Open Review of Management, Banking and Finance

«They say things are happening at the border, but nobody knows which border» (Mark Strand)

All stakeholders are equal, but shareholders are more equal than others

by Andrea Sacco Ginevri* and Lorenzo Locci**

ABSTRACT: In the context of the debate concerning the conflict between “shareholderism” and “stakeholderism”, this paper explains the reasons why, as of today, the corporate purpose should be deemed as still focused on the achievement of an “enlightened shareholders value”, also because of certain structural limits of pure “stakeholderism”

SUMMARY: 1. Introduction. – 2. Arguments in favour of an “enlightened shareholders’ value” theory – 3. Sustainability and organisational structures – 4. Brief overview of the proposed Directive on Corporate Sustainability Due Diligence – 5. Conclusions.

1. The famous quote from George Orwell’s novel “Animal Farm” (1945), slightly amended in the title of this paper, reveals the position of its authors, who aim at showing that the current international legal framework does not allow pure equality among stakeholders despite the proclaims of many market leaders and operators worldwide[1].

In particular, in a world driven by supervisory measures for crisis prevention, sustainability seems to result mainly in a rule of conduct addressing both the organisation and the management of business activities in order to prevent systemic risks[2], as well as the activity of supervisory authorities, who may affect the strategic choices of the supervised entities in light of sustainability objectives[3].

This new behavioural pattern derives from the latest systemic crises, during which serious environmental and social issues emerged, exacerbated by an epidemic short-termism. The legislative reaction to such events initially focused on enhancing the prerogatives of influence exercisable by virtuous shareholders – in order to make them privileged interlocutors of the management[4]and then on reinforcing the operational discretion of the directors, who are required to address their actions towards the company’s sustainable success in the long term. This trend could be identified in an evolution of the safe and prudent business management rule as a guarantee of rational and business growth[5].

Since then a considerable number of initiatives of various natures and sources have spread – including the 2019 Business Roundtable[6] and, in Italy, the 2020 Italian Corporate Governance Code[7] – all aimed at promoting, at a global and domestic level, the principle of sustainable development of economic operators of significant size, which consists in the abandonment of the profit purpose “at any cost” in order to encompass further interests of different kinds[8].

In this context, the proliferation of regulatory (and non-regulatory) references to sustainabilityis nowadays of such a magnitude that it has disoriented operators, who might question whether sustainable growth interfere with the purposeofthe company or with the duties of its managers. Examples include, among others, the proposal for a Directive on Corporate Sustainability Due Diligence dated February 23, 2022, which aims at incorporating sustainability into the corporate governance and decisional processes of large companies.

However, as will be noted below, it could be argued that – as of today – sustainabilityrepresents a rule of organisation and management of economic and financial activity of significant size that, rebus sic stantibus, alters neither the essence of the profit purpose (where applicable) nor the nature of the activity carried out by corporations.

2. The thesis at hand could be summarized as follows: in lack of specific law and regulatory provisions that expressly waive the goal of pursuing shareholders’ value, the profit purpose remains, in principle, the only objective of a business activity organised in corporate form, albeit with different shades than under the Milton Friedman’s doctrine[9].

We deem that multiple and convergent arguments support this conclusion.

First, the applicable legal framework makes available to market operators specific business organisation models where the profit purpose is mitigated or derogated by operation of law. These include mutualistic or consortium companies (increasingly recessive in the financial area[10]), or association or foundation entities with an idealistic purpose (where they carry out a business activity), or, more recently, benefitcorporations that encompass the profit purpose along with the proposed “further benefits” to be achieved[11]. Therefore, the legislator designed several business organisation models which can be used to pursue purposes wholly or partially different from the maximization of the company’s stock value (so-called shareholders’ value).

