshold of 8 billion violates one of the fundamental freedoms guaranteed by the Treaty and referring it to the Council of State, before which it will resume proceedings, to assess whether the principle of proportionality has actually been respected in the specific case. Indeed, the Italian judge is called upon to verify, among other things, as indicated by the Court of Justice, whether the Italian legislation which imposes the compulsory transformation into joint stock companies of cooperatives with assets of more than 8 billion euro is «suitable to guarantee the achievement of the objectives of general interest which it pursues and which does not go beyond what is necessary for their achievement". After all, it is quite clear – and we have always said it – that the setting of a threshold for becoming a cooperative bank, moreover so small and devoid of any legal basis, is unique throughout Europe”.
“Furthermore – continues the general secretary – placing the Italian cooperative banks in an incomprehensibly poorer position compared to similar European realities: the top 50 European cooperative groups all have assets far exceeding 8 billion euro, with an average to 160 billion. The hope, therefore, not only in the interest of the Category but of the whole country, is that in the continuation of the judgment before the referring Judge, the value represented by the freedom of enterprise, freely choosing among the different models recognized and envisaged by the juridical, finally find the right recognition".
