Società a partecipazione pubblica e ricorso al mercato dei capitali

Currently, a fair number of companies having among their shareholders the Italian State or some other public entities (Publicly Participated Companies – PPCs) issue stock or other financial securities (including bonds) which are traded on some Italian regulated financial markets, namely those run by Borsa Italiana s.p.a. (the Milan Stock Exchange). In 2016, the Italian legislator passed the Unified Code on PPCs (hereinafter: the “Code”), with the purpose of reorganizing and simplifying the existing massive body of laws governing all PPCs. This essay, which reproduces a talk given at a congress held at the University of Palermo on 16-17 December 2023, illustrates and discusses some of the main of company law rules governing such listed PPCs. The Code confirms the option – previously made through the passing of several “ad hoc” acts - for exempting said companies from the application of most of the special rules concerning the organization of PPCs. This is done in the light of the need for listed PPCs to compete on the financial markets with the other “ordinary” listed firms, of their being subject to special rules similar to those provided for by the Code for the other PPCs and of their being subject to the general system of supervision carried out by the Italian financial markets authority (the CONSOB). In this respect, the Author points out that the reasons for the exemption at issue can be actually found only in connection with companies holding listed shares, and criticizes the approach of the Code, according to which, for a certain number of years, all listed PPCs (including those who have issued only listed bonds) will benefit from the above said exemption. The Author then focuses on the main special pieces of legislation other than the Code which govern only PPCs with listed shares. As for this matter, the Author criticizes the fact that Code has not repealed some special rules, which inter alia set a maximum cap to the shares that can be held by the shareholders other than the “public” ones, and that on the whole make any transfer of control of listed CCPs from “public” to “private” shareholders through the ordinary market rules an almost impossible event.