Second, with specific reference to the Italian legal framework, the so-called “patto leonino” prohibition (see Article 2265 of the Italian Civil Code) – whose applicability to any kind of corporation and extensive scope as the main rule of the economic system is often highlighted by scholars and case law[12] – confirms that corporations are intrinsically characterized by a profit purpose. In particular, this provision – enforceable with the nullity of any act undertaken in breach of it – aims at avoiding that shareholders are excluded from participating to both profits and losses recorded by the company in which they have invested. This is because, since “excessive return is risky[13], it is neither safe nor prudent that a business activity is funded – and thus potentially affected – by shareholders who might be insensitive to the negative economic returns which may derive from the performance of the business. In other words, the prohibition at hand represents an ante litteram sustainability rule, consistent with the profit purpose of corporations as well as with a purely business (and even speculative) purpose.

Moreover, the need to prevent too aggressive management conducts is even more felt when it comes to “entities of public interest” – including, banks, insurance companies, financial intermediaries, listed companies, etc.[14] – since the latter collect and manage public savings and, therefore, their equity or financial default could have a systemic impact due to the potential “domino effect” vis-à-vis other market operators[15]. This explains the reason why certain sustainability rules, both of an organisational and informative nature, are only applicable to such operators[16].

European laws and regulations seem to confirm what has been observed so far. For instance, the prohibition of State aids – set out to protect free competition within the EU – allows public investors to support their own national companies if the transaction fulfils the so-called “MEO test”, which looks at the financial profitability of the investment based on the economic returns that are generally expected by a rational private investor[17]. In fact, this analysis implies the existence of a return in terms of profits, while “other” interests connected to the transaction are usually not sufficient for these purposes.

That being said, even the most radical supporters of “shareholderism” agree that, as of today, profits distribution at any cost is no longer predictable, as regulatory measures limiting this approach proliferate; instead, the objective of profit creation, although integral, is mitigated and enlightened compared to the past (so-called enlightened shareholder value)[18].

This shift in the applicable paradigm justifies a new interpretation of the rules of conduct for institutional investors and issuers’ directors. Investors still look at profits, but such profits must be sustainable in the long-term period[19] – when all interests physiologically tend to converge – while directors are called to take business decisions that encompass stakeholders’ interestsin general, with the aim to maintain adequate stability and sustainable growth.

However, in this context, the interests of purely financial investors seem to be jeopardized on the assumption that the latter are the promoters of speculative logics aimed at maximising the return of their own investments. Instead, a deeper investigation reveals that the so-called “horizontal shareholding”iswidespread among large investment funds, according to which these operators – with a view to portfolio diversification – use to invest in a wide range of issuers, even in competition with each other. This entails their increased attention to prevention of systemic risks, even if this could mean sacrificing the maximisation of economic returns on individual investments, considering that the potential contagion among entities in default – and the consequent sectoral crisis – would produce a much more significant prejudice compared to that of prudent growth in the medium to long term of all issuers included in the investors’ portfolio[20].

3. That being said, the relationship between sustainabilityand organisational structuresis not particularly investigated yet.

As is well known, organisational structures must be adaptedto the company’s nature and size, implementing the traditional rules provided for joint stock companies by Article 2381 of the Italian Civil Code, as well as Article 2086, second paragraph, of the Italian Civil Code for the generality of collective enterprises.

However, can the decisions concerning the adequacy of the organisational structure be challenged in their merit? In other words, does the “business judgment rule”–as the typical scrutiny method of management action – also apply to decisions concerning the organisation of the company?

As the case law correctly observed, even organisational acts require discretionary choices by the directors, and therefore in such area – in lack of specific prescriptions –directors are protected by the exemption set forth by the business judgment rule[21].

Consistently with the above, Article 2086 of the Italian Civil Code currently in force is headed “Management of the company”, thus demonstrating that decisions concerning the organisational structure of the company are considered management choices in a broad sense and, therefore, must also be adjusted in terms of sustainabilitywitha view to prevent any corporate crisis.

This is to say that, in a legal system characterised by the proliferation of preventive measures, it is no longer predictable to undertake the risk of default[22], since the crisis of an entity may affect other market operators and finally reflect on the economy in general[23]. Hence, it is no longer permissible nowadays to manage companies on the basis of structures aimed at seeking profits at any cost, without taking into account the overall sustainability of all the production factors involved in the dynamics of the business.

