Premi di fedeltà ed eguaglianza tra azionisti: riflessioni sull’art. 127-quater t.u.f.

Article 127-c TUF (Italy) - introduced by Legislative Decree of January 27, 2010, No 27 - permits that, notwithstanding Article 2350, paragraph 1, Italian Civil Code (stating that dividends must be distributed on a pro rata basis), articles of association of listed companies provide for a higher dividend to a shareholder who: a) has not exercised either directly, or through shareholder agreements, control or a dominant influence over the Company; b) may show continued holding of the Company’s stake for a certain period of time to be determined by the articles, but not less than one year. The higher dividend: c) cannot exceed 10% of the ordinary dividend paid to other shareholders (of the same class); d) may benefit shareholders who do not have holdings in excess of 0.5%, or a lesser amount specified in the articles; in case of holdings greater than 0.5%, the bonus can be paid only within such percentage. A similar rule is provided for in Germany (§ 60 AktG). The higher dividend rule can be appreciated - at least at first sight - as a reward for non-controlling shareholders to keep their investment, thus an incentive for non-speculative investment in listed companies. The same rule expressly makes an exception to the national rule (Article 2350, paragraph 1, Italian Civil Code) requiring compliance to the internationally renowned principle of pro rata sharing. The principle of equal sharing is considered a fundamental tool in corporate law, acting as a reward strategy which grants that agents (directors, or majority shareholders) do act in the interest of principals (all or minority shareholders) (Armour, Hansmann and Kraakmann). Some studies attempt to establish from the same argument a broader principle of equal treatment of shareholders (Brudney). This paper addresses the issue of whether it makes sense in an economic perspective to offer incentives to enhance stability of non-controlling shareholders in listed companies. Further, it analyzes the relevance of the higher dividend rule in light of both the pro rata sharing and the equal treatment rules: if the interests of some are better-off, those of others may be worse-off. Reasoning leads to understand whether financial market would prefer the higher dividend rule being opted in by the articles of listed companies, or would they better prefer equal sharing/equal treatment rules of all holders being kept. Also, the paper draw attention to the issue as to whether a similar rule could be foreseen in articles of non-listed companies, too.