Nel corso degli anni, il Parlamento europeo e il Consiglio hanno emanato numerose direttive in materia di diritto societario, volte a modernizzare il governo societario e rafforzare la democrazia degli azionisti. In questo contesto, l’autore analizza la direttiva 2017/ 828/UE, nota anche come Direttiva sui diritti degli azionisti II.

Over the years, the European Union institutions have taken a series of initiatives to modernize corporate governance and strengthen shareholder democracy. As reported in the Communication to the Council and the European Parliament of 21 May 2003 and the Resolution of the European Parliament of 21 April 2004, these goals should be achieved by enhancing the shareholders’ rights and increasing the transparency duties among the companies and institutional investors. As the first step in this direction, the Directive 2007/36/EC (also known as the SRD I) was adopted to facilitate the exercise of voting rights of the shareholders, by establishing the principle of equal treatment of investors and setting forth the requirements to participate in the shareholders’ meeting. However, the weaknesses of the previous regulatory framework have been revealed during the financial crisis. On these grounds, the Commission has undertaken a deep review of the corporate governance rules, pursuing the creation of value in the long-term and the development of an inclusive and sustainable enterprise strategy, as addressed by the “Agenda 2020.” As reported in the “2010 Green Paper on Corporate Governance in Financial Institutions and Remuneration Policies” and the “2011 Green Paper on an EU Corporate Governance Framework”, the main issues affecting companies’ growth in the EU territory include a lack of shareholders’ engagement, an excessive short-term risk-taking approach, and the poor quality of the information exchanged among companies and investors. The results of the consultations addressed with the Green Papers put forward the premises for the issue of the directive 2017/828/UE (or Shareholders Rights Directive II), amending the one previously adopted in 2007. The SRD II represents a further step toward solving the market failures related to information asymmetries and agency problems underpinning the “shareholder apathy” and conflict of interests with the management. From this perspective, the SRD II has significantly reformed the corporate governance framework by introducing the identification of the shareholders, the obligation to disclose the engagement policies, and the transparency duties on proxy advisors. Besides, the directive provides shareholders with the right to vote on the remuneration policies (say on pay) to align the compensation with the performance of the directors and transparency rules to enhance the control rights during the related parties’ transactions. This paper analyzes the implementation of the SRD II in Italy, with a special focus on the provisions related to the long-term engagement of the institutional investors and the asset managers, also accounting for the environmental, social, and governance (ESG) factors and the issues that may discourage the investors’ involvement in corporate governance. Furthermore, the say on pay system will be examined [continua..]

SOMMARIO:

1. The rising importance of the shareholder activism - 2. The European perspective: The development of the corporate governance regulatory framework, from Directive 2007/36/EC to the Directive 2017/828/EU - 3. The stewardship of the institutional investors and the implementation of the SRD II provisions in Italian Law - 3.1. The development of the corporate purpose in the light of the protection of stakeholders and the long-term orientation - 3.2. The stewardship duties and the disclosure obligations - 3.3. The reduction of agency costs: enhancing the transparency of the proxy advisors - 3.4. The enhancement of the voice rights: The votes on the remuneration policy - 3.5. Engagement and “selective” dialogs with the institutional investors: The information exchange with the board of directors - 4. Another legal constraint to the engagement: The definition of “acting in concert” - 5. Stewardship duties and the balance with the powers of the directors - 6. Final reflections and future perspectives - Literature and legal sources - NOTE

