CORPORATE:

Resignation of the director of a limited liability company and entitlement to amendment at the Companies Registry

There is no express regulation for limited liability companies concerning the resignation of director: according to some, the regulation provided for limited liability companies, which provides for the necessary notification to the board of directors and the chairman of the board of auditors, would be applicable in this context. According to a recent ruling, from the moment of communication of his resignation, the director loses the legitimacy to notify the Company Registry of every act of the company and the resignation in question. The director becomes a “stranger” to the company and can only take administrative action to “oblige the company” to register his resignation within a reasonable period (after which, the Judge of the Registry may order the immediate registration by decree). This last procedure qualifies as voluntary jurisdiction, but the recourse to litigation is not excluded (also for damages for late registration of the resignation, in favour of the resigning director).

Liability of the liquidator for unpaid corporate debts

As is well known, the liquidator’s task is to execute the liquidation proceedings, repay the creditors and settle any surplus among the shareholders. In his activity, the liquidator is required to act in good faith for the best allocation of the company’s resources, as just stated. A recent ruling of Court of legitimacy has clarified that, if certain facts ascertained during a litigation concerning the company placed in liquidation were to reveal the existence of a claim (never included in the liquidation accounts), the liquidator does not incur any liability in the absence of any liquidated and distributed assets. Although it is provided by law that upon the cancellation of the company unsatisfied corporate creditors may assert their claims against the liquidators, if the non-payment was due to the latter’s fault, this implies that the creditor must allege and prove the existence of assets capable of being recovered or used.

SME Ltd. quotas: categories of quotas with different rights as shares

The recent extension of European source legislation on SMEs has paved the way for solutions that were previously controversial, if not outright inadmissible. These include the express recognition that it is now possible to create limited liability quotas with different rights and modelled on the rules governing shares (subject, of course, to adaptations that can not be extended to the structure of the limited liability company): the only rule applicable to the limited liability company was that their participations may be endowed with particular rights (considered to be mostly linked to the person of the shareholder) with reference to administration and profits, without this leading to the creation of “categories of quotas”. With the spread of SMEs, on the other hand, it is also possible to create categories of quotas, as with categories of shares, which only have to respect the limitation of the Italian prohibition called “patto leonine” (i.e. categories of quotas that completely exclude a shareholder’s participation in profits or losses may not be created). It is necessary that the quotas belonging to the same category confer the same rights.

D. LGS 231/2001:

Model 231 results ineffective if not operational

According to a consolidated orientation on the subject, the mere appointment of a supervisory body and the mere adoption of the model is not sufficient, if the model is not made operational by the entity, for the purposes of the recognition of the mitigating circumstance provided for in respect of pecuniary sanctions. In the event of concrete implementation (if effective) of the model provided for by Law No. 231/2001, the entity may benefit from a reduction of the pecuniary penalty from one third to one half. Without the concrete implementation of the model, the mere adoption and appointment of the supervisory body would be useless for the purposes of the application of the favourable legislation provided for by the decree. Making the model operational means ensuring that specific procedures and operational practices, concretely suited to preventing the commission of an offence provided for in the catalogue, mapping all the risk zones connected to the specific activity carried out by the entity to identify the possible offences that might occur.

The “plea bargaining” of the entity in 231 liability and the order to pay court costs

In the event of the application of the pecuniary sanction upon request of the body (so-called “plea bargaining”), pursuant to Article 63 of Legislative Decree No. 231/2001, it does not entail the condemnation of the body itself to pay the court costs: this recent orientation is becoming increasingly widespread in case law, as confirmed by a recent ruling of the Supreme Court. The application to the body of the sanction on request is allowed if the judgment against the defendant is finalised or can be finalised in accordance with the conditions laid down in the Code of Criminal Procedure, as well as in all cases in which only the pecuniary sanction is provided for the administrative offence. The reference of Legislative Decree No. 231/2001 to the Code of Criminal Procedure confirms that the liability provided by the former is formally administrative and substantially criminal.

According to the jurisprudence cited at the beginning, the entity can access the “plea bargaining” in three hypotheses: if the trial against the natural person who acted on its behalf is also concluded in this way; if such trial is normatively susceptible of being settled according to that rite, but there is no agreement between the parties or, for any other reason, this settlement does not take place; if, irrespective of the choice of procedure made by the defendant as a natural person and the outcome of the proceedings against him, with regard to the extent of the penalty agreed upon by him, the administrative offence ascribed to the entity itself is punishable with only a fine and not with one of the disqualification penalties referred to in Article 9 of Legislative Decree No. 231/2001.

LDP remains at your disposal for any further information or in-depth study of the topics discussed above.