Il processo di razionalizzazione e dismissione delle partecipazioni pubbliche a fronte dell’inadempimento della società partecipata

In the decision under review, the Court of Milan rejected the claim filed bya municipality against the in house company it participated in, seeking the liquidation of the value of its shares pursuant to Article 24, paragraph 5, of the Italian “Testo unico in materia di società a partecipazione pubblica” (TUSP). According to the reasoning of the ruling, the public entity, still the owner of the shares, should have requested the issuance of a constitutive judgment under Article 2932 of the Italian Civil Code, aimed at transferring the relevant shareholding to the defendant. Under this approach, in fact, the obligation of the company to pay the liquidation value would be linked, by virtue of a relationship of reciprocity, to the corresponding obligation of the shareholder to transfer the same shares. The reasoning underlying the judgment raises some critical reflections and leads to an investigation into certain aspects of the applicable rules governing the divestment of public shareholdings, which continue to give rise to interpretative doubts and practical difficulties.