NEWSLETTER LEGAL MAY 2022

da Pietro Acerbi | Mag 12, 2022 | newsletter

NEW

 

SACE and MCC guarantee – Financing for energy sector  

The provisions of Decree Law No. 17/2022, which provides rules to support liquidity needs resulting from “high utility bills” vis-à-vis energy-intensive companies as well as the upstream supply chain, have become law. Financing requested by companies to cope with the current energy emergency can be assisted by state guarantees through the instruments Guarantee Italy and Guarantee Fund for SMEs under the same facilitating conditions provided by schemes operating under temporary framework (temporary framework for state aid measures adopted by the European Commission). Sace’s extraordinary guarantee – initially provided for in Articles 1 and 1bis of Decree Law Liquidity 23/2020 – is extended to businesses for proven liquidity needs resulting from increases in energy prices. The measures under this law measure are operational until June 30, 2022. The intervention of the Guarantee Fund – which will be free of charge for this kind of financial need – is limited in the maximum amount of 5 million euros and is possible for all enterprises with a number of employees (for the year 2019) that does not exceeds 499.  

For mid and large enterprises, on the other hand, the operation of Sace applies, pursuant to Articles 1 and 1-bis of Decree 23/2020.  

In both cases, the guarantee operates for loans of up to 96 months, with pre-amortization of up to 24 (30 in some cases) for Fund guarantees, and up to 36 months for Sace guarantees. The Fund’s operations provide coverage directly up to 80 percent of the amount disbursed, and indirectly (as a guarantor’s counter-guarantee) up to 100 percent of the amount, with a limit of 90 percent to the guarantee of the confidi; outside these cases, coverage is 80 percent for the direct guarantee and 90 percent for the co-guarantee. The Sace guarantee, on the other hand, provides decreasing percentages of 90, 80 and 70 percent, as the size of the company applying for financing increases.  

 

LIABILITY UNDER LEGISLATIVE DECREE 231/2001:    

Update 231/2001: new Art. 25-octies  

Following the entry into force (14.12.2021) of Legislative Decree 184/2021, implementing Directive (EU) 2019/713 on combating fraud and counterfeiting of non-cash means of payment, a new article (Art. 25-octies) has been introduced into Legislative Decree 231/2001, entitled “Crimes relating to non-cash means of payment,” which extends the catalog of predicate offenses with inclusion also of the cases referred to in:  

  • Art. 493-ter of the Criminal Code, now headed “Undue use and counterfeiting of non-cash payment instruments,” in the wording amended by the Implementing Decree itself, which extends the scope of the unlawful conduct to include intangible payment instruments;  
  • Articles 493-quater c.p. (“Possession and dissemination of computer equipment, devices or programs aimed at committing offenses regarding non-cash payment instruments”)  
  • Article 640-ter of the Criminal Code (headed “Computer Fraud”), through the provision of an additional aggravating circumstance if the illegal act produces a transfer of money, monetary value or virtual currency.  

 

 ANTI-MONEY LAUNDERING

    

New rules on combating money laundering through criminal offenses  

New measures on combating money laundering through criminal offenses were introduced through the implementation of EU Directive 2018/1673, based on Legislative Decree No. 195/2021. This legislative innovation made changes to the crimes of receiving stolen goods (Article 648 of the Criminal Code), money laundering (Article 648-bis of the Criminal Code), use of money, goods or utilities of unlawful origin (Article 648-ter of the Criminal Code) and self-money laundering (Article 648-ter of the Criminal Code).  

Legislative Decree No. 195/2001, in particular, extended the possibility of the configuration of the crimes of money laundering and self-laundering (Articles 648-bis of the Criminal Code and 648-ter of the Criminal Code, respectively) also to cases in which the money (or the object of receiving) comes from a culpable crime, as well as providing for the configurability of the crimes of receiving, laundering, use of money, goods or utilities of illicit origin and self-laundering (Articles 648, 648-bis, 648-ter of the Criminal Code) also to cases in which the money (or the object of receiving) comes from a contravention, provided that it is punishable by arrest exceeding a maximum of one year or a minimum of six months. Specific aggravating and mitigating circumstances have also been provided for. 

 

CORPORATE

 

More on videoconference meetings: recent guidelines from the Milan Notary Council  

The Milan Notary Council has expressed itself on the issue of video-conference meetings, stating that if the bylaws of corporations (and cooperatives) provide for the holding of meetings by this mode, the latter may even be considered by the convening directors, in the notice of meeting, as the only permitted mode. As already pointed out in the previous circular, until 31.07.2022, the current legislation (unless extended or updated) provides for the possibility – in any case – of holding meetings by videoconference, even where there is no provision for this mode in the bylaws: however, it is advisable, for the purpose of keeping this mode always available to the directors (with reference to the holding of meetings, also for the purpose of greater speed and convenience for shareholders) to update the bylaws where there is no provision for the videoconference mode. Similar conclusions can be extended to meetings of the board of directors.  

 

Liability action by the individual shareholder of limited liability companies against directors   

Liability action against the directors of italian limited liability companies (or, in italian,società a responsabilità limitata”, hereinafter “s.r.l.”) – for acts of mala gestio, in general, performed by them – may also be brought individually by the s.r.l. shareholder. In this case, however, the prerequisite for the individual action must be direct damage to the shareholder’s assets and not only so-called “reflected” damage to the assets of the company: this orientation is now to be considered established in case law. Basically, if the assets of the company are depleted as a result of malicious or negligent acts carried out by the directors, and therefore the value of each shareholder’s share is reduced as a result of this depletion, individual action is not possible because it is merely a “reflected” damage to the shareholder’s assets; in such cases, only corporate liability action will be possible in the forms and within the limits provided by the Civil Code. It is therefore necessary to carefully consider the type of liability action for the purpose of its fruitful exercise in court.  

 

Directors are not liable for damages to the company if they acted prudently (business judgment rule)  

In the area of directors’ liability action, directors are not liable for damages to the corporation that have occurred even though their conduct was prudent and careful in their management choices. Entrepreneurial risk is inherent in the management choices of directors, and where they have acted with prudence and careful assessment of risks, they cannot be held liable (either for malice or negligence, precisely) for any “failures” of the company. As jurisprudence has consistently affirmed, in fact, the director of a company cannot be charged by way of responsibility with having made inappropriate choices from an economic point of view: the judgment on the diligence of the director can only concern the diligence shown in appreciating in advance the margins of risk associated with the operation to be undertaken and, therefore, the possible omission of those cautions, verifications and information normally required for a choice of that type, made under certain circumstances. Therefore, management choices, where made in an informed and judicious manner by directors, are unquestionable (business judgment rule); and conversely, directors are liable for losses resulting from business failure only if management decisions were not made diligently, that is, with all the necessary precautions, checks and prior information.  

 

 LDP remains at your disposal for any needed clarification!

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