Banca Cambiano: the order of the Cassation which refers to the Consulta and which could have effects on the reform of the Bcc. The speech by Marco Bindelli, vice president of Banco Marchigiano and managing director for relations with cooperative credit and group leaders (Ccb group)
The Supreme Court Order of Cassation n. 13484 of 2/7/2020, which intervenes on the sum equal to 20% of the shareholders' equity as at 31/12/2015 paid by the former Cooperative Credit Bank of Cambiano and with which it refers to the Constitutional Court for not manifestly unfounded a question of constitutional legitimacy, it appears of undoubted interest for the entire cooperative sector which is highlighting critical issues not adequately assessed when defining the recent reform law of the Cooperative Credit Banks (Bcc).
From the fiscal point of view, on the other hand, in returning to the Consulta, the Ordinance correctly questions – also with reference to an accurate reconstruction of the ratio that led to the reform of the Bcc – the reasonableness of the taxation envisaged for the exercise of the way out modified during the conversion of the decree (Graziola, 2/7/2020, Il Sole 24 Ore Radiocor Plus ).
THE ORIGINAL WAY OUT
The dl 14/2/2016, n. 18, in disciplining the reform of the cooperative credit provided, for the CBs with a net worth of over 200 million. euros at 31/12/2015, to transform the same into joint stock companies by releasing the indivisible reserves accumulated over time by paying a substitute tax equal to 20% of their value. For all the other mutual banks, it was mandatory to join a cooperative banking group led by a joint stock company, under penalty of dissolution and liquidation of the cooperative bank with the transfer of reserves to mutual funds.
At the time there was discussion about the appropriateness of the amount of this tax (20%) and the high threshold required (200 million euros of assets) to be able to exercise the way out , while, in the writer's opinion, no doubt arose about the lawfulness of releasing the reserves of the mutual banks by paying a substitute tax (Bindelli, 1/3/2016, Banking Law).
THE NEW WAY OUT APPROVED AT THE CONVERSION OF THE LAW DECREE
While maintaining the 20% tax demand, the way out exercise was redesigned at the time of approval of the decree to the extent that the tax itself could no longer be justified, as rightly observed in the Cassation Ordinance.
Indeed, the l. 8/4/2016, n. 49, when converting the aforementioned legislative decree, envisaged, as a new way out formula for the mutual banks (always with assets of more than 200 million), the possibility of conferring the banking company into a joint-stock company, including new constitution, authorized to carry out banking activities. At the same time as the transfer, the mutual banks modified their corporate statute in order to exclude the exercise of banking activity and, at the same time, maintaining the indivisible reserves and the mutualistic clauses pursuant to art. 2514 of the Italian Civil Code, as well as providing shareholders with functional services for maintaining relations with the joint-stock company providing training and information on savings and promotion of assistance programs.
Ultimately, concludes the Court of Cassation, the request for a tax " could be considered in line with the configuration of the levy according to the original wording of Legislative Decree 18/2016, in which … the related payment was used as a tool for the release of the reserves that otherwise they would have had to be devolved to mutual funds, in which case the cooperative credit institution and therefore the prevalent mutuality purpose would cease entirely due to the voluntary transformation into a joint-stock company … This situation can be considered reversed in the the definitive structure of the reform as regards what has been defined as the third option, in which the cooperative body persists, but, following the transfer of the banking company into a newly created joint-stock company, it changes its corporate purpose, continuing to pursue its prevailing mutual purpose through the shareholding in the newly created joint stock company for eff etto of the conferment in it of the banking company, with the relative limits in the distribution of the profits ".
THE RATIO OF THE BCC REFORM ACCORDING TO THE COURT OF CASSATION
Of particular interest is the Cassation's analysis aimed at verifying whether the levy imposed following the new way out formulation is consistent with the ratio of the BCC reform and which identifies in " remedying the weaknesses of the governance model of cooperative credit such to generate significant difficulties for the sector, strengthening the assets of the CBs to the extent necessary to resolve crisis situations, pursuing the objective of placing the sector in a position to compete in a European context characterized by profound changes in terms of prudential rules, supervisory activities and the level of competition ".
