I struggle to clarify decisive aspects of the Monte dei Paschi affair. I read about derivatives or repurchase agreements; the derivative itself says nothing, if we do not know which contractual instrument it is derived from. It is said that the contract was segregated, also in Grilli's hearing; but a few days ago I read that the counterparty had ensured that the MPS board was aware of it: the data may be important for the purposes of the validity of the negotiation. More certainties must be awaited for a thoughtful evaluation.
Moreover, the MPS affair to characterize our institutions re-proposes a theme of general scope, which reappears with every crisis, e.g. in the events that have repeatedly affected Telecom (merger with Olivetti, exit of Tronchetti Provera); again when Profumo left Unicredito; we find it in the complex history of Unipol, Ligresti, Mediobanca. In the institutions that entrust the management of the economy to the market, the supervision of the legality of conduct is first and foremost in the civil actionability of the claims, on the initiative of those who, considering themselves harmed, propose an application to the civil judge: the true independent authority of the market. The private remedy is available to those who complain of the wrong, in order to remedy the damage they claim to have suffered; it is a sanction for those who should be convicted, but at the same time it satisfies the private interest of those who become creditors; it responds to the canons of commutative justice, not of retributive justice, such as administrative or penal sanctions. Through widespread civil actions, proposed by the interested parties themselves (shareholders, creditors, etc.), the invisible hand of the market organizes the supervision of legality; administrative surveillance becomes properly auxiliary to civil actions; the penalty is the last resort to protect counterparties from frauds that are difficult to detect by private actions alone. Let's imagine that in the Telecom affair the civil actions against the then managing director had physiologically unfolded; and so in the Unicredito or Ligresti affair. Let's imagine that the civil actions against the managers of Monte dei Paschi had found their normal development according to the demands expressed by the market, as in the US experience, with derivative shares, strengthened by the feasibility of class shares. How many knots would have already been resolved in the seat of civil trials, before arriving at the inextricable skein, today's mire!
Instead, with us, with privatizations, public economic bodies have been removed from formal administrative protection without, on the other hand, developing private law and civil jurisdiction in order to make the institutions suitable for the market. Thus the largest company is removed from the administrative discipline of the public body; but it is also practically removed from private discipline. On the contrary, with the recent laws the already insufficient private protections have drastically reduced: even the challenge of the assembly's resolutions has been drastically circumscribed; the challenge of the budget has been made difficult; the rights of the shareholders are reduced to farce: the convocation at the request of the minority and the judicial intervention for inspections; the detectability of conflicts of interest is practically nil, so as to allow, with the development of groups and with the agreements of the voting unions, top management hardly supervised by the shareholding structure widespread on the market; the difficulty of legal action frustrates the audit; information and financial statements remain polluted; the powers of the directors are reduced and in any case the interest in exercising them, their responsibilities being nullified. The governance of the company is concentrated in the CEO. The managing directors, presidents, directors, controlling shareholders, who are often other companies or entities, such as banking foundations, making management increasingly impersonal, self-referential, entrusted to people whose authority depends less and less on the investor market. In essence, the management of large companies remains a matter left to the personal ethics of the actors. But ethics is an individual feeling of the person; a responsibility towards oneself; it is not a rule that the company, the shareholders, the market can take advantage of.
Under these conditions, administrative controls, without market conditioning, develop into suffocating bureaucracy, whose functionality is rather entrusted to ethics than to law: Consob, Banca d'Italia, so-called independent Supervisory Authorities, etc. The authorities, without the shelter of jurisdiction (civil but also administrative), produce an overflowing secondary regulation, now often without regard to the legal foundation due to the insufficiency of the laws to decide the points of principle; develop moral persuasion in the relationship with the supervised according to a trend whose correctness is left to the morals of each one, due to the absence of formal observations: moral persuasion is intrinsically incompatible with the market, if not contained by legality which only ensures rapid justice of behaviors. In the matter of Monte dei Paschi who can tell us whether the Antonveneta operation was not stimulated by the long-held orientation towards Italianness of the previous Governor Fazio, this orientation also never formally decided by law or other political direction? Among the numerous press reports it was also said that Banco Santander would become a shareholder with the transfer of Antonveneta; then it was decided for the Italian nature of the Monte and the bank. As? Who decided? How did moral persuasion also work in identifying managers? And the price? If justified as an exchange ratio in the case of contribution of Antonveneta, was it still justified in cash? Today it is said that the current Monte leadership is a de facto commissioner: then moral persuasion is able to decide the appointments; it has already happened, how many times? Who answers? And the then price did not fall under moral persuasion. The practical non-existence of the market with civil actions leaves everything opaque and then to the pathological, extreme, and often casual intervention of the criminal.
Market surveillance entrusted to private remedies is the correct mechanism for separating private economic power from the political, administrative, or in any case informal authority powers that generate the exercise of the company, because it is established widely, on the private patrimonial interest of each not to suffer the injury, developing as a conflict between private interests, resolved by the judge in the jurisdictional process. While administrative supervision, released from biased impulses, can slip into abuses, if not fully regulated according to legal procedures that make it a bureaucratic authority, justified if it is an auxiliary of private defenses, not if it replaces civil jurisdiction, as in the case of we happens.
Today the question is not to review the powers of Consob, of the Bank of Italy, of the Ministry, as I read in Riva (La Repubblica), powers that are already robust. The question is much more complex and important. It means recreating market surveillance by redoing the private order based on the civil judicial authority, currently suffocated due to the lack of means, materials and personnel: one must invest in civil justice, to save on surveillance and on the obligations required by the cumbersome administrative regulation. There are no shortcuts. The alternative is the statism of the mixed economy, which cannot be proposed.
