L’autore tratta della crisi dei gruppi aziendali sia per quanto riguarda il panorama europeo sia per quanto concerne il c.d. “modello” italiano. Invero, la recente introduzione nell’ordi­namento italiano di disposizioni in materia di insolvenza dei gruppi societari (contenute nel nuovo Codice della crisi di Impresa) sottolinea l’importanza di analizzare il tema dei gruppi societari, sia a livello nazionale che europeo. Per questo motivo, l’autore procede dalla disamina della disciplina giuridica dei gruppi – sia a livello nazionale sia europeo – per proseguire con l’approfondimento del “modello” italiano. A tal fine, l’autrice focalizza la propria attenzione in particolare sull’analisi della configurazione di “gruppo” e sugli obblighi di trasparenza e informativa all’interno dei gruppi aziendali. L'autore conclude il suo saggio con l’analisi dell’abuso della gestione unificata.

SOMMARIO:

1. Crisis of corporate groups: the European panorama and the Italian "model" - 2. An overview of legal discipline of corporate groups, at a national and EU level - 3. The "Italian Model" between a general legal discipline of corporate groups and special regulation for crises - 3.1. On the configuration of the "group" - 3.2. On transparency and disclosure obligations within corporate groups - 3.3. On group interest and "compensational advantage theory" - 3.4. Abuse of unified management - 4. Final Considerations - NOTE

1. Crisis of corporate groups: the European panorama and the Italian "model"

The recent introduction in the Italian legal system of provisions regarding the insolvency of corporate groups (contained in the “Crisis Code” [1], which will fully come into force on15th August 2020), suggests that a new look should be taken on the topic of corporate groups, both at a national and European level. At a European level, as well known, the crisis of corporate groups is disciplined by Regulation 848/2015, applicable in Italy since 2017, which disciplines cross-border bankruptcy procedures. From this Regulation we can deduct a concept of corporate group that is not identical to the one which can be extracted from the varied Italian legal dispositions: in fact it defines a corporate group referring to the holding company as the “parent corporation” and to the subsidiary companies, that are directly or indirectly controlled, as “daughter companies” (i.e. subsidiaries). To put it simply, the European notion of corporate group is based on a hierarchical model and is based solely on the activity of direction and coordination by the “parent company” with regards to the subsidiary corporations, apparently excluding all those forms of aggregation based on a lesser degree of control or a merely “factual connection” [2]. The criterion with which to pinpoint the holding company is the drafting of a consolidated financial statement, compliant with EU principles [3]. The legal discipline was introduced with the objective of filling any loop-holes inside EU Regulation n. 1346/00, that was in force for over a decade and did not provide a specific discipline for cross-border bankruptcy of corporate groups; the new discipline has the merit “of allowing member States to acquire the regulatory discipline, under the procedural and formal point of view, even with some critical points, stemming especially from the nebulous definition section and gaps in the discipline of corporate groups” [4]. At a national level, the legal discipline of the “extraordinary administration” of corporate groups (articles 80 et al. of Leg. Dec. 270/1999 – extended to banks and insurances by articles 98 and 105 by the Italian Banking Consolidated Act that contains measures for industrial reconstruction and the management of large businesses in a state of insolvency (the so called, special procedure for immediate admission) was introduced by legislative [continua ..]

2. An overview of legal discipline of corporate groups, at a national and EU level

A corporate group, that can assume many different forms and interests, many different business realities with different dimensions, can be placed within the area of connections and cooperation amongst enterprises, articulated in different ways according to the different economic and legal contexts in which they work. However, the group distinguishes itself in such a context because of its compactness. In such a context, interests are multiplied, the concept of “monad company” cannot be considered universal and belonging to a specific group is considered ever more a normal condition of economic reality. At a European level, studies to harmonize legislations of member States in the sector of corporate groups go back to the 1960s. After a first draft Directive on groups of 1975, which attracted much criticism because it was too restrictive and unfavourable to the discipline of “strategies”, the Ninth Directive was introduced in December 1984. This was inspired by theories on group directives and the admissibility of an influence on subsidiary companies inspired by group interest, and the possibility to legitimise a compensational logic, also with the recognition of group regulations and agreements [10]. This was inspired by German legislation, which was again object of discussions (initially quite wide and then progressively diluted even if periodically they resurfaced) and to this day it has never been translated into a Proposal for the EU Commission. Originally, as stated in the 1985 White Book of the Commission, the drafting of a uniform legal discipline for corporate groups had assumed a preeminent position within the framework of EU policies, both with the prospect of economic and political integration and with the objective of filling gaps present in the legislation of several member states [11]. Also, the 1984 project (with no successive drafts), even if inspired by a more modern conception of the phenomenon, had certain evident loopholes, that were an obstacle to its common adoption. The Project was created to “manage corporate groups that had a public limited company as a subsidiary entity” [12], with an unexplainable and inadequate limit for the evolution of economic reality. More in general, it seemed impermeable to diversification stemming from the different nature and hetero-direction of groups, where the variety of types has always depended both on the number of corporations and the [continua ..]