1. The rising importance of the shareholder activism

Shareholder activism is not a recent phenomenon, although the most important literature focuses on activism only during the last decades. Scholars define the shareholder activist as “an investor who tries to change the status quo through ‘voice’ without a change of control of the firm” [1]. In other words, activism refers to the arrangements whereby investors adopt an active behavior and communicate their ideas and opinions to the board of directors, or the exercise of the voice rights as a reaction to the management of the company [2]. One of the first documented form of activism can be attributed to the Gilbert Brothers, who formed the first shareholder activist group to make the management more reliable and tried to transform the annual meetings into a real forum for discussion between managers and shareholders [3]. However, before the ‘90s, shareholder activism was latent: In 1932, Berle and Means affirmed that the shareholders were powerless, while the managers were powerful. According to them, shareholders had no interest to take an active role in monitoring corporate affairs, not only for economic reasons but also for the corporate law proxy rules. Therefore, they were “rationally passive” and voted with the managers [4]. Of course, during Berle and Means’time, the situation was different: the shareholding was dispersed and most shareholders were individuals. The first attempt to enforce the voice rights dates to 1934 when Congress adopted the Section 14 of the Securities Exchange Act to authorize the SEC to develop rules related to the solicitation of the proxies. In 1942, the SEC introduced Rule 14-a8, which allowed the shareholders to present proposals for inclusion in the shareholder meeting’s agenda [5]. The scenario has significantly changed with the rise of the institutional investors: starting from the ’90s, financial markets experienced significant growth of shareholders’ proposals and campaigns promoted by the institutional investors against managers’ takeover defenses, accompanied by an increase in their participation in companies [6]. The progressive concentration of shares in the hands of institutional investors put them in a more favorable position to influence company affairs. The Wall Street Rule, or exit threat, has been considered the main form of activism for a long time. However, the abovementioned rule has revealed its [continua ..]

2. The European perspective: The development of the corporate governance regulatory framework, from Directive 2007/36/EC to the Directive 2017/828/EU

Europe has seen a growth in the importance of institutional investors and activism later than the United States. In this context, European institutions have recognized the importance to make the exercise of the shareholders’ rights more effective. Before the introduction of Directive 2007/36/EC, studies revealed a significant absence of the shareholders at meetings, especially in a cross-border context [17]. The directive, setting forth the principle of equal treatment of all shareholders, has been drafted to facilitate the exercise of voting rights by shareholders in the entire EU territory. The regulation is based on the continuance of the initiatives undertaken by the Commission to enhance corporate governance [18]. Indeed, as reported by the Commission in the Communication of May 21, 2003, the protection of savers and shareholders constitutes a crucial prerequisite for growing confidence in business relationships, and companies are likely to be more competitive [19]. However, the first version of the SRD did not contain any reference to long-term investments or sustainability. The system revealed the weaknesses connected to the lack of a long-term vision only after the 2007 financial crisis. It was found that financial markets and investors are more attracted by short-term profits. The directors, in the attempt to pursue short-term returns, assume high-risk investment strategies, causing negative effects that reflect not only on the company returns and the shareholders but also on other stakeholders (such as employees and creditors). Such effects could be more dramatic when the company involved is bigger: History has demonstrated that some situations of excessive risk-taking approach, especially in the financial sector, could easily lead a country to face an economic crisis. How can this domino effect be avoided? In the context of the crisis that occurred during the last decade, the Commission has individuated smart, sustainable, and inclusive growth as the elements to get Europe “back on track” [20]. According to the Commission, these targets can be achieved by intervening in the corporate governance regulation. Hence, in 2010 and 2011, the Commission published two Green Papers. More specifically, the Green Paper of June 2, 2010 [21], refers to the corporate governance of financial institutions. The second Green Paper, released on April 5, 2011 [22], provides an overall evaluation of the corporate [continua ..]