On close consideration, the onerous taxation imposed on the CBs wishing to take advantage of the way out is contrary to the banking systematic legislation aimed at recognizing in the capital strengthening of credit institutions the primary way to ensure "sound and prudent management" which, as it is known, it identifies the basic criterion on which the stability of the banking institution and, with it, the entire sector is based. Indeed, as can be seen from the continuation of the Ordinance in “ reaffirming the importance of the role of credit cooperation in support of the economy, the reform aimed to remedy the weaknesses of governance of cooperative credit such as to create significant difficulties for the sector by strengthening the assets of cooperative credit banks to the extent necessary to resolve any crisis situations, pursuing the objective of placing the sector in a position to compete in a European context characterized by profound changes in terms of prudential rules, supervisory activity and the level of competition . "
Conversely, a different preparation of disciplinary criteria during the reform – among which a suitable lowering of the quantitative limits set for the activation of the way out – could have facilitated the establishment of a new type of bank company, which in relation at their origins they would have continued to play, albeit with a different legal status, the role typical of the Bcc, as "integrating agents" of the industrial districts, intended to financially support SMEs.
For the Court of Cassation, having retained a significant levy on the transferring entity's assets (which no longer performs the function of releasing the indivisible reserves because they remain so in the transferring institution) represents a sort of tax paid by the entities that intend to escape the cooperative banking group or the liquidation of the Bcc, contrasting with the ratio of the reform.
Based on the considerations set out above, the Court of Cassation therefore declares that the constitutional legitimacy exception of some legal provisions is not manifestly unfounded in relation to Articles 3, 41, 45, 47 and 53 of the Constitution and orders the transmission of the documents to the Consulta.
THE POSSIBLE EFFECTS FOR THE BCC OF THE REFERRAL TO THE CONSTITUTIONAL COURT
In addition to the evolution of the tax aspects that would seem to justify the institution of Cambiano, the following cannot be omitted: (a) the way out through the transfer of the banking company and at the same time maintaining the indivisible reserves for the transferring entity and the mutualistic clauses pursuant to art. 2514 of the Italian Civil Code was considered, by the Cassation itself, to be one of the three ways in which to implement the ratio of the reform and (b) the minimum capital limit currently required for the establishment of a joint-stock bank is equal to 10 million euros, therefore far below the threshold required at the time by the CBs (200 million) for the option to transfer to the joint stock bank.
Add to this that if the way out should not give rise to any taxation, it would end up configuring a privilege reserved by the legislator to very few Bccs (those who at the time held a patrimony greater than 200 mln.) And, in fact, only used by Cambiano, given that the other two Bccs that attempted the way out were "stopped" by the Supervisory Authority due to technical deficiencies.
Faced with a sentence of the Consulta that legitimizes the position of the Cassation, the possibility of reopening the way out could be glimpsed, especially in the presence of group leaders who risk distorting the cooperative banking group through operations in contrast with the mutual and cooperative principles characterizing the group itself (Capriglione, 18/8/2019, Il Sole 24 Ore ) and / or able to transform it into lucrative (Sepe, 27/8/2019, First Online ).
All the more in consideration of the fact that with the recent Law 136/2018, introducing a fourth option to implement the reforming ratio , only the CBs of the province of Bolzano (the Raiffeisenkasse) have been allowed to adopt an institutional system of asset protection that will lead to the establishment of an IPS – Institutional Protection Scheme . In fact, theoretically, in order to avoid liquidation, in addition to being able to take advantage of the same way out used by Cambiano, the mutual banks set up in the autonomous provinces of Trento and Bolzano could opt – in addition to the national cooperative banking group having a joint stock company as the parent company – for a provincial cooperative banking group headed by a co-operative or joint stock company, to which the IPS option has recently been added.
Of particular interest are the prospects of legitimacy of the reform linked to articles 41, 45 and 47 of the Constitution which affect the other "forced" Bccs – unlike those with assets greater than 200 mln. euros and those operating in the province of Bolzano – to choose only, in order to avoid the dissolution with liquidation and transfer of reserves to mutual funds, the cooperative banking group headed by a joint stock company.
In other words, taking into account in particular the prescriptive scope of the last two articles of the Constitution – which, expressly, encourage and protect the function of mutual cooperation and savings in all its forms – it should not be excluded, especially in absence of prompt interventions by the Authorities aimed at intervening on certain aspects of the reform provisions or at bringing the parent companies back to a correct activity in line with the aforementioned provisions (Capriglione, 25/3/2020 and 5/6/2020, Il Sole 24 Ore ), the possibility that the Consulta extends its reflection to an overall assessment of the reform. This also in light of the considerations in several fora made by numerous jurists (Onida, Capriglione, Pellegrini, Sacco Ginevri, Sabatelli) who highlighted significant aspects of the unconstitutionality of law no. 49 of 2016.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/bcc-e-cambiano-cosa-cambia-dopo-la-cassazione/ on Thu, 06 Aug 2020 05:30:17 +0000.