The joint-stock company has two faces: limited liability to the contribution and incorporation in the shares of the shares. This makes it an instrument for financing businesses with the collection of widespread savings and an instrument for concentrating power.
The centuries-old experience shows us as a starting point the control over the company, to be entrusted to the private interests involved, in the absence or with the assistance of the Authority. Different configurations follow. The first requires the sophistication of private law and widespread remedies in defense of the shareholder: management control is entrusted to the market, effective competition discipline is strengthened, in compliance with the rule of inefficient company bankruptcy.
The alternative way consists in public intervention, typical of so-called mixed economies: the State participates through direct or indirect control of the sources of financing, so as to modulate, according to the conditions of the economy, the constraint which physiologically binds the company in the competition and insolvency risk.
The discipline of the code was satisfactory for family companies, with a limited share base. It is no coincidence that, in line with the teaching of Tullio Ascarelli, the legislative proposals and interventions of the 60s and 70s concerned companies with a widespread shareholder base. The 2003 Reform, on the other hand, profoundly intervened precisely on the common discipline (although the most significant interventions concern the major companies also subject to the rules of the financial markets).
Among the novelties of the Reform we first of all mention the concentration of management in the managing director. This political choice, supported by the special legislation, with the – for the moment weak – exception of the banking companies, is a consequence of the weakening of the controls on the manager. Consider, in this regard, the formal abolition of the supervisory duty of the board, which redistributes the burden of proof of culpable negligence and favors the inertia of the directors, and the weakening of the prohibition for the director to decide in conflict of interests with the elimination of the related penal sanction. Thus, on the one hand, the penal regime has been seriously compromised, on the other, the opportunity has not been taken to strengthen the prime minister, making him an independent representative of the delegate, endowed with organization, information power and control also on the merits ( Bruno Tabacci's proposal to that effect was rejected).
Always with the effect of strengthening the position of the board, of the delegate and, ultimately, of the majority that supports him, the Reform has reduced the powers of the assembly and weakened the rights of the shareholder (participation, challenge of the assembly resolutions and compensation of the harm).
Moreover, by reserving the main protections for shareholders with a vote, he has left the others at the mercy of the controlling majorities - even very small compared to the amount of the share capital - which they manage at the risk of all the shareholders, even those without a vote or with limited vote (the imbalance could be even more serious with the contributions of the so-called financial instruments of which, however, we have no experience).
Voting syndicate pacts are valued, which favor the formation of stable structures for the control of groups of companies; the regulation of voting proxies, curiously more rigid for family companies, is characterized by confused and incomplete rules which in fact allow the controlling shareholders to hoard the votes; the openness to the "derivative" liability action against the director is limited, just as the action in favor of the shareholder of a subsidiary company against the parent company for abuse of domain is of little significance; the centralization of powers in the delegate is then strengthened in the dual system (so-called dualistic).
Attachments: The reform of company law – Gustavo Visentini's report