On the assumption that the modern company – either issuer side or investor side – now pursues the aforementioned enlightened profit purpose, it remains to be understood whether the profit purpose, albeit mitigated, continues to drive the management of businessesor, instead, if it must be considered on the same level as any further interest affected by the company’s activity, leaving the selection of the objectives to be pursued to the management (so-called “stakeholderism”or strong institutionalism).

As will be noted below, we believe that the current legal and regulatory framework system states the rule of enlightened profit and does not allow, rebus sic stantibus, apure institutionalism in the sense referred to above[24].

First of all, despite the fact that the business risk is borne by several stakeholders at different levels, directors continue to be appointed by shareholders only. Therefore, among different potentially relevant interests, directors will naturally tend to prefer those of the shareholders, since the latter have the power to decide on their re-appointment or their removal. This is without prejudice to the fact that the rule of sustainability requires those who manage the company to consider the interests of an ideal, abstract and virtuous category of shareholders, to be taken as parameter to identify the long-term objectives to be achieved.

In addition, the current application of the business judgment rulewhich, as anticipated, protects directors from liability claims connected to transactions carried out by them when the latter are rational under an ex ante perspective thus avoiding an excessively risk adverseattitude in corporate management – also precludes stakeholderism.

Indeed, if the objective to be pursued is no longer profit maximisation (albeit within a reasonable, and therefore sustainable, period), any corporate choice could become rational in abstract if reviewed from a perspective other than that of profitability. The doubt arises, therefore, that the propaganda towards international top management stakeholderismis in some ways aimed at ensuring greater freedom of action to directors, who would be protected  from excessive shareholder interference in strategic choices.

In other words, a scope of application of the business judgment rulewhich istoo broad, in a context in which the interests to be pursued are not clearly identified, would result in this exemption to always operate – since any corporate choice would become defensible from some perspectives – or, on the contrary, never operating, since no corporate choice would presumably be ex ante rational under all points of view. Thus, even the current application of the business judgment rule leads to the belief that the company’s main purpose remains the maximization of profits, albeit enlightened in the terms outlined above.

In the same perspective, in Italy and Europe defensive measures taken exclusively by directors of target companies in the context of hostile takeovers are not, in principle, acceptable. There exists, indeed, a passivity rule as a default measure, according to which directors may not act as interpreters of shareholders’ interests in take-over transactions, since it is considered efficient for companies to be scalable[25]. It follows that, if profitability is not fully pursued – and thus the value of the company decreases excessively – the company will become more easily scalable, and directors will risk losing their board seats. Therefore, there is an endemic incentive for directors to keep the value of the stock high and thus focus on business’ profitability.

Lastly, it is worth noting that the rule of sustainability also affects the operational paradigm of supervisory authorities. The latter seem to be increasingly interested in monitoring the performance of supervised entities also with reference to the identification of any change in their shareholding structure and their ordinary management, as demonstrated by several regulatory indicators including the new rules on ownership structures, removal power, golden power, etc.[26].

As a result, if it is true that sustainability prevents the assumption of excessive business risk – and thus the occurrence of potential crises – this approach is appreciated not only by those who invest with a portfolio logic (i.e.,the most sophisticated funds), but also by directors (who will be more autonomous from shareholders) as well as by supervisory authorities.

4. In order to enhance the integration of sustainability into corporate governance and management systems – with a view to accelerate the achievement of the objectives set forth by the European Green Deal[27] – on February 23, 2022 the European Commission issued a proposal of Directive on Corporate Sustainability Due Diligence[28] (hereinafter, the “Proposal”)[29].

The explanatory memorandum accompanying the Proposal identifies the following objectives that the same aims to achieve:

i) Improve corporate governance practices to better integrate risk management and mitigation processes of human rights and environmental risks and impacts, including those stemming from value chains, into corporate strategies;

ii) Avoid fragmentation of due diligence requirements in the single market and create legal certainty for businesses and stakeholders as regards expected behaviour and liability;

iii) Increase corporate accountability for adverse impacts, and ensure coherence for companies regarding obligations under existing and proposed EU initiatives on responsible business conduct;

iv) Improve access to remedies for those affected by adverse human rights and environmental impacts of corporate behaviour.