3. The "Italian Model" between a general legal discipline of corporate groups and special regulation for crises

3.1. On the configuration of the "group"

As mentioned above, at a European level the multitude of definitions of what a corporate group is and the absence of coherence are a starting problem, as a matter of fact, common to many legal systems: “there may indeed be differences only if different aims are pursued, but differences in definition really have to be justified by differences of scope/interests; otherwise, the definition should be uniform” [27]. In disdain of its increasing economic importance, also the Italian Legislator has always avoided giving a legal definition of what a corporate group is, to tell us if and when one can be considered existent, showing itself not very forward-thinking in taking into consideration this phenomenon and its implications. The Italian Civil Code of 1942 in fact ignored it, being worried exclusively about the legal regulation of pathological aspects of corporate control by single shareholder, that is the aspect that normally is considered the thread from which a corporate group comes to being and is an indicator of its existence. The fact stems from the purchase of stock of the subsidiary by the holding company. Even in subsequent decades, the delicate issues brought forth by the topic of corporate control, groups and unitary management were only dealt with occasionally and with specific sectorial requests, also in the new “Crisis Code”: but indeed all these legal provisions have sparingly – and in certain instances only at a very embryonic level – dedicated themselves to the topic [28]. After the reform of company law in 2003, the introduction of articles from 2497 to 2497-septies of the Civil Code was seen as the general recognition of the corporate group phenomenon, that has slowly made its way through the Italian legal system, both at the level of court decisions and statutory law (even if only in specific sectors). These statutory instruments regulate, even if not organically, the main topics connected to the phenomenon: advertising transparency, information commitments, corporate or holding liability, protection of minority shareholders and creditors, means of financing the corporation, right of withdrawal by an external shareholder. From another perspective, we must highlight that in the Italian system we can find many rules in different sources, regarding specific sectors of the group phenomenon, without ever offering a unitary definition, and now a significant doctrinal effort has been made to [continua ..]

3.2. On transparency and disclosure obligations within corporate groups

Among the most important innovations introduced by the recent CCII regarding corporate groups (connected to the general principles of art. 2497 Civ. Cod.) are the information duties imposed on a corporation that is part of a group, whose fulfilment are prerequisite to enter a procedure for the regulation of a situation of crisis and insolvency; non-compliance to these duties means inadmissibility of the plea filed before a court. Art. 289 CCII establishes that “the plea filed in order to access a procedure to regulate a crisis of a situation of insolvency, presented by a corporation belonging to a group, must contain analytical information on the group’s structure and the participation or contractual restrictions existing among the companies and specify the company registration list or lists in which information duties have been carried out under art. 2497-bis Civ. Cod. The corporation must also deposit the group financial statement, where it has been compiled”. The statutory provision is strictly connected to the power, given to the directive body of the procedure (both in the foreclosure agreement and in the judicial liquidation procedure), to obtain information from offices of distinct and parallel foreclosure procedures pertaining to corporations of the same group (art. 288 CCII), in a spirit of cooperation whose objective is an efficient handling of the crisis. It must be noted that similar forms of cooperation are already existent in the area of insolvency management in cross-border situations, via the stipulation of protocols between insolvency procedures (EU Regulation n. 848/2015). In this sense also that last part of art. 289 CCII can be explained, according to which “the court or the insolvency administrator or the judicial commissioner may, in order to ascertain the existence of group connections, request the Italian Commission for Companies and the Stock Exchange [i.e. the Italian equivalent to the American SEC] or any other Public Authority and trust companies, information on shareholders and stock assigned to them”, in order to ensure a flow of information that is useful to reconstruct connections within a group. Replies to such requests must be received within fifteen days from the request. Finally, more transparency on the structure and the organization of the corporate group is indispensable to the insolvency administrator in order for him to exercise the powers invested in him by art. 290 and 291 [continua ..]

