The phenomenon of shopping forum - i.e. the incorporation of Italian companies in other EU countries - is a serious problem for the Italian economy, which aggravates the structural underdevelopment of our capital market, in a phase in which this would be called upon to play a central role in the support businesses in the investment projects necessary to address the ecological and digital transformations and the challenges of strategic autonomy and shortening of supply chains posed by the geopolitical crisis.
Because large Italian companies go abroad
Problem that risks becoming dramatic when it involves industrial enterprises of particular importance (once they would have called themselves "national champions"), both for the strategic value of their activities and for their growth potential. Moreover, the transfers of industrial companies abroad involve the risk that, if they are followed (as often happens) by the moving abroad also of the listing market, the Italian list becomes even more concentrated on financial companies and, in particular, on banks, making it more exposed to fluctuations in their market prices.
THEabandonment of the Italian system, albeit in the limited forms of the transfer of the registered office (today particularly facilitated by the Euro-Community institution of cross-border corporate transformation introduced by EU Directive 2121 of 2019 and transposed into our legal system by Legislative Decree 19 of 2023) or of the listing market (listing shopping ), has in fact a systemic impact that grows over time: with the registered office or the listing market, an entire slice of the ecosystem is transferred, made up of high quality and high added value activities, which are both within the companies concerned and in the world of professional service providers who gravitate around these companies.
The flight of companies from Italy: it is a problem of governance rules rather than taxation
The flight of companies from Italy depends not so much on tax arbitrage but on governance rules and vigilance.
The reasons for transfer to Holland of the many listed Italian companies do not reside so much in assessments of tax arbitrage, although the onerousness and unpredictability of Italian taxation on companies is certainly a serious problem, much less in the strategic need to assume a greater international vocation, although undoubtedly other country systems, such as the Netherlands, offer clear competitive advantages compared to the Italian system.
Rather it is forum shopping, i.e. the possibility of adopting the corporate rules and the supervisory model of the destination country, to represent the primary driver of corporate relocation choices. Corporate rules and supervisory model which, although totally in line with European harmonization and therefore certainly not definable as "corporate havens", are perceived to be more in line with the growth needs of companies than the Italian ones.
Among these there are certainly those on the increased vote, which allow you to configure the use of this tool with much more flexibility and breadth, but also:
- the rules on director appointment system, basically left to statutory autonomy,
- those on quorum for the extraordinary meeting, which provide for a simple majority if more than half of the share capital is present, as on the other hand the European directives allow,
- those on OPA, which allow for more effective defense tools against hostile takeovers,
- le prospectus approval procedures, which allow greater speed and predictability of times, a necessary condition to be able to seize the appropriate "market windows", and a reduction in costs through leaner prospectuses (on average 200 pages against an average of 400 pages in Italy).
The Italian corporate system is less competitive than the Dutch one: it needs to be reformed
They are all aspects where the the Italian system is not only less competitive compared to the Netherlands, but also misaligned with respect to the other main European and non-European countries, due to a systematic recourse to gold-plating, in legislation and in supervisory practices, in the areas covered by European harmonization, and due to an accumulation of specific rules, adopted in phases of particular delicacy for the Italian market, and which today could be reconsidered.
The objective should certainly not be to compromise the protection of savings, but on the contrary to concentrate this protection on truly relevant phenomena: creating a regulatory system that reduces the risk of our companies moving abroad would in fact allow to safeguard those virtuous components of our system which, applying only to Italian companies, are instead nullified with the transfer abroad.
Think about transactions with related parties which in Italy has a discipline that is rightly much stricter than in other European countries, including Holland. Or the Corporate Governance Code which in Italy requires behavioral and transparency standards not present in other countries and certainly not in the Netherlands.
Nor does concern about the situation seem justified loss of contestability of control which would arise with the enhancement of the increased and multiple vote. In fact, these tools would be used above all by companies that are already non-contestable, so the only effect would be to move from a situation of non-contestable companies that give up on growing to a situation in which these companies, remaining non-contestable, can grow . The market will then evaluate the actual ability to translate this potential into actual growth.