Moreover, the memorandum highlights the interrelation existing, inter alia, between the Proposal and the recently adopted Directive No. 2022/2464 of December 14, 2022, amending Regulation (EU) No. 537/2014 as regards corporate sustainability reporting (CSRD). Indeed, on the one hand, a proper information collection for reporting purposes under the CSRD requires setting-up processes to identify adverse impacts in accordance with the due diligence duty that would be provided by the Proposal and, on the other and, the CSRD covers the last step of the proposed due diligence duty – and namely the reporting stage – for companies that are also covered by the CSRD.

The Proposal’s subjective scope of application includes large limited liability companies with more than 500 employees and a net turnover of more than EUR 150 million, while SMEs would be excluded even if they would be exposed to certain fulfilments if they have contract relationships with large companies covered by the Proposal. In addition, the Proposal would also apply to non-EU companies upon occurrence of the conditions set forth under the Proposal (i.e., the fact that a certain amount of their turnover is generated within the EU).

As regards the objective scope of application, the Proposal is focused and structured mainly on the corporate due diligence obligation and covers human rights and environmental adverse impacts defined in selected international conventions. The Proposal also sets forth certain directors’ duties to ensure a close link with the due diligence obligations and to clarify how directors are expected to comply with the duty of care to act in the best interest of the company.

In this perspective, specific reference shall be made, among others, to the provisions set forth by Articles 25 (“Directors’ duty of care”) and 26 (“Setting up and overseeing due diligence”) of the Proposal.

In particular, pursuant to Article 25 of the Proposal, “Member States shall ensure that, when fulfilling their duty to act in the best interest of the company, directors of companies […] take into account the consequences of their decisions for sustainability matters, including, where applicable, human rights, climate change and environmental consequences, including in the short, medium and long term. Member States shall ensure that their laws, regulations and administrative provisions providing for a breach of directors’ duties apply also to the provisions of this Article”.

The following Article 26 entrusts the companies’ directors with the responsibility to put in place and oversee the due diligence actions referred to in the Proposal (see Article 4), including the adoption of the due diligence policy provided under Article 5 of the Proposal, “with due consideration for relevant input from stakeholders and civil society organisations”. Also, paragraph 2 of Article 26 of the Proposal provides that “Member States shall ensure that directors take steps to adapt the corporate strategy to take into account the actual and potential adverse impacts identified pursuant to Article 6 [i.e., “actual and potential adverse human rights impacts and adverse environmental impacts arising from their own operations or those of their subsidiaries and, where related to their value chains, from their established business relationships”; noa.] and any measures taken pursuant to Articles 7 to 9 [i.e., measures to prevent potential adverse impacts, bringing actual adverse impacts to an end and establishing ad hoc complaints procedures; noa.]”.

However, at the date hereof, the Proposal is still under discussion within the Council of the European Union and its preparatory bodies, also in light of the outcome of the public consultation carried out, where the respondents expressed concerns on the opportunity to extend the scope of directors’ duty of care to balancing the interests of all stakeholders (especially those respondents selected among individual companies and business associations).

5. All the foregoing arguments lead to the following conclusions.

In Italy, the legislator allows shareholders of limited liability companies to benefit from an exemption to the general principle of asset liability underArticle 2740 of the Italian Civil Code by limiting their exposure for corporate obligations to the contributions they made in the company’s corporate capital[30].

Just as the legal system has granted such exemption, then new provisions could provide that shareholders may benefit of limited liability, for instance, only if the company in which they invested pursues interests “other” than that of profit maximization, thus opening the field (de iure condendo) to true institutionalism. However, such a radical legislative choice, although possible, would raise certain issues.

First, the introduction of social and environmental obligations binding upon large companies has represented an instrument aimed at filling the regulatory gaps characterizing a global and interconnected system, in which imperative rules – including antitrust, consumer protection, labour law, environmental protection, etc. – are not capable of organically driving the actions of multinationals.

