Privatised Companies: special legislation and common law
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Language: Italian This thesis is written in Italian

Original Italian title:
Le società privatizzate: legislazione speciale e diritto comune
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Daniele Palmisani, Università degli Studi di Roma La Sapienza, 2001-02
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Daniele Palmisani
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This thesis on Italian site

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Abstract
"By privatisation, we mean the transformation of public economic entities that are transformed into stock companies (formal privatisation) and the subsequent sale of the majority of the shares to private parties (substantial privatisation). DL 333/1992, converted into Law 359/1992, mandated the direct transformation of IRI, ENI, INA and ENEL into stock companies (article 15, Law 359/1992). Article 1 of Law 474/1994 disciplines the sale of shares directly held by the state and public entities as well as the transfer of shares owned in companies indirectly controlled by the state. A decree by the President of the Council of Ministers sets the method of alienation as a public tender offer, direct negotiations or recourse to both procedures (article 1, paragraph 2). Privatisation processes have not only involved Italy but many other nations (primarily France and the United Kingdom) with dimensions and legal implications that differ from country to country. In Italy, after the effective transformation of public economic entities into stock companies, the legislature's attention has focused on regulating the structural organization of the privatised companies (Law 474/1994). The joint use of public tender offers and direct negotiations has allowed the creation of corporate structures with widespread ownership that, nevertheless, have a stable nucleus of shareholders of reference. It is common for the corporate bylaws to contain clauses that set limits on the number of shares that can be held by a single shareholder. The right to set a maximum limit on share ownership is specifically provided by article 3 of Law 474 for companies directly, or indirectly, controlled by the state operating in the sectors named in article 2 of the law, as well as banks and insurance companies. A corporate structure with broad ownership has revealed the need to provide to protect minority shareholders. List voting is among the voting systems used in corporate practice to ensure the election of minority representatives to the Board of Directors and the Board of Statutory Auditors. Under article 4 of Law 474, privatised companies that have set a limit on share ownership must provide a clause for the election of directors and auditors by list voting that cannot be changed as long as the limit in article 3 remains. Article 5, paragraph 5, allows privatised companies to vote by correspondence. From among those companies, directly or indirectly controlled by the state, operating in the sectors of defence, transport, telecommunications, energy and other public services, article 2 of Law 474 identifies those whose statutes must contain a clause giving the Treasury one or more special powers, which are listed in the article. Article 2, letter ""a"" of Law 474 requires Treasury approval for the purchase of significant shareholdings by those subject to the ownership limit in article 3 of the law. Significant shareholding means one-twentieth of the share capital, represented by shares with the right to vote in the Shareholders' Meeting or a smaller percentage set by the Ministry. The second power granted the Treasury is the approval of the pacts or agreements referred to in article 122 of DL 58/1998, that represent at least one-twentieth of the share capital or smaller percentage set by the Ministry. Under article 2, letter ""c"" of Law 474, the Treasury can veto a resolution to dissolve, sell, merge or split the company, transfer its headquarters abroad, change the company's purpose or make changes to the bylaws that change or suppress the special powers referred to in the article 2 in question. The last power in article 2 requires that the Treasury have the right to appoint at least one director or a number of directors that is no greater than one-fourth of the total number of members of the Board of Directors, and one statutory auditor. As regards the banking sector, Law 218/1990 launched a process of restructuring whose principal objectives included mandating that public banks be organized as stock companies (article 1). In regard to the privatisation process, reference must be made, most of all, the DL 356/1990. "
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