3. The stewardship of the institutional investors and the implementation of the SRD II provisions in Italian Law

Transparency and accountability of the institutional investors move along three different lines. First, Article 3g provides that institutional investors must publicly disclose an engagement policy that describes how they integrate shareholder engagement in their investment strategy. This policy will describe, among the other things, how they monitor investee companies on relevant matters, including strategy, financial and non-financial performance, and risk, capital structure, social and environmental impact, corporate governance, and conduct a dialog with the investee companies. Institutional investors will also disclose their voting behavior and how they use the proxy advisors’ services. The disclosure is based on the “comply or explain” approach. Second, pursuant to Article 3h, institutional investors are also required to disclose how their investment strategies are consistent with the profile and duration of their liabilities, in particular, the long-term liabilities, and how they contribute to the medium-term to the long-term performance of their assets. Specific disclosure obligations are outlined in connection with the arrangement with asset managers. Finally, Article 3i concerns the transparency between asset managers and institutional investors, providing that they must first disclose to the institutional investor with whom they have entered an arrangement how their investment strategy and its implementation thereof complies with that arrangement and contributes to the medium-term to the long-term performance of the assets of the institutional investor or the fund. The SRD II has been implemented in Italy with Legislative Decree No. 49/2019, which amended: a) Art. 2391-bis c.c., by adding a new paragraph that grants the CONSOB the power to regulate the details, on a regulatory level, in compliance with the limits set forth by the law; b) Legislative Decree No. 58/1998 (Consolidated Financial Act or “CFA”); c) Legislative Decree 209/2005 (Code of Private Insurances); and d) Legislative Decree No. 252/2005. The CFA, which is substantially reproduced in Article 83-duodecies, the abovementioned provisions.

3.1. The development of the corporate purpose in the light of the protection of stakeholders and the long-term orientation

Before analyzing the effects of the provisions concerning the stewardship of institutional investors, this paper will focus on the renewed context and the evolution of the corporate purpose in the light of the SRD II. The Italian law does not give an explicit definition of corporate purpose. Article 2082 defines the entrepreneur as the individual who professionally carries out an economic and organized activity based on the production and exchange of goods and services. Articles 2381-bis and 2475 of the Italian Civil Code provide the duty of the managers to pursue the company object. Besides, Article 2441 allows the shareholders’meeting to resolve upon a capital increase by excluding or limiting the option that is right for the shareholders when it is necessary to pursue the corporate interests. By looking at the definition of an entrepreneur, the corporate purpose appears to be orientated on an economic basis, focused on the returns on the entrepreneurial activity. However, the nature of the corporate purpose appears more complex and blurred. Regarding the orientation of the corporate purpose, two theories were developed by scholars [29]. The first affirmed a contract-based view of the corporate purpose. In other words, the corporate purpose should be identified with the interests of the shareholders in increasing the value of the shares (Shareholder Value perspective). The second theory reconducts and considers the corporate purpose as autonomous and higher-ranking than the shareholders’interests. In such a perspective, the corporate purpose is more orientated to the protection of non-corporate interests of different stakeholders [30] (Stakeholder perspective). However, the aforesaid dichotomy does not reflect the reality. It is a matter of fact that the company is not self-standing: its activities and goals appear inevitably connected with third parties, as the company produces positive and negative externalities. Hence, the corporate purpose inevitably results in being integrated with the interests of the stakeholders [31]. Recent legislation, codes of conduct, and market trends suggest that the contrast between shareholder and stakeholder value has been definitively surpassed and the corporate purpose is moving in two directions. These are the protection of the interests of the stakeholders, particularly regarding the ESG factors and on the Corporate Social Responsibility (CSR), and the long-term orientation of the [continua ..]

3.2. The stewardship duties and the disclosure obligations

Provisions related to the stewardship duties and disclosure obligations are aimed to involve the institutional investors in the corporate governance by requiring the adoption of an engagement policy and assigning them the duty to monitor the investee company. The provision is inspired by the Responsible Investment Principle No. 2 [43] to promote a more conscious shareholding on the ESG factors. Institutional investors are appointed as the “gatekeepers” [44] of good corporate governance practices, including long-term strategies. Therefore, they are invested with a double accountability role: on the one hand, they have fiduciary duties toward their beneficiaries and clients, while on the other hand, they have a public duty, to monitor and disclose their stewardship activities based on the “comply or explain” approach toward the public [45]. Indeed, such disclosure obligations, as provided by the Action Plan, should strengthen companies’ accountability to civil society, including the stakeholders. The stewardship duties of institutional investors raise some questions about the adequacy of the institutional investors to comply with such broad stewardship duties. First, shareholder activism is not a constant factor but is based on an economic convenience assessment. Shareholders are not obliged to engage in it if such an activity entails costs surpassing the benefits. Second, institutional investors are entrusted with fiduciary duties toward their beneficiaries, including the diversification of the financial risks and the maximization of the investments. The beneficiaries might either be interested in or indifferent to environmental issues or the long-term strategies of the company. Besides, stewardship requires a continuous exchange of information with board members and proxy advisors. To sum up, institutional investors act in a “web of interests” and relationships that may diverge from the protection of environmental impact. Therefore, there is a risk that the public interests the directive is aimed to protect are sacrificed by the institutional investors at their convenience. Undoubtedly, the European legislation does not require that the institutional investors put the public interests on the top, but rather, to take them into account, thereby aligning their investment strategy with those interests and not merely pursuing profit [46]. The directive tries to solve the problem of the [continua ..]

