ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 F. Tassinari, Reform of the limited liability company in Italy 197
personal aspects and, above all, through its elimination of
any circumstance when the member would be liable to
the company’s creditors for the company’s debt 5 .
The Germanic and French models were already beginning
to spread through Europe and other continents before
the outbreak of the Second World War. The countries
affected included Belgium (1925), Switzerland (1936),
together with East European and African countries 6 .
After the Second World War the model was taken up by
Spain (1953) 7 by Greece (1955), Holland (1971) and
Denmark (1973), in these two latter cases, as a consequence
of their entry into the European Community.
Keeping within European boundaries, the „S.r.l.“ model“
remained largely unknown in Scandinavian countries.
The share based company model was particularly
flexible in these countries (in Sweden aktiebolag) 8 , so a
need for the introduction of this further company type has
not been particularly felt until now.
Finally, a model of the limited liability company has had
unexpected success over the last 25 years in the legal systems
of the United States where the European model represented
the reference for the introduction of the „Limited
Liability company“. It can be distinguished from corporations,
in their forms both of publicly held corporation
and of closely-held corporation, by the greater importance
given to each individual member in the management of the
business activity and by their simplified rules of formation
and operation. In particular, the „limited liability company
(llc) was first used in the State of Wyoming in 1977. It is
now part of the law in all 50 U.S. states (apart from the
District of Columbia). Some of these states (including Delaware
and New York) include provisions validating the existence
of sole member companies 9 .
1.2. Choices made by the Italian Legislators of 1942
The „S.r.l.“ model started life in Italy, as is well known,
with the entry into force of the Italian Civil Code in
1942. The 19th century Commercial Code had envisaged
three forms of commercial company: the collective, the
„accomandita“ a kind of limited partnership and the
company on shares.
In the preparation of the Code account was taken on the
one hand, of the positive experiences of foreign countries
which had introduced the Germanic model with a more
advanced capitalist system than that existing in Italy. On
the other hand account was also taken of the difficulties
which had been encountered in the attempts to widen the
scope of application of the Italian anonymous company
on the basis of the existing model, particularly after the
unpopularity of the quota-based anonymous company instituted
in the 1882 Commercial Code 10 .
1.2.1. Bills Vivante and d'Amelio of 1922 and 1925
The success enjoyed by the foreign models to which
reference was made in the preceding section, had lead to
the creation of a school of thought in favour of the introduction
of a new capital based company in Italy as early
as the period marking the immediate aftermath of the
First World War. The idea was that such a form would be
better adapted to the requirements of smaller businesses
as distinct from the anonymous company, following the
drawing up of an autonomous body of law permitting a
clear differentiation to be made between the two types.
This was the essential thrust of the 1922 Vivante Bill.
The importance was noted (in the context of a new type of
„company limited by guarantee“) of promoting „the association
of a small number of members wishing to have a
more or less wide-ranging involvement in the company’s
management without exposing themselves to the risk of
unlimited liability (as in the collective company) and
without putting themselves into the hands of a manager
who may then become the company’s effective owner (as
in the „accomandita“ type)“ through the new legislative
scheme proposed, emphasising in this way the view of the
new form as a type more related to the personal company
rather than that based on share capital 11 . Then there was
the D’Amelio Bill of 1925. This proposed something
along similar lines, using the same name, although in fact
it was very different from the share model (e.g. reservation
of administration by one or more members, requirement
of unanimity for amendment of the Articles).
1.2.2. Bill Asquini of 1940
With the failure of the various bills put forward during
the 1920s, there was a significant change in perspective
in the context of the preparatory work for the unitary Civil
Code of 1942 with the Asquini Bill of 1940. The „Società
a responsibilità limitata“ (limited liability company)
– given this name in recognition of the most common
name abroad – „was intended as a substitution for the
company with shares where the latter appeared to be too
complex a body for a company business of modest size.
It is precisely because the body is small that greater
weight is given to the member which he cannot have
within the structure of the company with shares“ 12 .
The view expressed by the majority of the literature on
the subject 13 was in agreement that the Asquini Bill was
a step backwards with respect to the earlier bills proposed
5 For a comment on this historic model cf. J. Tabet, Les sociétés à resposabilité
limitée en France, Paris, 1955; For an up-dated summary
of the current S.r.l. in France however cf. B. Petit, Droit des sociétés,
Litec, 2002, p. 135 et seq.
6 For references, cf. G.C.M. Rivolta, op. cit., p. 14 et seq.
7 In Spain the subject was regulated ex novo by the law 2/1995 de 23rd
March of Sociedades de Responsabilidad Limitada (LSL), which can
today be taken as one of the Community models most suitable for the
assessment of the Italian reform (on this question, cf. F.C. Chulia, Introducciòn
al derecho mercantil, Valencia, 1998, p. 437 et seq.).
8 Cf. I. Zoogling, Schwedisches Gesellschaftsrecht, in Gesellschaftsrecht
in Europa, edited by M. Eiselberg, Vienna, 997, p. 245 et seq.
9 Cf., W. Burnham, Introduction to the law and legal system of the
United States, West Group, 1999 (II ed.), above all at p. 532 et seq.
(Business law), p. 550 et seq.
10 See G.C.M. Rivolta, op. cit., p. 24
11 Relazione al progetto, edited by A. Asquini, cit. in G.C.M. Rivolta,
op. cit., p. 26.
12 Relazione del Guardasigilli al Progetto ministeriale del codice di
commercio, Rome, 1940, p. 97.
13 F. Cavazzuti, Società a responsabilità limitata, in Noviss.dig.it., Turn,
1971, p. 7; G. Santini, op.cit., p. 9 et seq.; A. Brunetti notes in particular,
in Trattato di diritto delle società, Milan, 1948 - 1950, vol. III;
p. 10 et seq., that the main reason for the move backwards was the
decision not to set up the S.r.l. as an autonomous form, an intermediate
type between the collective and anonymous company. This was
on the basis of the (political) objective to give small businesses a
structure similar to that of the share company with the new law.