ARTICLES and NOTES - Notarius International

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..