The constitutionality doubts raised by several parties (ABI, Assopopolari, etc.) raised with regard to the recent "bank resolution" interventions, which indiscriminately place the economic burden of banking crises on shareholders and creditors (bondholders, qualified depositors, etc.), are fully confirmed by the orientation of another EU country; we are referring to the recent sentence of 3 July 2015 of the Austrian Constitutional Court (G.239/2014 AU, V14/2015 AU). According to this Court, a law which, in the event of a crisis, extinguishes the rights of subordinate bondholders of a bank or cancels the guarantees given in their favor is contrary to fundamental national and Community constitutional principles, and must therefore be repealed. As a result, the law on restructuring measures of Hypo Alpe Adria Bank International AG (HaaSanG), which decreed the zeroing of the value of subordinated bonds and the extinction of the guarantee given by the Land of Carinthia in their favor.
The story of the aforementioned Austrian bank is, therefore, of considerable importance for assessing that of the four Italian banks (Banca Marche, Etruria, Ferrara and Chieti), which - as is known - led the Government to issue a decree law for their " rehabilitation”, the subject of the recent controversies that are shaking the banking system.
On closer consideration, the decision of the Austrian Court lays bare the crucial point of the entire regulatory system (Community and national) of "bank resolution" (singular euphemism that hides the reference to the "crisis", the actual object of the so-called "resolution" ), with which the cost of the bank recovery is charged to the shareholders and some categories of creditors. In the 'Italy case' the transposition of Community legislation (Directive 2014/59/EU and Regulation (EU) No. 806/2014 of the European Parliament and of the Council) at national level (Legislative Decree 16 November 2015 Nos. 180 and 181 ) occurred by emphasizing that in the event of instability or even just a "risk" of bank instability, the resolution authority can adopt provisions with which the subjective rights of shareholders and those of some categories of creditors are "reduced or converted ” (through the “bail in”, articles 17, 51 and 52 of Legislative Decree 180/2015).
In Italy, as in Austria, the application of these provisions was implemented in advance, with the imposition of Community-based measures by means of laws-measures which led to the substantial expropriation of those rights. In the second, the unconstitutionality of the provisions was declared due to the opposition of the incriminated legal and regulatory provisions both to the principles of the Austrian Constitutional Charter and to art. 17 of the Charter of Fundamental Rights of the EU, which guarantees the right to property (“Every person has the right to enjoy ownership of the goods he has legally acquired, to use them, to dispose of them and to bequeath them. No person can be deprived of the property except for reasons in the public interest, in the cases and in the manner provided for by law and against the timely payment of a just indemnity for the loss of the same.The use of the goods can be regulated by law within the limits imposed by the general interest."). The Austrian Court therefore considered constitutionally illegitimate, for violation of these fundamental principles, the elimination ex lege of the property right of the creditors of Hypo Alpe Adria.
This important jurisprudential precedent leads us to evaluate the constitutional legitimacy of the analogous Italian discipline, contained in the decree law of 22 November 2015 n. 183 and in the discipline of resolution of (crisis of) banks (legislative decrees 180 and 181 of 2015), even before in the light of the constitutional provision that protects savings (art. 47 of the Constitution), on the basis of the general principles in matter of safeguarding private property (Article 42 of the Constitution and Article 17 of the EU Charter of Fundamental Rights).
The object of the protection of these rules is not only the "real" right (the "property" referred to in art. 832 ss. of the civil code) but the broader set of "subjective rights" of citizens; that is to say the set of rights, real and obligatory, which constitute its patrimony. In the Constitution, in fact, the expression "private property" is a summary formula, which - as the constitutionalists teach - "summarizes the set of patrimonial rights attributable to the private subject" (Baldassarre). Therefore, not only corporate participation rights (shares, financial instruments, etc.) fall under the aegis of constitutional protection, but also credit rights (pure or subordinated bonds, loans, deposits, etc.), due to of common patrimonial nature. All these rights are guaranteed by the fundamental principles of the European and domestic legal system, which place precise limits on national legislators: in fact, laws and regulations can deprive citizens of their property only where there is a "cause of public interest, in cases and in the manner prescribed by law” and only on condition that that sacrifice is compensated by the “timely payment of a just indemnity” (see art. 17 of the Charter of Fundamental Rights, cit.).
For clarity of reasoning, it is necessary to clearly distinguish two different forms of elimination or restriction of those rights:
a) on the one hand there are the "natural" methods of extinction caused by endogenous dynamics (resulting from factors of a private nature), such as satisfaction, renunciation, limitation, etc., or by external factors, governed in general by the legal system (think of the insolvency of the debtor, for credit rights, or the resolutions to reduce the capital or the extinction of the company, for shareholding rights). These are phenomena whose control, in terms of legitimacy, is presided over by the Ordinary Judicial Authority;
b) on the other hand, there is their "reduction or conversion" as a result of an act of the authority, be it the law (as in the case of the four Italian banks) or an administrative provision (such as that provided for by the discipline of the " bail in"). In this different hypothesis, those modifications (or even the compulsory extinction of “private property” rights) are determined in an authoritative way, independently of the private mechanisms and of the control of legitimacy exercised by the Ordinary Judicial Authority. The interventions in question, in fact, are directly attributable to the will of the State, whose power is supported by the constitutional guarantees referred to above. Regulatory or administrative intervention, which aims to degrade the subjective right to a mere legitimate interest, finds an insurmountable limit in the fundamental principles of the Constitution and in those of the EU, as well as international treaties, such as the European Convention on Human Rights .
If the provisions recently adopted by the Italian regulator are examined in the light of these principles, it appears conceivable that, also in the 'Italy case', the conditions for an intervention by the Constitutional Court, similar to that of the Austrian High Court, are met. And indeed, even in our country, in this case, there are forms of expropriation that determine the compression of individual rights, leading to an emptying of the prerogatives and economic value of certain juridical positions; therefore, it is necessary to verify the conditions (cause of public interest, in the cases and in the ways provided for by law, and timely payment of a just indemnity) in the absence of which the legislation in question could be declared illegitimate.
To these perplexities others can be added with regard to the more general issue of the "bail in". We are referring to the circumstance that the intervention of the resolution Authority seems to be available even in the presence of a mere "crisis risk", the prevention of which (and the consequent rescue of the banking company) is intended to be compressed and weakened of the “property rights” of shareholders and qualified creditors. Doubts of constitutional legitimacy also arise on this aspect, given that it would allow the sacrifice of the stakeholders even in the hypothesis of a mere "possibility" of the collapse (since the mere hypothetical nature of the event is inherent to the notion of "risk", and therefore of the public interest in the rescue); hence the evanescent identification of a real public interest to be protected through the application of 'resolution plans'.
