Translation by Pietro Borsano, Lawyer associate with AdvisingAsia – Business Law e Venture Management Professor at Shinawatra International University (www.siu.ac.th). Report held at Workshop: “Important Issues of Business Law” (Company Law, Artificial Intelligence & Intellectual Property Law) for Business People - Shinawatra University - 16 March 2018.

 

Il diritto societario, e in particolare il diritto delle società di capitali, e la disciplina dei mercati finanziari sono strettamente correlati. Recentemente si è verificato nell’Ordinamento italiano un fenomeno opposto al fine di favorire il finanziamento delle P.M.I.

1. Corporate Law and Securities Law Corporate Law, in particular corporate law of listed corporations, and securities law are deeply related and interconnected. A public company is essentially a firm characterized by its equity divided per shares, which can be exchanged (sale and purchase) on the stock exchange. Furthermore, any public company can issue debt (corporate bonds), which are also traded in the financial markets. Financial markets regulations heavily rely and depend on corporate governance of listed companies and on their corporate law. At the same time, the regulatory framework of listed firms is influenced by financial markets regulations and securities law. Recently, in the Italian legal system, a different approach has been adopted, in order to enhance SME financing. On the one hand, the capacity of Italian SMEs to borrow money has dramatically decreased over the latest decade, due to the strengthening of financial regulations (Basel 2 and 3) and the tighter control by the European Central Bank. Also, on the other hand, the leverage of Italian SMEs has worryingly increased, thus preventing Italian lenders to borrow money without enough collaterals to guarantee the capability of SMEs to pay back the loans. The Italian regulator has tried to solve this credit crunch, also considering the past financial crisis that has affected both firms and financial organizations, by introducing an innovative tool: the equity crowdfunding. Essentially, equity crowdfunding represents a new financial market, without having a stock exchange involved. The mechanism behind equity crowdfunding nevertheless is pretty much similar to that which governs a regulated financial market. Consequently, in 2017 the Italian Parliament set forth a new type of company. To put it very simple, this new type of company complies with all the essential characteristics of a private firm, but at the same time it is allowed to publicly trade its stock on this innovative financial market, the equity crowdfunding market. 2. SMEs The aim of the Italian government was clearly to strengthen the capital structure of Italian SMEs, preventing them from requiring further and expensive corporate loans from lenders. As per Italian rules, SMEs can be considered the following legal entities: – No more than 250 employees, or – Yearly revenues which shall not exceed the limit of 50m Euros, or alternatively – Assets (current assets, fixed assets, financial assets, and intangible assets), which shall not exceed the limit of 43m Euros per year (https://www.investopedia.com/terms/a/asset.asp). 3. The Italian Corporate Law The Italian corporate law includes two main categories of legal entities. Under this aspect, the Italian corporate framework is close to the French and to the German one, the two major civil law systems from which the Italian civil and commercial code has been borrowed, mixing principles coming from each of these legal [continua..]