Dematerializzazione e digitalizzazione di strumenti finanziari: le quote di s.r.l

The author starts from the analysis of Article 3 of Law No. 21/2024, which introduces into the dematerialisation system also LLC (Italian s.r.l.) interests, provided that the company meets the requirements to be qualified as an ‘innovative start-up’ (as set forth in Article 25, paragraph 2, Law Decree No. 179/2012) or SME. The same provision allows small or innovative limited liability companies to issue special shares, i.e. shares ‘provided with different rights’ whose content is ‘freely’ determined by the bylaws. The author first questions the possibility of extending by analogy to the shareholders of limited liability companies the protections provided for the holders of special shares of s.p.a. when the general meeting adopts resolutions entailing alterations to class rights. The new rules also raise the need to deal with Article 2468 of the Italian Civil Code, which prohibits s.r.l. from issuing shares and offering them to the public. This is an insurmountable limit to the contractual freedom of the LLC’s members, which does not seem to have been implicitly abrogated by the recent legislation on the s.r.l. Indeed, the s.r.l.'s non-openness to the market seems to be justified by its organisational flexibility, and specifically by the lack of strong safeguards and controls to protect minority shareholders. In the perspective of a s.r.l. opening itself to the market, it would make sense to think of instruments to protect widespread savings, rather than of instruments to increase the raising of capital, as has been done up to now.