Several years ago the then president of Consob, Franco Piga, upon my observation that the power that the Authority asked of Parliament was already included in the law in force, explained to me that with the drafted amendment the rumors spread by the press of presumed inertia, as it was implicitly said that in fact the requested power did not exist.
Banking Supervision has widespread and appropriate powers on the basis of the legislation in force: to commission the company; compulsory liquidation; convocation of representatives, auditors. It evaluates the requirements of professionalism and also the honourability, which moreover has taken on a very restrictive meaning in the profile of the suspicion of criminally relevant behavior (Ministerial decree of '98; at the time the influences of particular situations had been overshadowed).
It would be very unlikely that, following specific and reasoned findings from the Supervisory Authority, taken up by the statutory auditors, the representative involved would not resign from office. In this context, it seems to me that the provision "attributing to the BoI the power to remove the corporate representatives of intermediaries when their tenure in office is detrimental to sound and prudent management" adds little. As often happens, the competence indicated in EU directives is already in our system.
Rather, the Supervisory Authority urgently needs to restore and strengthen the private instruments to guarantee the orderly conduct of corporate governance, already insufficient, and then so debased by the Reform of companies, as to render practically useless: the board of directors, the so-called independent directors, auditing, the board of statutory auditors itself. In order for the market, first of all, to carry out the controls in the specific interest of the shareholder, it is necessary to: accentuate the supervisory duty of the board by re-proposing the civil liability of the exponents to be enforced with individual and class actions by those who claim the damage; responsibility must be fully emphasized in the event of conflicts of interest, understood in the extended meaning that we find in the common law of the mandate; the mechanisms of the tests must be rethought.
In the latter discipline, the responsibility of the auditor is evanescent; we must go back to the original provision of the certification of the financial statements, with which the auditor pledged his trust in the sincerity of the financial statements, so that in the event of irregularities he is responsible for proof of having carried out the assignment with that appropriate diligence which only excludes liability. The rights of shareholders, of minorities to request inspections, to challenge resolutions, to convene meetings, to promote liability actions, are not an obstacle to the manager's initiative; instead they are the mechanism to stimulate company representatives to maintain their independence of judgment also, and above all, towards the majorities. Legality is not a hindrance.
The civil process is the first control of the government of the company; the judge is the independent authority of the market. The degradation of this competence, in legislation and in experience, is the main reason for the disorder we are witnessing. In a state governed by law, substitutes are unthinkable. In a system that wants, and must be rooted in the market, the diffusion of civil litigation serves the supervisory authorities, and limits their function to the appropriate competence.
The dysfunction of the civil trial envelops the company in an administrative fabric of rules and sanctions which in their hypertrophy confuse administrative and corporate responsibilities; they degrade management in the bureaucracy of public services, without having the characteristics; it then ends up entrusting to the criminal judge what would be better dealt with in the civil conflict, with results that also degrade the market. There are no alternatives. We must restore the full functionality of civil jurisdiction in terms of society and the market, in terms of quality and timing; we must invest thought, projects, means and legislation on the civil process.
