La clausola di prelazione statutaria impropria nelle società a partecipazione pubblica

The clause formulated in paragraph 2 of art. 10 of the TUSP, regarding the right of pre-emption, posed the problem of verifying whether and in what terms the public tender procedures are compatible with this kind of statutory clauses, which not only affect the free circulation of shareholdings, but actually prevent a competitive comparison. A first “combinatorial” interpretation led to the belief that the statutory pre-emption clauses are inapplicable. This interpretation is now contradicted by a recent opposite jurisprudential orientation – which considers the pre-emption clauses, whether proper or improper, valid –, that constitutes an opportunity to re-examine, after the adoption of legislative decree no. 175/2016, the theme of public intervention in economy.