Not surprisingly, however, the 9 Italian industrial companies that did forum shopping in the Netherlands they have seen this strategy rewarded, seeing on average the total stock market value multiply by 3 (from 50 billion to over 150 billion) and while remaining the vast majority listed on the Milan market. Forum shopping activities in the Netherlands are associated with greater activism on the front of acquisitions by companies that transfer their registered offices there. An evidence that seems to go hand in hand with the greater valuation on the market precisely by virtue of the fact that these family-owned companies, thanks to mechanisms such as the increased vote, strengthen and multiply the strategic growth options, thus often being rewarded by the market.
Assonymous therefore believes that the problem of companies abandoning the Italian system cannot be underestimated and that the concerns regarding a low competitiveness of the Italian capital market are well founded and require urgent corrective actions.
This problem can be addressed through a structural reform of the regulatory framework and supervisory approaches, with respect to which recent government initiatives are only a first step, important but not exhaustive.
Increased vote and multiple vote: how to change them
The current regulation of increased and multiple vote, introduced in 2014, was a first step for the Italian legal system towards overcoming the "one share-one vote" principle and promoting greater competitiveness on the domestic market.
To date, increased voting has been adopted by a significant number of listed companies (70), while multiple voting has met with decidedly more limited success (6 listed companies). Despite the still limited possibility of strengthening voting rights currently allowed, recently listed companies nonetheless look with interest at this growth tool: almost two-thirds of listed companies in the last five years have adopted increased voting rights (18) or the multiple (4).
One of the most limiting aspects of the current discipline of increased voting and multiple voting appears to be excessive limitation of the multiplication factor (respectively 1:2 in the increased and 1:3 in the multiple) which does not appear sufficient to incentivize a company with a strong ownership concentration to place a significant part of the share capital among the public and, therefore, to support its growth.
In the light of these considerations, Assonime agreed with the proposal contained in article 13 of the bill to modify the current regulation of multiple votes (art. 2351 of the civil code) by raising to 10 the multiplication factor that can be introduced by unlisted companies in view of the listing: this is a concretely functional measure to favor the listing of companies that are still struggling to profitably use the capital market and which appears to be consistent with the needs of greater competitiveness of our legal system indicated above and with the indications of the Green Book of the MEF .
At the same time, however, it is deemed appropriate to complete this proposal with a complementary measure, aimed at responding to the needs not only of companies about to be listed but also of those already listed on the domestic regulated market. The latter - in the absence of an appropriate strengthening of voting rights - are precluded from potential extraordinary operations functional to growth and the creation of value in the long term, unless they are carried out - as practice teaches - through the migration towards systems that already offer these voting empowerment tools. Moreover, the recent harmonization of the European rules on cross-border corporate transformation (implemented in Italy with Legislative Decree 19 of 2023) has in fact made it completely free choice of company law to which to subject companies by making these voting enhancement institutions present in other European legal systems very accessible.
On the basis of these considerations, Assonime expressed itself in favor of expanding the content of article 13 of the bill, currently focused solely on the regulation of multiple votes, with a proposal to reform the increased voting system, increasing the multiplication factor from the current 1:2 to a maximum of 1:10, thus aligning with the proposed enhancement of multiple voting.
This proposal responds to the concrete need to also provide already listed companies with the possibility of using a more competitive regulatory framework, capable of facilitating its growth through an instrument which, at the same time, also ensures equal treatment of shareholders. As known, in fact, the increase in voting rights does not constitute a category of shares but is linked to the holding of shares (loyalty shares) and is, as such, available to all shareholders.
Widen the increased vote and the multiple vote through the opt-in system and not the opt-out
The further strengthening of the plus vote with a increase of the multiplication factor from 2 to 10, could be introduced through a rule that allows companies to provide statutorily (Opt-in) the possibility of increasing the vote increase in relation to the extension of the holding period of the shares with an incremental ratio of, for example, 1 vote every 12 months of holding, up to a maximum of 10 votes per share, thus leaving total statutory autonomy to the companies regarding its introduction (unlike the French model where it was introduced ex lege with opt out clauses) and always introducing important limits for the law for its exercise in compliance with a principle of protection of minorities.
