Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 65

Regarding article 163, paragraph 5, l.b.l., it has been argued –with a consideration that can also be extended to article 90, paragraph 6, I. crisis c.– that the laconic reference to the exclusion of shareholders pre-emptive right do not imply any derogation of art. 2441 for the Italian public company and of art. 2481-bis I. civil c. for Italian limited liability company, providing for the preconditions for the exclusion of such a right.

This opinion rejects the possibility of identifying the social interest –required pursuant art. 2441, paragraph 5, I. civil c. to justify the exclusion or limitation of shareholders pre-emptive rights– with the survival of restructured company (even if such an interest is not the same of shareholders one). For the same opinion it would not be necessary the exclusion of shareholders pre-emptive rights in order to save the debtor-company, but only the increase of the share capital. Therefore, it would be an incomprehensible sacrifice imposed on shareholders to prevent them from subscribing new shares –with the exclusion of their pre-emptive right provided by the plan– if they still keep an interest in doing so23).

However, such a reconstruction and its strict application to the distressed company of requirements provided by company law raises serious doubts. Accordingly, some law scholars underestimate the importance of the preconditions for the exclusion of the pre-emptive right pursuant to Italian company law: they argue the existence in re ipsa of an interest of the company when the write-off of the share capital and the simultaneous increase of the same with the exclusion of pre-emptive right of shareholders is the only feasible option to avoid the insolvency of the company24). In other words, it would be possible to reconstruct a notion of company interest –stated as a precondition of the limitation or of the exclusion of shareholders pre-emptive right pursuant to art. 2441 I. civil c.25)– to be identified, in a vicinity of insolvency situation, simply with the survival of the company according to the company's conservation principle26).

The same problem of the formal and substantive requirements of the operations included in the Insolvenzplan and able to influence corporate organisation has already been examined, furthermore, by German law scholars27). On the one hand, regarding the exclusion of shareholders pre-emptive right, they recognize that § 225a, Abs. 2, InsO, does not provide for specific conditions for such decisions or for remedies that allow equity holders to bring an action against any breach of the rules provided by company law about this matter; whereby the position of equity holders is totally subject to the power of company's creditors28). On the other hand, some German law scholars infer the need to comply with the company law requirements of the exclusion of pre-emptive rights provided by § 225a, Abs. 3, InsO, pursuant to which the restructuring can provides for all the operations that are "gesellschaftsrechtlich zulässig"29) - 30).

Furthermore, French law article L631-19-2 c. comm. provides for shareholders pre-emptive right only in the event of compulsory capital increases with subscription of new shares in cash, not if the court orders the conversion of loans into equity31).

The analysis of the comparative data shows, then, that the best solution for the examined issue regarding Italian insolvency system is the inapplicability of article 2441, paragraph 5, I. civil c. to the exclusion of the pre-emptive right provided in the restructuring plan. Such an outcome is inferred from the fact that our insolvency law, unlike, for ex., French code de commerce, provides for neither explicit limit to the possibility to exclude pre-emptive rights in the proposal, nor the need –imposed, instead, by Insolvenzordnung– that measures covered by the plan are lawful pursuant to the rules of the company law.

Therefore, we can conclude that, if the purpose of new I. crisis c. is to impose a restructuring despite of the will of the old shareholders, favouring the interests of creditors32), then the best interpretative solution to achieve this aim, in the lack of different legislative rules, is to admit the possibility to exclude pre-emptibe right regardless of the preconditions provided by Italian company law, the rules of which may not apply in situations of crisis. That’s why in such cases the balance of the interests related to the company has to be different from that underlying company rules.

Article 163, paragraph 5, l.b.l., as well as art. 90, paragraph 6, I. crisis c., must be considered as a fragment of the so called (by Italian law scholars) “crisis corporate law”, which constitutes an autonomous legal system, which must be completed using its own principles33) or –according to a different opinion– in which the common rules about the organization and operations of the companies must be modified, through interpretation, in order to became suitable to the new situation of crisis or of insolvency34). Both opinions lead, therefore, to outline a special status of the distressed company. That’s why even rules about pre-emptive right of company law needs to be tailored to the special balancing of interests that emerge in the vicinity of insolvency.

For these reasons, the provision under consideration (art. 163, paragraph 5, I.b.l. or 90, paragraph 5, I. crisis c.) can be considered as "a new rule providing for the exclusion or limitation of pre-emptive rights"35) that adds up to –without having to be subsumed into– those pursuant to art. 2441 I. civil c. The justification of this new precondition of the exclusion or of the limitation of shareholders pre-emptive right must be identified, inter alia, in the function of insolvency procedures to translate the control of distressed company from the shareholders to the creditors36).

This conclusion can be grounded, moreover, on some further considerations:

1) shareholders pre-emptive right finds its rationale in the protection of their investment in the event of an increase of the share capital. This function, however, does not exist in the case under consideration, in which it can be assumed that shareholders investment is totally lost37);

2) although the opinion is not peaceful, the foreign jurisprudence believes that keeping the pre-emptive right to shareholders as part of a reorganization that was crammed down against a class of impaired creditors results in a breach of the absolute priority rule. True that, the exclusion of that rights for the old shareholders complies with this principle, that part of Italian law scholars derived for our system from art. 160, paragraph 2, l.b.l.38).