Anno XXXVII - Numero 2 - 28 febbraio 2014

Controllante estera e responsabilità degli amministratori della controllata italiana
A cura di Mauro Ranalli - Studio GMR e Associati
Ordine dei Dottori Commercialisti e degli Esperti Contabili di Ivrea, Pinerolo, Torino

Nei gruppi di società non è sufficiente che la condotta degli amministratori si conformi alla fedeltà all’interesse della società, ma è necessario applicare frequentemente le norme sul conflitto d’interessi e sull’etero-direzione societaria.

L’attività di direzione e coordinamento della capogruppo può assumere forma orale o scritta (colloquio, mail, fax, verbale del consiglio di amministrazione …), consistendo nell’espressione di volontà in ordine ad atti gestori che dovranno essere compiuti dagli amministratori della società controllata e poi di conseguenza imputati a quest’ultima (Trib. Milano, 20 dicembre 2013). Portare a conoscenza degli esponenti apicali della capogruppo estera il framework legale italiano può contribuire a prevenire fraintendimenti. Se ne rassegna, pertanto, una sintesi in inglese.

1. Article 2392 of the Italian Civil Code provides that directors must fulfill their duties under the law and the company’s bylaws with the diligence required by the nature of their office and by their specific professional expertise, in compliance with specific rules which include – above any other requirement - the duty to act in loyalty to the company’s interest.
2. Within certain limits a Parent Company is entitled to impose on its Subsidiary binding directives (article 2497, Civil Code). Non compliance with these limits implies that the Parent Company shall be liable in the event it would not have applied principles of correct corporate and entrepreneurial management (art. 2497, Civil Code). Besides, in event the Subsidiary goes bankrupt, directors of its Parent Company shall be jointly and severally liable for any abuse of coordination and direction powers (article 90, Decree n. 270/1999).
3. Within their duties of complying with the law, Subsidiary’ directors must fulfill a specific disclosure obligation about the interests pursued by the Parent Company through its directives. Such disclosure must involve - on the basis of an adequate information, which is at charge of Parent Company - the interest of the Group and eventual material benefits, even indirect, of third parties not belonging to the Group.
4. Case laws point out that  Subsidiary’s directors shall be liable for not having denied their approval to a decision taken under the influence of its Parent Company, when the decision is not justified by a proper economical  convenience of the Subsidiary to enter the transactions or follow the plans imposed by its Parent Company.  
5. Proper economical convenience may take into account the benefit resulting from the participation to a group of companies. For instance, there is no criminal liability if the prejudice suffered by a Subsidiary is offset by other benefits, whether already obtained or reasonably obtainable, that are the result of the company’s participation to the Group. Besides, there is no (civil) liability to pay a compensation where the damage vanishes as a consequence of the total result of the direction and coordination activity, or when the damage has been totally eliminated, on purpose, through other transactions (with Parent Company or other companies of the Group).
6. Case laws have clarified that the benefit which accrues to a Subsidiary as the result of its participation to the Group must have sound basis and be supported by reasonable elements. Potential but unspecified benefits are unpersuasive and the Court will not take them in account. The proof of such benefits is at charge of directors, when called in justice for a penal prosecution or for indemnifying persons and entities who suffered the damage.
7. Subsidiary’s directors may refer to the abovementioned benefits only where they have been duly ensured by Parent Company, through adequate documentation, that the decision to be taken under its influence is justified by the interest of the Group. As a consequence, when a material interest of third parties not belonging to be Group is involved, the strict interpretation of articles 2391 and 2497 ter, Civil Code, requires Subsidiary’s directors to evaluate the convenience of the proposed transaction only on the basis of  article 2391, where there is no possibility to take into account the benefits accruing to the company through its participation to the Group.
8. Specific requirements involve, inter alia, the following items.
   a)  Information background needed to carry out a discussion effectively complying with articles 2391 and 2497 ter, Civil Code: a detailed documentation set is required to comply with the rules governing transactions between related parties and decisions to be taken under the influence of a Parent Company. The main contents of such documentation are at charge of Parent Company because the local directors do not hold the power to ascertain the entrepreneurial interest of the Group. Besides, each director must disclose any interest he has, personally or in behalf of third parties, in the specific transaction.
   b)    Adequate procedure in disclosing reasons and interests involved: each director must verify the correctness and economical plausibility of information he received from Parent Company and from other directors.
   c) Assessment of a proper economical convenience from the Subsidiary’s perspective: the assessment must be based on the difference between the price imposed by Parent Company and the market price in comparable uncontrolled transactions. Whereas disadvantages must be offset by the concrete value of benefits that the Subsidiary accrues through its participation to the Group, the value of these benefits must be objective (it must result from a consistent formula and persuasive data). Besides, as the aforesaid befits may vary year by year, Subsidiary’s directors shall verify their value each year, and must ask to  Parent Company a link with the effective value of benefits definitely accrued.
   d) Proof of reasonable evidence about concrete and specific benefits arising - on sound basis - from the participation to the Group: if their offset is required to compensate prejudices coming from a decision to be taken under the influence of a Parent Company, a specific settlement may be signed to agree on a safe-guard clause. For instance, the safe-guard clause may link the prices imposed by a Parent Company to every material variation of the benefits the Subsidiary accrues as the result of its participation to the Group. This settlement complies with good faith rules where it has been clearly agreed how such variations shall be assessed and monitored.

Per approfondire/Read also:
Codice Civile (Libro V - Titolo V e Titolo XI) - Italian Civil Code (Book V - Title V and Title XI)
 

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