Therefore, it could seem more efficient to promote the dissemination of a rule of conduct – i.e., the company’s sustainable development – valid for all corporations with no distinctions, according to which each of them becomes responsible for the “ESG” consequences of its actions. However, such approach could justify a lack of legislative initiatives aimed at establishing a clear regulatory framework within which companies can legitimately operate.

In addition, an excessive focus on social and environmental impact issues in business management opens the path to greater interference of collective interests over corporate dynamics, with the risk to legitimize a return to dirigismein the economic-financial sector. The proposal for a directive on Corporate Sustainability Due Diligenceis the proof that an exaltation of corporate social responsibility can lead to a significant strengthening of public supervision over private business activities for the protection of interests that are deemed of higher importance.

Moreover, an uncontrolled development of stakeholderismcould lead to a widespread reduction in the profitability of economic activities, which in turn could trigger a dangerous race to the bottom caused by a lower attitude to invest and thus, ultimately, to slow-down business growth. Last, an excess of stakeholderismwould put directors at the service of multiple interests that are physiologically in conflict with each other. This may represent a significant concern, since – as Carlo Goldoni’s well-known comedy “Il servitore di due padroni” (1745) teaches – when an agentpursues a wide range of objectives, then he/she risks to disappoint all his/her principals.

[1] See, among others, C. Mayer, Prosperity, Oxford, 2018; The British Academy, Principles for Purposeful Business. How to deliver the framework for the Future of the Corporation. An Agenda for business in the 2020s and beyond, November 2019; B. Spiesshofer, Responsible Enterprise. The Emergence of a Global Economic Order, Munich-Oxford, 2018; A. Edmans, Grow the Pie. How Great Companies Deliver Both Purpose and Profit, Cambridge, 2020.

[2] See in this respect F. Capriglione, Responsabilità sociale d’impresa e sviluppo sostenibile, in Riv. Trim Dir. Econ., 2022, I, 1 et seq.

[3] See among others M. Sepe, Sviluppo, sostenibilità e sana e prudente gestione in ambito finanziario, in Diritti e mercati nella transizione ecologica e digitale. Studies dedicated to Mauro Giusti edited by M. Passalacqua, Padua, 2021, 69 et seq.

[4] On this topic see Vv. Aa., Dialoghi tra emittenti e azionisti: istituti e principi, in Riv. soc., 2021, 1324 et seq.; L. Benedetti, L’engagement soci/amministratori e la governance delle s.p.a.: considerazioni sistematiche, in Riv. soc., 2022, 1087 et seq.

[5] On “sustainable” safe and prudent business management in banks see R. Lener – P. Lucantoni, Sostenibilità, ESG e attività bancaria, in Banca borsa titoli di credito, 2023, I, 12 et seq.

[6] See, inter alia, M.J. Roe, Why Americas’s CEO are talking about stakeholder capitalism, in Project Syndicate, 4 November 2019; P. Marchetti, Dalla Business Roundtable ai lavori della British Academy, in Riv. soc., 2019, 1303 et seq.; U. Tombari, Corporate purpose e diritto societario: dalla “supremazia degli interessi dei soci” alla libertà di scelta dello “scopo sociale”?, in Riv. soc., 2021, 5 et seq.; M. Ventoruzzo, Beware of the Panacea of Stakeholder-friendly Corporate Purposes, in Oxford Business Law Blog, April 2020.

[7] See, inter alia, P. Marchetti, Il nuovo codice di autodisciplina delle società quotate, in Riv. soc., 2020, 268 et seq.; Id., Sull’attuazione del Codice di Corporate Governance, in Riv. soc., 2021, 1406 et seq.; P. Cuomo, Il consiglio di amministrazione e la gestione dell’impresa nel codice di corporate governance, in Riv. soc., 2021, 79 et seq.; G. Strampelli, Soft law e fattori ESG: dai codici di corporate governance alle corporate e index guidelines, in Riv. soc., 2021, 1100 et seq.