3.3. The reduction of agency costs: enhancing the transparency of the proxy advisors

The EU legislator has accounted for the potential influence that proxy advisors might have on the voting decisions of the shareholders [51]. Proxy advisory services appeared on the US market in the ‘80s and their importance increased starting from 1988, in connection with the ERISA Act [52], when the Employment Benefits Securities Administration set forth that the exercise of voting rights was included in the fiduciary duties of the fund managers [53]. Proxy advisors operate in an oligopolistic market, given the small number of firms that offer the examination of resolution proposals. Such services require considerable investments in study and research activities, which may represent an obstacle for the competition by new operators [54]. In Europe, the proxy advisory market appears still evolving [55]. This evolution led the EU institution, focuses on transparency and the influence on shareholders’activism [56]. On one side, proxy advisors contribute to reducing agency costs and the problems connected with collective action. This may explain why the growth of the proxy advisory services appears strictly connected with the growth of the participation of institutional investors. The latter group is obligated to diversify its equity portfolio to reduce the risks. However, the diversification implies the necessity to study various proposals for a resolution, with a noticeable increase in cost. From this perspective, proxy advisors permit institutional investors to reduce the costs connected to activism. On the other hand, proxy advisors are intermediaries between the investors and the company, who make the voting exercise more complex and increase the costs of controls [57]. Further, the activity of the proxy advisors might be driven by conflicts of interest, as some of them offer advisory services concerning the quality and rating of corporate governance. One of the most critical issues of the proxy advisors is a lack of transparency in their voting recommendation [58]. To reduce the conflicts of interest and information asymmetries, in 2013, the European Securities and Markets Authority (ESMA) published a report encouraging proxy advisors to adopt a code of conduct based on a series of principles [59]. Following the report from ESMA, the main proxy advisors carried out public consultation and adopted the Best Practice Principles (BPP) for Shareholder Voting Research Providers. Although proxy [continua ..]

3.4. The enhancement of the voice rights: The votes on the remuneration policy

The engagement empowerment is concerned with the enhancement of the voice rights and reduction of the agency costs, as well as the dialog between management and investors. In connection with the voice rights, according to Articles 9a and 9b, shareholders have the right to vote on the remuneration policy (say on pay). The purpose of say on pay is to enhance the relationship between the remuneration policy and directors’ performance [64]. The shareholders shall first elaborate on the remuneration policy by expressing a binding or advisory vote. Second, they will do so on the remuneration report related to the compensation awarded during the most recent financial year with an advisory vote. The say on pay is primarily aimed to enhance the relationship between the remuneration policy and performance of the directors. Companies are used to compensating the executive directors with a fixed and variable remuneration, connected to certain performance targets. Indeed, directors may be short-term oriented and attracted to carry out more risky transactions to achieve variable pay. For this reason, the intervention of the shareholders is aimed to encourage the responsibility of the directors. Furthermore, the say on pay permits the alignment of the interest of the investors and the management, given that the institutional investors must disclose their policy concerning long-term orientation and investment strategies. From this perspective, say on pay represents a sort of feedback [65] regarding the activity of the management in pursuing the corporate interest in a long-term perspective and the protection of the stakeholders. Before the implementation of the SRD II, Article 123-ter, par. 6 of the CFA already provided a non-binding vote on the remuneration policy, but it was considered as a “moral suasion” method [66] for the management. In the revised version, the Italian legislator opted for a binding vote [67] for the first section [68] of the remuneration report and an advisory vote for the second section [69]. On these bases, the binding vote gives shareholders a powerful voice right, that is, to have the remuneration policy approved by the shareholders’meetings, the directors will inevitably have to start a dialog with the investors. Otherwise, they will have to accept the risk of rejection. To achieve these results, the dialog between managers and shareholders should be continuous and not limited to the [continua ..]

