Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Abstract: Between 2015 and 2016 the cooperative banking system, that is a substantial part of the banking activity carried out in Italy, underwent an important transformation through the promulgation of the Legislative Decree no. 3 of January 24, 2015 (converted into law by Law no. 33 of March 24, 2015) relating to the Popular Banks and through the Legislative Decree no. 18 of February 14, 2016, (converted into law by Law no. 49 of April 8, 2016) relating to Cooperative Credit Banks. In particular, with reference to the reform of the Popular Banks, other than the size limit exceeded which the ‘Banca Popolare’ structure can no longer be used, what has provoked discussion the most is the rule providing for the possibility to limit the right to withhold reimbursement of the shares in the event of withdrawal, also by way of derogation from the law, if this is necessary to ensure the inclusion of the shares in the Tier 1 regulatory capital of the bank: the Board of Directors, responsible for the strategic supervision activity, has to evaluates this option taking into account the prudential situation of the bank. A very long and very complex dispute, which came to an end, or rather – as explained in the article – which did not end with the judgments of the Court of Justice 686/2018 of 07/16/2020 and of the Council of State no. 4169 of 31.05.2021, has arisen from the reform of the Popular Banks. Beyond the judicial news headlines, what emerges from what we could call – quoting Jhering – a “fight for the right”, is that, on the one hand, whenever the legislator intervenes by sacrificing the rights of individuals for the benefit of the community, it is almost given that the highest national or European courts (Constitutional Court or Court of Justice) are called to balance the opposing interests, ending however by degrading those subjective rights to a sort of ‘legitimate interests’. On the other hand, from a commercial law point of view, it seems clear that the shareholders’ right of withdrawal as provided for in joint-stock companies provisions by article 2437 of the Italian Civil Code, in the context of banking law undergoes a substantial change as regards the conditions under which the right may be exercised and, therefore, also the role of the shareholders in these banks will probably change having no longer the same exit right than the shareholders of other commercial companies and of other banks have. Again, from this courts case clearly emerges the leading role of the discipline of banking crises and resolution tools in guiding both the legislator and the judge: the need to promptly implement any recapitalization needs and therefore facilitating access to new capital on the market is repeatedly reiterated by the courts to legitimize the reform of the Popular Banks (the usual fil rouge of ensuring the stability of the banking and financial system in order to avoid systemic risk). Finally, and this is the following that can be glimpsed in the ruling of the Council of State in question, the change in the discussion from the legitimacy of the legislation to the responsibility of the directors and the analysis of the prudential situation of the bank, that they are called to do to legitimize the limits to the reimbursement of shares, seems peculiars considered that all the banking management regulations are based on sound and prudent management and therefore on the so-called risk-based approach: what autonomy and freedom of choice can the directors have in general and in particular in the decision to limit the reimbursement of the shares?  

Sommario: 1. Premessa: i temi emersi. – 2. Lo sviluppo processuale. - 3. La sentenza della Corte di Giustizia: il limite agli 8 miliardi di attivo. – 4. Segue: il limite al rimborso delle azioni. – 5. Segue: una possibile critica. – 6. La sentenza del Consiglio di Stato: il limite degli 8 miliardi di attivo. – 7. Segue: i limiti al diritto di rimborso delle azioni in caso di recesso. - 8. Segue: alcune considerazioni sulla responsabilità degli amministratori e sul diritto delle crisi bancarie.

Keywords: Banks — Cooperative banks — Italian bank system — Director’s liability — Shareholders’ rights — Human rights — Bank’s crisis.