[8] See G. Alpa, Responsabilità degli amministratori di società e principio di “sostenibilità”, in Contratto e impr., 2021, 721 et seq.; V. Lemma, Quali orizzonti per la corporate governance? (Spunti dal libro “Metamorfosi della governance bancaria” e dal nuovo regolamento della Banca d’Italia in materia di governo societario del 5 dicembre 2019), in Riv. Trim. Dir. Econ., 2020, 103 et seq.

[9] See M. Friedman, The Social Responsibility Of Business Is to Increase Its Profits, in The New York Times, September 13, 1970.

[10] See F. Capriglione-A. Sacco Ginevri, Metamorfosi della governance bancaria, Milan, 2019, 227 et seq.; A. Urbani, Le nuove forme della territorialità nella disciplina secondaria delle banche di credito cooperativo, in Riv. Trim Dir. Econ., 2019, 118 et seq.; I. Sabbatelli, Per un rinnovo della specificità operativa bancaria, in Riv. Trim Dir. Econ., suppl. no. 1, 2022, 191 et seq.

[11] See D. Siclari, “Trasformazione” in società benefit e diritto di recesso, in Riv. Trim. Dir. Econ, 2019, 80 et seq.; G.A. Rescio, L’oggetto della società benefit, in Riv. dir. civ., 2022, I, 462 et seq.; G.D. Mosco, L’impresa non speculativa, in Giur. comm., 2017, I, 216 et seq.

[12] On this topic see, among others, M.L. Passador, Sulla natura transtipica del divieto di patto leonino, in Giurisprudenza italiana, 2020, 1412 et seq.

[13] See, ex multis, F. Capriglione, Il sistema finanziario verso una transizione sostenibile, in Riv. Trim Dir. Econ., 2021, 241 et seq.

[14] See Article 16 of Legislative Decree No. 39/2010.

[15] See M. Passalacqua, Diritto del rischio dei mercati finanziari: prevenzione, precauzione ed emergenza, Padua, 2012, 11 et seq.; G. Sciascia, La regolazione giuridica del rischio sistemico, Milan, 2021, 25 et seq.; V. Troiano-A. Sacco Ginevri, The “preparation” function in the new banking legislative framework, in this Journal, 2016, 57 et seq.; F. Capriglione, La problematica dei crediti deteriorati, in Riv. Trim. Dir. Econ., suppl. no. 2 to issue 2/2019, 1 et seq.

[16] E.g. Directive 2014/94/EU on non-financial disclosure; see also D. Rossano, La finanza alternativa nella Capital Markets Union, in Diritti e mercati nella transizione ecologica e digitale, Padua, 2022, 427 et seq.; L. Locci, Brevi riflessioni in materia di fattori ESG e informativa non finanziaria nella crisi da Covid-19, in Riv. Trim. Dir. Econ., suppl. 1, 2020, 124 et seq.

[17] See G. Luchena, La nozione giuridica di aiuto di Stato, in Concorrenza e aiuti di Stato in Europa edited by G. Luchena and B. Raganelli, Turin, 2022, 71 et seq.

[18] See F. Denozza, Lo scopo della società tra short-termism e stakeholder empowerment, in Orizzonti del dir. comm., 2021, 29 et seq.

[19] See M. Stella Richter Jr, Long-termism, in Riv. soc., 2021, 49 et seq.

[20] See M. Condon, Externalities and the common owner, in Washington L. Rev., 2020, n. 95, 1; J.C. Coffee Jr., The future of disclosure: ESG, common ownership, and systematic risk, in European Corporate Governance Institute – Law Working Paper 541/2020, available at; L. Enriques, Missing in Friedman’s Shareholder Value Maximization Credo: The Shareholders, in Riv. soc., 2020, 1286 et seq.; M. Maugeri, Informazione non finanziaria e interesse sociale, in Riv. soc., 2019, 992 et seq.

[21] For references, please see A. Sacco Ginevri, Crediti deteriorati e business judgment rule, in Riv. Trim. Dir. Econ., supplement 2, 2019, 161 et seq.

