Territorio e mutualità nei bilanci dei gruppi bancari cooperativi

This paper analyses the Italian reform of cooperative banks taking into account both the mutuality and the presence in the territory. The emphasis on these aspects allows to show how the need for financial stability has influenced the public intervention. In particular, law decree 18/2016 established a new model: the cooperative banking group, based on the role of a company (named ‘capogruppo’) aimed at governing the complexity of a network (of cooperative-banks) created with a special contract. This model should improve the size and the efficiency of the cooperative banking model and, therefore, the resilience of such industry to the fi- nancial and systemic risks. Our goal was the understanding of the compliance of such reform with the Italian Constitutional freedoms and principles, and therefore the capacity of the new rules to promote the social function of co-operation of a mutually supportive business with non-speculative nature. In this context, we focused on the regulatory asymmetries between cooperative banks and commercial ones, having regard to the risks of cross dependence in the management of the new cooperative banking groups. In conclusion, this analysis of the legal framework does not dispel the doubt that the regulatory choices, on the one hand, shared the financial burden of the dif- ficulties of certain cooperative banks among the others and, on the other hand, will not improve the quality of the service provided by this industry. On the contrary, it is clear that the need for the stabilization of this market has been satisfied by leveraging on the rights of the shareholders.

1. Premessa. – 2. Asimmetrie prudenziali dopo la legge 49 del 2016. – 3. Territorio e mutualità nel diritto dell’Unione. La posizione della BCE. – 4. Opzioni disciplinari e rischi di cross- dependence. – 5. Conclusioni.