Banca Generali, economists raise concerns about Mediobanca's takeover bid: "Some regulations were not followed."

"As consideration for the takeover bid launched on Banca Generali, Mediobanca offered in payment the block of shares held in Generali " and this implies that "there was acceptance" of the offer, "Generali would end up purchasing its own shares" and the Civil Code requires that this transaction be "authorized by the ordinary shareholders' meeting, with a resolution that establishes its limits, methods, and consideration." This is one of the concerns raised in the pages of 'Sole24Ore', on newsstands today, by Alberto Maria Benedetti and Andrea Vicari , respectively, full professor of Civil Law at the University of Genoa and a former member of the CSM and full professor of Commercial Law at the University of Milan.

Furthermore, the two economists add, "to be legitimately authorized, the transaction must in any case comply with the principle of equal treatment governed by Article 132 of the Consolidated Law on Finance, according to which duly authorized purchases of treasury shares 'must be carried out in such a way as to ensure equal treatment among shareholders , according to the procedures established by Consob in its own regulation.'" The Consob regulation, Benedetti and Vicari point out in their analysis in the economic daily, "extends the rules to purchases through exchanges as well."

"Assuming that the transaction is not subject to these rules seems truly difficult, especially considering that some limited exceptions," provided for by law, "are indeed permitted but (only) in the situations established" by an article of the Civil Code which "given its unquestionable nature as an exception to a general rule, establishes a rule that is certainly peremptory and not susceptible to broad interpretation (except on the basis of highly questionable and essentially elusive arguments). On the other hand, shareholders' authorization is also required for purchases made indirectly and through subsidiaries."

"Having clarified these critical points, however quickly, it is possible to believe that the takeover bid launched by Mediobanca for Banca Generali, as currently structured," the two professors argue, " cannot even be (validly) submitted to a vote at Generali's shareholders' meeting, precisely because it violates the principle of equal treatment."

The principle of equal treatment

In fact, the transaction does not offer all shareholders, under conditions of equality and transparency, the opportunity to sell their shares to the company. On this specific aspect, it is no coincidence that there is no data or evidence to the contrary in the literature, since it is, if anything, clear that these transactions must be conducted in full harmony with a framework of fundamental principles long established by law. In particular, Benedetti and Vicari write, the rationale behind the principle of equal treatment in the case of the purchase of own shares lies in another principle, even higher in hierarchical terms, a derogation from which is not admissible even when the transaction appears efficient or convenient: the prohibition of discrimination (of some shareholders over others), which, in the case of the takeover bid launched by Mediobanca for Banca Generali, appears to be strongly questioned. In particular, in proposing such a delicate transaction, in which perhaps different visions of capitalism are also confronted, it seems highly appropriate to place transparency towards the market and full fairness of conduct at the center of attention in order to protect the rights of shareholders. of all shareholders", conclude the two professors in the analysis published in the newspaper.