[22] See U. Santarelli, Mercanti e società tra mercanti, Turin, 1998, 66 et seq.

[23] Amplius F. Capriglione, Il dopo Covid-19: esigenza di uno sviluppo sostenibile, in NGCC, suppl. 5, 2020, 26 et seq.; M. Pellegrini-A. Davola, Il ruolo dello Stato nella transizione della finanza verso la sostenibilità, in Diritti e mercati nella transizione ecologica e digitale, Padua, 2022, 83 et seq.

[24] See L. A. Bebchuk-R. Tallarita, The Illusory Promise of Stakeholder Governance, in Cornell Law Review, 2020, 91 et seq.; F. D’Alessandro, Il mantello di San Martino, la benevolenza del birraio e la Ford modello T, senza dimenticare Robin Hood (Divagazioni semi-serie sulla c.d. responsabilità sociale dell’impresa e dintorni), in Riv. dir. civ., I, 2022, 409 et seq.; M. Stella Richter Jr, Long-termism, mentioned, 16 et seq.; C. Angelici, Divagazioni sulla “responsabilità sociale” dell’impresa, in Riv. soc., 2018, 1 et seq.; C. Angelici, La società per azioni e gli “altri”, in Vv. Aa., L’interesse sociale tra valorizzazione del capitale e protezione degli stakeholders, Milan, 2010, 53 et seq.; E. Barcellona, La sustainable corporate governance nelle proposte di riforma del diritto europeo: a proposito dei limiti strutturali del c.d. stakeholderism, in Riv. soc., 2022, 1 et seq.

[25] See, among others, L. Enriques, Quale disciplina per le acquisizioni ostili? Alcuni modelli teorici e la soluzione italiana, in Mercato concorrenza regole, 1999, 2, 182 et seq.

[26] See V. Troiano, Soggettività finanziaria e forme di aggregazione, in Riv. Trim Dir. Econ., supplement 1, 2022, 92 et seq.

[27] See the Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions on “The European Green Deal”, dated December 11, 2019, COM(2019) 640 final, available on

[28] Reference is made to the proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, dated February 23, 2022, COM(2022) 71 final, available on

[29] On this topic see, among others, L. Enriques, The European Parliament Draft Directive on Corporate Due Diligence and Accountability: Stakeholder-Oriented Governance on Steroids, in Riv. soc., 2021, 319 et seq.; G. Racugno – D. Scano, Il dovere di diligenza delle imprese ai fini della sostenibilità: verso un Green Deal europeo, in Riv. soc., 2022, 726 et seq.; C.G. Corvese, La sostenibilità ambientale e sociale delle società nella proposta di “Corporate Sustainability Due Diligence Directive” (CSDDD), in Banca Impresa Società, 2022, 391 et seq.; S. Bruno, Il ruolo della s.p.a. per un’economia giusta e sostenibile: la Proposta di Direttiva UE su “Corporate Sustainability Due Diligence”. Nasce la “stakeholder company”?, in Rivista di Diritti Comparati, 2022, 303 et seq.

[30] See G. Marasà, Le “società” senza scopo di lucro, Milan, 1984, 1 et seq.; G. Conte, L’impresa responsabile, Milan, 2018, 66 et seq.


* Full Professor of Economic Law at the International Telematic University “UNINETTUNO” of Rome, Vice Dean of the Law faculty at the International Telematic University “UNINETTUNO” of Rome, Director of the PhD course on “Law and economics of the digital society” at the International Telematic University “UNINETTUNO” of Rome, scientific coordinator for the International Telematic University “UNINETTUNO” of the European project “Digileap: digitally shifting EU’s law & legal studies’ content in higher education”, and Country Reporter for Italy 2021-2023 of the CELIS Institute.

** PhD candidate at UniMarconi University of Rome, research grant at the Department of Business and Management at Luiss G. Carli University of Rome.

The entire work has been thought and discussed by both authors; however, paragraphs 1, 2 and 5 are attributable to Andrea Sacco Ginevri, while paragraphs 3 and 4 are attributable to Lorenzo Locci.



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