ARTICLES and NOTES - Notarius International

198 F. Tassinari, Reform of the limited liability company in Italy Notarius International 3-4/2002
during the 1920s. The new model was strongly dependent
on the share form in that the main personal elements
contained in the earlier bills were abandoned and, indeed,
some of the new aspects finalised on the launch of the
new company type were then also extended to the share
company.
The Bill’s punctum dolens however, then introduced into
the Code provisions was above all, the renunciation
of a truly autonomous legislative scheme for the S.r.l.
This was because the legislative technique used for each
different element, was a generic reference („so far as
compatible“) to the rules laid down for the corresponding
aspect of the share company for all matters not expressly
provided for in the related sedes materiae 14 .
Furthermore, with the final approval of the final text of
the draft of Book V of the Italian Civil Code, other new
distinctive aspects of the S.r.l. as against the share company
were withdrawn (e.g. maximum limit of capital,
registration of quotas in the Business Register and subsidiary
liability of members on the basis of the German
model etc.). Such changes were based on the legislature’s
second thoughts, often of a hurried nature 15 . On the other
hand the reference to the rules governing the share
company as a whole (so long as compatible) were eliminated
with the insertion instead, of a number of specific
references to individual Articles or, indeed, individual
paragraphs of specific Articles.
In conclusion therefore, in the final text of Articles
2472 et seq. of the Italian Civil Code, the S.r.l. is undoubtedly
presented more as a small company with
share capital than a new intermediary form situated
somewhere between a company with shares and a personal
company. The only clear difference with respect to
the reference model is the bar against the issue of shares
(and of debenture stock) and the autonomous legislative
scheme dealing with the quota share which such bar implies
of necessity.
2. The Evolution of the S.r.l. and attempts at its
emancipation from the share model
2.1. The failure to exploit the particular qualities of
the S.r.l.
The final version of Articles 2472 et seq. of the Italian
Civil Code of 1942, with the extensive sequence of references
to the rules governing the S.p.A. (the share company)
such rules thus governing both forms, has had a
lengthy influence over Italian doctrinal teaching, case
law and operators in the field generally. It has induced an
almost completely uncritical acceptance of the direction
traced by the drafters of Book V of the Civil Code.
Apart from the absence of shares and the consequential
need to draw up a complete theoretical framework for the
concept of the company quota and its various transformations,
the legal characteristics peculiar to the S.r.l. legislative
scheme have been essentially minimised (size of
quotas for General Meetings under Article 2486(1) of the
old text of the Civil Code, company rights in the event of
capital reduction due to losses under Article 2494(3) of
the old text), to say nothing of those occasions when the
provisions have been completely emptied of their content
(for instance, the beginning of Article 2492 of the Civil
Code old text, under which entitlement to profits is based
on the proportion of the share capital subscribed to, „save
as may be provided otherwise under the Articles of Association“).
From this perspective, the failure to make a cross reference
to a rule applicable to the share based Company
did not preclude its application by analogy, even
where immediately subsequent provisions were so referred
to, even in sequence. One such example is the failure
to make a cross reference in Article 2487 of the old
text of the Civil Code to Article 2383(2).
In its best thought out theoretical form, failure to crossrefer
to a particular provision applying to the S.p.A.
(share company) (apart from the subjects of shares and
debentures) did not in any way preclude recourse to analogy
by the interpreter. On this account it simply meant
that the legislature had not wished to resolve the problem
expressly, indeed, giving this job to the interpreter in order
to confirm the pre-requisites for the existence of the
analogy itself 16 .
The Italian S.p.A. is governed by the provisions of
Book V of the Italian Civil Code. Set out as these provisions
are under a Head which comes before the provisions
governing the S.r.l., there can be no doubt that the
S.p.A. remained the prototype for the capital company
for a number of decades.
2.2. The Exploitation of the special characteristics of
the S.r.l. through the absence of legal cross-reference
The first attempt of significance in Italy to emancipate
the S.r.l. from its historical subjection to the S.p.A. was
effected in academic tracts 17 which, taking their lead
from the study of the holding of interests in companies,
elaborated a general rule concerning the application by
analogy of the rules governing companies with shares,
based on the weight to be given from time to time to the
failure to provide an express cross-reference.
The doctrine in question can be expressed in the following
terms:
Since the legislative policy intended by the 1942 legislature
was clear with reference to the S.r.l., in particular
the desire to position the new company type by the side
14 G.C.M. Rivolta, op. cit., p. 33.
15 In this context the words of G.C.M. Rivolta, op. cit., p. 35, appear fully
justified, even in the light of only a summary historical analysis
(but also in the light of a comparative analysis) when he states that it
is not possible to see in the foundations of the s.r.l. "a constant and
uniform trend driven by precise and homogeneous requirements. In
fact, quite the opposite was true. The introduction of our form of
company followed an unsteady, and in some respects, a contradictory
path under the pressure of differing interests, at times of only a temporary
nature, behind which one can often see the desire simply to
emulate foreign models".
16 See on this, representative of all, G. Santini, op. cit., p. 11: "save
where there are special reasons (which will be examined from time to
time in this commentary) the interpreter is therefore justified in having
recourse to the legislative scheme laid down for the prototype
share company".
17 G.C.M. Rivolta, op. cit.; and, before that, La partecipazione sociale,
Milan, 1964.