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200 F. Tassinari, Reform of the limited liability company in Italy Notarius International 3-4/2002 to obtain a guide for the purposes of analogical reasoning. This is of course, always providing that the specific technical requirements exist (cf. section 4 of this Chapter). Applied to the subject area of the S.r.l., the so-called typological method may lead, on the one hand, to the decision not to apply the rules governing the S.r.l. to the particular case even where the nomen iuris has been used, because it is considered atypical, that is, not coming within the normative type (even justifying, in an extreme case, the changing of an S.r.l. into a personal company). On the other hand it can identify a series of references for the purpose of analogical application where there are lacuneae in the norms applying to the S.r.l. The sources for such analogy may be drawn, not only from the laws governing the S.p.A. (share company) (e.g. where the question is raised as to the admissibility of special General Meetings of categories of quotas, notwithstanding the failure to make reference to Article 2376 of the Civil Code or concerning life interest in or the pledging of quotas under Article 2352 of the Civil Code) but also drawing, where suggested by the features of the empirical type, from the legislation governing personal companies. A case in point would be where it is intended to justify the legitimacy of a rule requiring unanimity in General Meetings of an S.r.l. or a clause permitting separate administration under Article 2257 et seq. of the Civil Code (even though these rules lie outside the normative regulations laid down by the legislature). The failure by the legislation to identify specific cross references in Articles 2472 et seq. of the old text of the Civil Code to individual articles applying to the S.p.A., opens the door to the typological method for the interpreter 21 . The final result of the application of this method is the enhancement of the special (typological) features of the S.r.l. with a clearer separation from the historical reference model of the S.p.A. effected on the basis of substantive rather than purely formal criteria (the latter being foremost if following the prescriptions of the method described in the previous section). 3. The Reform and Systematic collocation of the „New“ S.r.l. 3.1. S.r.l. is the most popular type of company in Italia The data produced by censuses and by Union Camere on the basis of data drawn from individual Business Registers concerning the popularity achieved among operators of the different company types (S.p.A. and S.r.l.), leads one to the inevitable conclusion that increasing numbers of business men and women both in absolute and percentage terms, are choosing the second type rather than the first. - According to the data collected from censuses in a recent contribution of fundamental importance to the reform of the S.r.l. 22 , in 1971 there were 26,710 S.r.l. companies as against 23,056 of the S.p.A. type. By 1996 though it appears that there were 368,785 S.r.l. as against 34,998 S.p.A. - Following the introduction of the Business Register in 1996, the data provided by the Union Camere with reference to 2002 emphasise, with respect to the census data, the significant increase in both company types; these figures note the Spa at around 100,000 companies and S.r.l. at around 900,000 companies. What this means is that the reform of the S.r.l. cannot be justified solely by these numbers since, on the evidence they provide, there is no reason for drastic intervention on a normative model which has obtained such a high level of popularity with operators 23 . 3.2. Legislator's goal to strengthen the company on shares Following the enactment of Law no. 366 of 3rd October 2001 (Delegating Law) and Legislative Decree no. 6 of 17th January 2003 (delegated legislation) the S.r.l. appears, at first sight, to be the company type whose normative and conceptual make up has been most fundamentally changed in the reforms undertaken. The reasons behind these reforms though, must be seen as clearly political in nature. - The Italian legislature’s decision indeed, to intervene in relation to the law relating to capital companies (co-operatives) was certainly partly based on technical reasons. It should be recognised that the normative corpus of 1942 was conceived and drafted in an economic context differing greatly from that obtaining at present and hence in many aspects, obsolete. The reform also had a systematic content. - The reform of the law governing companies issuing negotiated securities in regulated markets, occurring with the entry into force of the Draghi reforms contained in Legislative Decree no. 58 of 24th February 1998, lead to the need to review and render uniform a number of rules applicable to a company without listed shares to avoid the creation of normative distortions in a business’s decision to have its shares listed or to withdraw from the process – this was above all necessary where non-listed companies still had recourse to risk capital markets. - The intervention however, is also explicable on what can be described as political grounds. If the legislature’s declarations of principle are to be taken at face value, it shares that economic view of the law which derives its origins from the United States. According 21 G. Zanarone, op. cit., p. 77 et seq. 22 G. Zanarone, Introduzione alla nuova società a responsabilità limitata, in Riv. soc., 2003, p. 58 et seq. 23 Obviously, any assessment of numeric data is subjective and relative. The preparatory work for the delegating law and in particular, the report on the delegating bill drawn up by the Mirone Commission, set up under the previous 1996 to 2001 legislature, expressed the hope on the one hand, that it would be possible to achieve the ratio of 3,000 to 1 million between share based companies and limited liability companies existing in Germany (Mirone Report, under art. 1, n. 1). On the other hand, it hoped that the total number of personal companies should become less than the number of S.r.l. companies, so supporting the greatest possible extension of the benefit of limited liability (Mirone Report, under 3, n. 1).