3.3. On group interest and "compensational advantage theory"

The debate on group interest is very complex and articulated – and also a source of delays in the evolution of the proposed directive for harmonization of legislation in this sector. At EU level two different models have clashed: the German model and the French model, the latter closer to Italian legislation which is, in its own, an interesting evolution. In the German model the possible disadvantages suffered by a subsidiary are only legitimized if the losses are compensated at the end of the financial year in which a specific operation was conducted; otherwise such a management decision is invalid, with the duty to pay damages. The German model was adopted in the 1984 Proposal and translates into a very rigid “case by case” approach, which aims to prevent any harm to subsidiary corporations that cannot be met by some form of compensation. The codification of the “business judgement rule” is centred on the company’s interest, impoverishing the group’s interest and with the consequence that executive offers of the subsidiary corporation cannot rely on this rule to mitigate their liability [50]. Opposed to this there is a solution proposed by the French courts during the 1980s, inspired by the “Rozenblum doctrine” [51], which aims to expand the admissibility of group strategy even at a detriment to the subsidiary, attributing relevance to the following four elements, deemed conditions  of admissibility of directional acts of a group: a solid group structure, a coherent group strategy in which every single management act is rooted; the fact that a subsidiary company that is damaged does not systematically incur in disadvantages from group strategy and finally it is not a company in decline [52]. It must also be said, however, that the enthusiasm that surfaced during the drafting sessions for this second approach has received severe criticism, because of the belief that such an option would have opened the door “for unforeseeable inroads into the means of subsidiaries” [53]. Even in respect to these two approaches, that continue to convince scholars, the solution adopted in the Italian system is extremely competitive, connecting itself to the Rozenblum doctrine and showing particular attention towards the balancing of group interest and subsidiary interest. The Italian legal system has developed the theory of “compensational advantages” [54], [continua ..]

3.4. Abuse of unified management

Starting from the legal defence of group interest, the legal rules lay down by the Code on the abuse of a directional position, filtered through the lens of compensational advantages, assume a new meaning within insolvency procedures and when looking at the special powers invested in the insolvency administrator. In fact, according to article 291 CCII, this administrator – both in case of insolvency as a single procedure for the entire group, or a multitude of single insolvency procedures – may legally initiate law suits against the executive officers, on the basis of art. 2497 Civ. Cod. And he may also file the special complaint (art. 2409 Civ. Co.) against executives and auditors of corporations belonging to the group and which are not part of any insolvency procedure. Considering also that the CCII contemplates a physical person as the holding entity, we can assume that the filing of a law suit for special liability (art. 2497 Civ. Co.) is also possible. As known, art. 2497, co 1 of the Italian Civil Code states that corporations or entities, that are engaged in activities of direction and coordination of other companies, if acting in their own business interest or in others’ in violation of the principles of correct company and business management of the subsidiaries, are directly responsible towards the shareholders of the subsidiaries in case of damages to the profitability and economic value of their shares [56]. They are also responsible towards company creditors for damages to the net worth of the company and their expectation of payment [57]. It is evident that executives are liable, when they have the sole and unique direction of a group, only when the holding corporation acts “in its own interest or in another’s interest in violation of principles of correct company and business management of subsidiary companies”. This means that the source of liability is not the unilateral direction, but only an “abuse” of it: this elucidation is particularly evident in the final part of paragraph 1, art. 2497, in which we find a limit to this liability. The rule states that “there is no liability when the damage is missing in the light of the total result of the activity of direction and coordination” (so called “liability for missing compensation”); or “(when the damage) results completely eliminated, even subsequently to operation which are designed to [continua ..]

4. Final Considerations

The novelties introduced by the CCII are an important addition to the “trans-typical” nature of corporate groups that has emerged and whose legal evolution has been described, incrementing its importance in an important sector such as the one of insolvency. In the present work, we have tried to briefly examine the main characteristics in relation to the overall legal regulation of corporate groups, so in conclusion it is appropriate to highlight certain aspects. First of all, the legal innovation is a demonstration of the importance of company structure within groups. Whatever the structure may be, the subjugation to another company’s directional power entails the relocation of decisional power outside of the subsidiary’s structure, with a substantial redefinition of the organizational shape of the subsidiaries (with identification of formalities and functions of company bodies as a whole) and their interior decisional processes, susceptible to engender “virtuous synergies” or, in other cases, “inefficient overlapping and duplications” [73]. From the point of view of organizational layouts, the power of direction and coordination has, as a consequence, a more or less severe restriction of managing autonomy of the subsidiary company and so, a re-modelling of the company’s interest that is specifically pursued by the latter, also in view of applying art. 2391 of the Italian Civil Code and the possible alteration of tasks (and liability) of the inner bodies [74]. This is particularly evident in situations of insolvency and the Legislator is aware of this fact, both in the moment when it explicitly gives value to synergies within the group in the construction of plans to solve an economic crisis, and also when the Legislator indicates that group logic and interest are an element for evaluating the legitimacy of corporate acts that are potentially damaging to creditors and corporations belonging to the group.   From another point of view, this is a confirmation of the relevance that activities of direction and coordination have assumed (also when the holding corporation is actually a physical person) as a linchpin for the application of the statutory legislation regarding corporate groups, along with the recognition of the role assumed by private legal autonomy, which is given ample space in the new legal discipline. In this sense it connects itself to the importance of group [continua ..]

NOTE