3.5. Engagement and “selective” dialogs with the institutional investors: The information exchange with the board of directors

The SRD II encourages investors to engage in a dialog with the companies. As stated in the previous paragraphs, the SRD II encourages every form of communication with the board, both during and outside of the meetings. The revised Italian Corporate Governance Code underlines the importance of the dialog between managers and institutional investors, providing under Article 1, Recommendation 3, that “upon proposal of the chair in agreement with the chief executive officer, the board of directors adopts and describes in the corporate governance report a policy for managing dialogue with the generality of shareholders, taking into account the engagement policies adopted by institutional investors and asset managers”. Similarly, the UK Corporate Governance Code 2020 provides under Section 1, par. 3 that the chair should seek regular engagement with major shareholders. The investors can communicate with the company through the investors’relator officers or hold informal and selective dialogs directly with the managers. The information exchange with the investor relator can resolve the problems related to the information asymmetries among the shareholders; however, selective dialogs are considered the best way to get information about corporate transactions. The lack of regulation and the wide variety of informal dialogs raise some concerns about the adherence to the principle of equal treatment of the shareholders [71], given the dialogs provoke information asymmetries among the shareholders, as well as the necessity to avoid accessing price-sensitive information. About the first issue, Article 92 CFA should be interpreted from a substantive perspective regarding the kind of investors and the specific conditions. If the dialogs are necessary to enact an engagement policy in compliance with the SRD II provisions and, therefore, to pursue corporate purpose, a different treatment of the investors appears justified. Moreover, it does not contrast with the ratio of Article 92, which implies equal treatment only if the shareholders are in the “same conditions” [72]. The compliance with the Market Abuse Regulation (MAR) [73] appears to be more complex when the institutional investors are involved in a bilateral dialog with the managers. The purpose of MAR is not to prohibit general discussions concerning the business and market developments [74], but only to avoid manipulative strategies due to the knowledge of [continua ..]

4. Another legal constraint to the engagement: The definition of “acting in concert”

As described in par. 1.2, the legal obstacles to shareholder activism are context specific. Regarding EU regulation, in the 2011 Green Paper and the 2012 Action Plan, the Commission highlighted that one of the most problematic legal obstacles to engagement is the uncertainty of the conceptual boundaries of acting in concert [81]. The EU Commission has recognized this issue and the necessity of a clarification. Otherwise, shareholders might be induced to avoid any cooperation not to be subject to the obligations related to the takeover bids and adopt an apathetic approach. Article 101-bis, par. 4 of the CFA, transposing the definitions of the Transparency Directive 2004/109/EC and the Takeover Directive 2004/25/EC, defines persons acting in concert as any person or legal entity “cooperating together on the basis of a specific or tacit agreement, verbal or in writing, albeit invalid or without effect, for the purpose of acquiring, maintaining or strengthening control over the issuer or to counteract achievement of the aims of a takeover bid or exchange tender offering”. Par. 4-bis establishes legal presumptions, identifying certain situations in which a person or a legal entity is considered acting in concert “in any event” [82]. Finally, par. 4-ter allows CONSOB to identify, by regulation, other situations in which the existence of concerted action is presumed or the provisions regarding the concerted action do not apply. If a concerted action is recognized according to Article 101-bis, Article 109 sets forth that the parties acting in concert shall be jointly obligated to promote a global takeover bid pursuant to Article 106 or commit to squeezing out the remaining securities under Article 108 of the CFA. The definition of acting in concert is overly broad and does not exactly define its boundaries. The uncertainty appears to be caused by the fact that the two abovementioned Directives do not provide a coincident definition of acting in concert [83]. In the light of the above, it is necessary to make a distinction between activism and concerted action aimed to take the control of the company. The need for certainty has been pointed out in 2008 by the European Securities Markets Group (ESME) [84]. This recommends the Member States to implement the notion of acting in concert as closely as possible to the purpose of the Directives, as well as to apply a better distinction between activism and monitoring [continua ..]

