Il limite all’attivo delle banche popolari prima e dopo la Legge Capitali tra concentrazione del sistema, prevenzione delle crisi bancarie e specificità cooperativa

The increase of the asset threshold for Italian banche popolari (“people’s banks”) from €8 to €16 billion, enacted by the 2024 Capital Markets Law (Article 18 of Law No. 21 of 2024), represents a meaningful—albeit implicit—recalibration of the proportionality principle in banking regulation. While formally limited to a quantitative adjustment, the reform invites broader reflection on the regulatory logic governing cooperative banking models. The 2015 reform relied on a rigid, size-based criterion to trigger the mandatory conversion of cooperative banks into joint-stock companies (Article 1 of Decree-Law No. 3 of 2015), on the assumption that, beyond a fixed balance-sheet threshold, the cooperative form becomes structurally incompatible with sound and stable banking activity, effectively operating as a generalised early-intervention measure applied to the sector as a whole. Such an approach prioritised regulatory simplicity over supervisory nuance, compressing institutional diversity and substituting ex ante legislative automatism for case-by-case prudential assessment. From a proportionality standpoint, this raised concerns as to the necessity and adequacy of the measure, particularly given the availability, under EU-derived banking law, of more granular supervisory tools capable of addressing risks at the level of individual institutions. These concerns were explicitly scrutinised—though ultimately neutralised—by both the Italian Constitutional Court (Judgment No. 99 of 2018) and the Court of Justice of the European Union (Judgment of 16 July 2020, Case C-686/18), which upheld the reform against constitutional and EU-law challenges. Both courts endorsed a restrained and light-touch conception of proportionality, grounded in the primacy of financial stability as an overriding public interest and characterised by a high degree of judicial deference toward legislative and supervisory choices. In doing so, they accepted that structural interference with cooperative autonomy could be justified even in the absence of a concrete, institution-specific assessment of risk, provided that the measure pursued systemic objectives in a coherent and non-manifestly unreasonable manner. From a policy perspective, however, this jurisprudence also reveals the limits of proportionality review when it is absorbed into a predominantly system-oriented logic. The courts’ reasoning largely refrained from examining whether less intrusive alternatives—such as targeted supervisory interventions or differentiated governance adjustments—could have achieved comparable stability outcomes with a lower sacrifice of organisational diversity. Proportionality thus functioned more as a threshold test of plausibility than as a genuine tool of regulatory optimisation. Against this background, the new €16 billion threshold can be interpreted as a legislative acknowledgment of those unresolved tensions. It implicitly recognises that asset size alone is an imperfect proxy for systemic relevance or governance inefficiency, and that automatic structural remedies risk overshooting what is strictly necessary to safeguard stability. Read together with the recent reforms that have enabled popular banks to access capital markets while generally preserving control in the hands of cooperative members—unless a crisis situation is already in place, in which case control may be transferred to external investors providing recapitalisation (see Article 150-quater of the Italian Consolidated Banking Act, introduced by Decree-Law No. 73 of 2021)—the legislative amendment appears to point toward a more flexible and proportionate regulatory architecture, capable of pursuing supervisory objectives without relegating cooperative banking to a merely residual or transitory model. Whether this shift reflects a genuine move towards proportionality-driven supervision or merely facilitates further consolidation within the sector remains an open question, particularly in light of the potential impact of the forthcoming EU directive on the resolution of small and medium-sized banks and the associated need for institutions to achieve adequate MREL levels. Nonetheless, the reform suggests an emerging awareness that financial stability, if conceived as a sustainable policy objective, requires regulatory frameworks capable of accommodating institutional pluralism, rather than subordinating it to rigid, one-size-fits-all structural constraints. In this respect, a more recent judgment of the Italian Constitutional Court is also relevant. When reviewing sanctions imposed on cooperatives that evade supervisory oversight, the Court held that the principle of proportionality—rooted in Article 3 of the Constitution—and the constitutional recognition of cooperation as a distinctive form of economic activity, as reflected in Article 45 of the Constitution, do not allow for automatic and non-graduated sanctions (Judgment No. 116 of 2025). Even if the role of Article 45 of the Constitution as a constitutional ‘counter-limit’ remains debated, this reasoning implies that members’ right to engage in cooperative activity may be restricted only in the presence of a concrete and current financial-stability interest relating to the individual credit institution. Any broader approach would, in effect, risk sacrificing beyond acceptable limits the possibility of conducting banking activity in cooperative form.