Notarius International 3-4/2002 F. Tassinari, Reform of the limited liability company in Italy 201 to such a view the legislature’s primary duty is that of promoting business growth through free competition between the various legal systems, seeking to bring an ever greater amount of investment into the country thanks to the greater attractiveness to business of the commercial normative Framework. This attractiveness is founded on the greatest possible flexibility and the minimum of mandatory rules – by now confined to the protection of incontrovertible external interests accepted by society at large. In addition to adopting the logic of competition between legal systems, the legislature has also chosen, following the same economic conception of the law, to espouse the logic of competition between company types within the same legal system. This has been above all, with a view to avoid penalising the more „complex“ type as against the „simpler“ type since the free choice of the first instead of the second is considered in abstract, as more functional in achieving the declared goal of promoting the growth of businesses generally. In this way, the S.r.l. type, in spite of its popularity among Italian operators (particularly over the last 20 years) is seen, in the light of the above legislative policy assessment, to be squeezed between two different models. On the one hand, there is the greater efficiency of the foreign models – not only Anglo-Saxon, but also in continental Europe where the example of the new coherent and modern reform in the area introduced by the Spanish legislature in 1995 comes to mind. On the other, there is the greater efficiency, in terms of openness to private autonomy and more simplified functioning rules of the personal company types of S.n.c (Società in nome collettivo) and in part, of the S.a.s. (Società in accomandita semplice) itself. The success of the S.r.l. company form over recent years, in the light of the above comments, can be traced to two main reasons. The first is tax, giving the members the ability to conduct a business without the related income being directly attributable to them. The second is economic in that there are few difficulties in raising the minimum level of capital for the establishment of an S.r.l. It cannot be said that its popularity lies in the supposed effectiveness and modernity of the laws enacted by the 1942 Italian legislature. The declared goal of the reform is thus that of allowing a migration of many current S.r.l. companies into the share-based form and many of the current personal companies into the S.r.l. form. 3.3. Important changes in the law concerning the S.r.l. In order to achieve this legislative policy goal, the legislature has chosen the path of a far-reaching reform of the law dealing with the S.r.l. set out in the 1942 Civil Code as subsequently amended 24 . Such a goal should have induced an initial reflection on the continuing importance of a distinction between a capital company (with legal personality) and a personal company (without legal personality but nonetheless with autonomous subjectivity). Above all though, such reflection could have served to make a careful assessment of the new systematic position that the S.r.l. was to have taken as a result of the reform consequential to the pursuit of the objectives described above. In making the reforms however, the legislature appears instead to have followed a more practical and direct path. In this way it concentrated its attention, without any preliminary reflection, on the S.r.l. structure and on the identification of new simplified rules both for the regulation of company functions and the protection of the member’s position through the drastic reduction of the mandatory provisions characterising the previous legislative scheme. This approach meant an implicit and unemphasised acceptance of the distinction between a capital based company and the person-based form. It also meant the inclusion of the S.r.l. as one of the former – cf. the decision not to amend Article 2331(1) of the Civil Code and to make reference to the same article in its totality in the provisions governing the new S.r.l. The first point to be noted is that the entire structure of the new S.r.l. (taking at least the literal meaning of the new Article 2469(2) of the Civil Code, it appears legitimate to continue to refer to „company bodies“) is placed in a subordinate position (almost executive) with respect to the contract or Unilateral Deed of Formation. The reforms have changed this aspect of the S.r.l. to a greater extent and have made a clearer distinction between the two elements than in share-based companies. The second point is concerned with the question of the functioning of the company and the protection of the interests of individual members. Here the main concern seems to have been the identification of new solutions for the exercise of private autonomy through a specific option to such effect rather than the offer of supplementary rules differing from those previously in force (and applicable simply because of the choice of the S.r.l. type, and not therefore based on the choices inherent to the achievement of private autonomy). As the academic literature on this subject has made abundantly clear 25 , a legal model has been produced which, without the adoption of specific exclusions enhancing the exercise of private autonomy, continues to have a strong resemblance to the preceding model. This is both from the point of view of the formal duties 24 The s.r.l. was only partly affected by the Community Directives issued from the end of the 1960s onwards dealing with company law and was not, by definition, affected by the reform of financial markets law which began to be introduced from the end of the 1970s. As a consequence it was the subject of only marginal amendments up to 1993, constituting a bare reflection of the amendments of the law concerning the S.p.A. In this context the amendments enacted following the implementation of the first Community Directive in 1969 come to mind. It was only in 1993 that the Italian S.r.l. was the subject of two important changes implemented by means of Legislative Decree no. 88 of 3rd March 1993 (concerning the single person S.r.l. implementing the 9th Community Directive on company law) and of Law no. 310 of 12th August 1993 (the so-called "Mancino law" dealing with the form and publicity of activities involving the circulation of S.r.l. quotas). 25 G. Zanarone, op cit..
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