5. Stewardship duties and the balance with the powers of the directors

The enhancement of the shareholders’ voice rights and the special duties of institutional investors connected to the new role as “stewards” of the company make raise some concerns about the right balance with the powers of the directors. The first concerns are about the binding vote on the remuneration policy, which is considered as a qualified administration competence [87]. If a binding vote appears, on the one hand, it is more efficient than an advisory vote in aligning the interests of directors and investors. However, on the other hand, there is the risk that the decisions might be subject to shareholders’ discretion, who may not always have the necessary knowledge to evaluate the skills and the expertise of managers nor be interested in promoting a long-term strategy. Furthermore, it should be considered that some activist campaigns promoted by institutional investors and the pursuit of short-term performance might significantly influence the company operations and reduce the management powers of the directors [88]. What if the activism affects company performance? In this regard, looking at the US experience, some authors [89] recalled the In Re PLX Technology Inc. Shareholders Litigation [90] case, decided by the Delaware Court of Chancery. This case found an activist shareholder guilty jointly with a manager; the first for having pressured the managers to sell the company for an unfair price and pursued a short-term strategy, “thereby creating a divergent interest in pursuing short term performance at the expense of long-term wealth” [91], and the second for breaching their fiduciary duties. In the light of the above, it should be questioned how the managers will deal with the new stewardship role granted to the institutional investors, and how they will balance the different interests. Not causally, it has been argued that institutional investors have the power to address the company decisions and some forms of activism can weaken the role of the managers [92]. However, some authors are skeptical about the opportunity to recognize a form of liability of the institutional investors, arguing that it would definitively discourage investors to partake in any form of commitment [93].

6. Final reflections and future perspectives

The SRD II regulation is aimed to make the investors more responsible regarding their investment strategy, which should be focused on sustainable and long-term growth. The new perspective has been welcomed by market actors, as suggested by the annual Black Rock CEO letters [94] and the Business Roundtable. Empirical evidence demonstrates that under certain conditions, the shareholders’ stewardship can contribute to the development of good corporate governance practices and the increase of value [95]. However, as some argued [96], such evidence is not univocal and coherent. Also, it has been contended that the time horizon is connected to the risk appetite of each investor and the directive should not contrast or at least, deal differently, with those that are orientated to short-term performances. Concerning hedge funds, their role is questionable, as they are known for their short-term orientation and disruptive influence on target companies. On the other hand, they are considered activist shareholders and can contribute to the company’s performances and even encourage institutional investor activism. Furthermore, some hedge funds are manifesting a growing interest in ESG factors [97]. Besides the announcements, it should be verified if all these initiatives will be followed by an effective change in corporate governance. Having regard to the stewardship duties, it does not appear the institutional investors can assume the role of the protectors of public value, thus replacing the authorities’ intervention. Institutional investors might not be interested or incentivized in monitoring the inclusion of ESG factors. However, there is no doubt that the SRD II and progressive awareness of the final investors and clients toward environmental and social matters will pressure the institutional investors to be more accountable, and that COVID-19 the pandemic might accelerate this process. To achieve this, the quality of disclosure, in any case, appears crucial. Thus, national authorities should discourage any form of “boilerplate” reports. Further, in any case, even if institutional investors cannot determine a change in market orientation by themselves, it should be highlighted that the EU regulatory framework will change again. In the light of the 2018 Action Plan, new EU Commission initiatives suggest the involvement of the stakeholders in corporate governance and potential amendments to the [continua ..]

Literature and legal sources

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