ARTICLES and NOTES - Notarius International

202 F. Tassinari, Reform of the limited liability company in Italy Notarius International 3-4/2002
that have to be fulfilled (Deed of Formation, amendment
of the Deed of Formation, transfer of quotas, extraordinary
operations etc.) and of the rules of governance (distinction
between decisions of the members and of the directors,
the majority principle in decision-making, the
free transferability of quotas by inter vivos deed and on
death etc.).
In summary therefore, all the main innovations that
have been introduced require specific choice in the exercise
of private autonomy (direct attribution of management
of the business to the members, non-collegiate decisions
of members and directors, rules of administration
of separate or joint type, the use of the new concepts of
agreed withdrawal of exclusion of member by just cause,
membership on the basis of work provided etc.) with the
consequential transaction costs for members interested in
such provisions.
In addition, the legislature considered it necessary to
include a number of mandatory provisions in the new
law governing the S.r.l. protecting interests deemed to be
functional either to achieving its legislative policy objectives
of „promoting the type“, or in ensuring propriety in
the conduct of business activities leaving aside the fact
that the first aims do not always seem to be easy to reconcile
with the second.
This has happened in particular, not only with reference
to the protection of special interests (e.g. the mandatory
rules governing the withdrawal of a member drawn in decidedly
wider terms than the preceding provisions, the
rules for the payment of departing members drawn in
more rigid terms and again, providing greater guarantee
to the member concerned, the member’s right of information,
the right to hold the Directors liable etc.) but also
with reference to the protection of external interests (direct
liability in some cases, of the member him or herself,
almost as if to breathe new life into the historical name
„limited liability company“ and the widespread use of the
concept of opposition by the creditors). Again there is
concern for the protection of interests that can be defined
as general in nature (e.g. deferral of financing from
members in situations where the company is in financial
difficulties). Indeed, this is such a marked characteristic
that there has been talk in the academic literature of „poisoned
pills“ dropped into the reform plate. It may indeed,
have the effect of stimulating a migration from S.r.l. to
S.p.A. in the form of a flight from the former type rather
than a positive choice of the latter.
4. Conclusion: Private autonomy as "Leitmotiv" of
the reform of the Italian S.r.l.
From the above reflections and in summary, the „new“
S.r.l. would seem a little less „new“ with respect to the
earlier version than the comparison of normative provisions
and the emphasis of a number of declarations of
principle expressed during the preparatory works and in
the academic literature might have lead us to believe. It
seems, more than anything else, to represent an acceptance
of the interpretation based on the typological
method introduced by doctrinal teaching and described
in the preceding section, as the authentic interpretative
method. In effect this means the transposition of the hermeneutic
plane to the legislative plane with the undoubted
benefits flowing from such an approach in terms of
certainty of the law, and of the idea of flexibility and excludability
characteristic of the entire structure under
consideration.
In a word therefore, it seems to represent a long-overdue
up-dating of the legislation after more than sixty years.
We are bound to add though, it also seems that such
transposition introduced by the reform, has a sting in the
tail justifiable in the light of a number of traditional convictions
(drawn particularly from the literature) developed
in a cultural context where the wide ranging use of
mandatory provisions is seen with favour – e.g. the extensive
use of inderogable withdrawal, strong emphasis on
the procedures for attaching liability to the directors and,
with the reform, on the members as well, etc. This is some
way from the efficiency-based, economic concept which
had rightly been chosen as the banner of the reform 26 .
The objectives of the reform of the S.r.l. were thus dual
in nature.
Obviously, the time will come when it will be possible
to demonstrate whether these two elements referred to
above can be brought together in a rational and effective
manner. It will then above all, be possible to see whether
the decisions made by the legislature are popular with the
operators in the field, permitting, in whole or in part, the
pursuit of the legislative policy mentioned above.
We must also wait to see, in the absence of clear commitment
by the legislature, the extent to which the new
S.r.l., undoubtedly distanced from the S.p.A., has in reality
come closer to the personal company.
For the moment though, it appears possible to reach a
preliminary conclusion. The undoubtedly innovative
character and significance of the opening proposed by
legislature towards private autonomy has thrown down
an important challenge to theorists and operators alike.
This challenge must be met in the knowledge that a proper
evaluation of the new form of S.r.l. can only be effected
if the interpreter is able to free him or herself from the
inertia deriving from the knowledge of the long application
of the old laws and old principles (e.g. equality of
treatment of the members, the bar against the member
taking on obligations other than the conferral of money or
money’s worth or possible accessory services etc.). They
must be prepared to experiment with new solutions leading
to the necessary consequences of that opening towards
private autonomy which undoubtedly represents
the Leitmotiv of the reform of the S.r.l. in Italy.
26 What has been noted in the text must obviously be seen merely as
such. It is not intended in any way to be a "premature" negative judgment
of the reform. Indeed, the decision to introduce a number of
specific, almost compulsory, mandatory provisions which did not appear
in the previous legislation, may well prove to have been justifiable
if it leads to the elimination of the deplorable approach (of which
not only case law but also academic literature and the operators themselves
have been guilty) described in the words of an eminent commentator
as that of "postulating a clamour of inderogable rules in the
defence of the most evanescent and imagined general interests." (F.
d'Allessandro, Il diritto pretorio delle società a mezzo secolo dal codice
civile, in Diritto giurisprudenziale, edited by M. Bessone, Turin,
1996, p. 237)