NEWSLETTER LEGAL N. 1 JULY 2021

by LDP | Jul 14, 2021 | newsletter

NEWS:

 

Measures to support the liquidity of enterprises, the “SACE Guarantee”

 

Law-Decree n. 73/2021, the so called “Sostegni-bis” Decree, by intervening both on the guarantee provided by the SME Fund and on the Italian Guarantee provided by SACE (Article 13), ordered:

  • the extension, until 31 December 2021, of the deadline for requesting the SACE Guarantee;
  • the possibility of extending, from 6 to 8 years, the repayment terms of the guaranteed loans (it should be noted that it was initially proposed to increase the maximum duration to 10 years, however, on 29 June 2021, the European Commission – by authorising the measure – limited the duration to 8 years);
  • the reduction from 30% to 15% of the obligation to maintain, if the rating class assigned to the loan is lower than BBB-, a portion of the value of the issue for the entire duration of the SACE Guarantee;
  • the lowering, as from 1 July, to 90% of the coverage for loans of less than EUR 30,000.00, previously guaranteed at 100%, for the guarantee granted by the SME Fund, as well as the reinstatement of 80% as the maximum guarantee percentage in all other cases, with a view to gradually returning to the operating procedures of the SME Fund prior to the health emergency;
  • the possibility, also for non-commercial bodies and the Third Sector, whose access had been excluded at the time of the first renewal of the measure, to access to the Italian Guarantee for loans of less than EUR 30,000.00.

Lastly, it was decided that Small Mid Caps would no longer have access to the guarantees provided by the SME Guarantee Fund, but could only apply for the SACE Guarantee. However, it was decided to make the two instruments equivalent for this type of enterprise, so that only for Small Mid Caps the prohibition on the distribution of dividends and the repurchase of own shares as a condition for the issue of the SACE Guarantee was removed.

 

Delegation of power to the Government to amend the legislation on “Whistleblowing”

 

On 19 April, the Senate approved the 2019/2020 European Delegation Act, under which, inter alia, Parliament set out the principles and guidelines to be followed by the Government in implementing Directive (EU) 2019/1937 on “Whistleblowing”. In this regard, it should be noted that the scope is broader than that provided for in Legislative Decree no. 231/2001, since the directive concerns the protection of persons who report violations of EU law, including, by way of example, violations relating to competition and State aid. In particular, the Delegation Act provides that the implementation of the Directive shall ensure a high degree of protection, not only for whistle-blowers, but also for their facilitators and related third parties who might risk retaliation in a work context, as well as for the legal entities for which the whistle-blowers work or to which they are otherwise connected in a work context.

 

 

CORPORATE:

 

Revocable waiver of option right on shares in LLCs

 

In a recent judgment, the Court of Rome has specified that in LLCs the revocation of the waiver of the option right is allowed when the option constitutes an asset in itself, having an independent market value. In this regard, the Court first of all pointed out that one of the prerequisites for a revocation action (whether ordinary or bankruptcy) is the so-called eventus damni, since the revoking act must have caused or aggravated the danger of the debtor’s incapacity. This characteristic, however, cannot be taken for granted in the case of LLCs; in this context, in fact, unlike the case of joint stock companies – where, in the light of the provisions of Article 2441 of the Civil Code, the option right would have an undoubted economic value in itself – there is a tendency towards a personalistic approach. Therefore, the option right does not automatically have an autonomous asset value and in fact may not even have any, since such value ends up being closely related to the rules of the articles of association relating to the circulation of the shares, which may be prohibited or subject to more or less stringent restrictions affecting the transferability of the option right to shareholders and third parties. The burden of proving this economic value falls on the creditor bringing the action in revocation. Therefore, having regard to the existence of a concrete eventus damni justifying the procedural initiative taken, the quantitative and qualitative relevance of the act of disposition must be proven by the acting creditor; while it is the debtor’s burden, in order to escape the effects of the revocation action, to prove that its residual assets are such as to satisfy the creditor’s reasons.

 

 

Managerial and ‘external’ duties of company directors

 

It is well known – as confirmed by several precedents in case law – that, if a company director is called upon to perform activities extraneous and additional to the strictly managerial and administrative ones, he is entitled to a special remuneration, in addition to the remuneration paid for the office he holds. However, this demarcation line is easy only in theory, since in practice it is not at all easy to draw the boundaries of the activity properly “managing”. In this respect, according to a part of the jurisprudence it should be a matter of activities actually different from those due by virtue of the management task, assessed in the light of the corporate purpose. In other words, an additional remuneration would be due only if the director’s performance, having regard to the object of the company, does not fall within the tasks “institutionally connected with his office”. This reconstruction does not appear to be fully supportable, because it is potentially capable of qualifying as management activities even operations which are totally extraneous (in fact, everything could be said to be functional to the pursuit of the corporate purpose). According to another part of the jurisprudence, only activities that are episodic and occasional in nature would be “extraneous” to management, whereas activities that are regular and continuous in nature with respect to the pursuit of the corporate purpose would be inherent to management. This distinction appears questionable, given that there are acts which, although episodic in nature, are certainly attributable to the management activity (e.g. a merger project) and other acts which, although continuous in nature, have nothing to do with the specific competences of the Board of Directors (e.g. a director who is a lawyer and deals with the collection of debts of the company). Similarly, it is also highly questionable to refer to the specific professional and personal qualities of the individual as a reason for appointment as director, as inferred from other rulings. In short, great uncertainty reigns as to this distinction and, case by case, the decision will be left to the interpretation of the judge.

 

 

Abstention to be calibrated for the director

 

Pursuant to Article 2388, paragraph 4, of the Italian Civil Code, board resolutions that are not taken in accordance with the law or the by-laws may be challenged only by the board of statutory auditors and by “absent or dissenting” directors within ninety days of the date of the resolution. Pursuant to Article 2377, paragraph 2, of the Italian Civil Code, on the other hand, resolutions of the shareholders’ meeting that are not taken in accordance with the law or the by-laws may be challenged by absent, dissenting or “abstaining” shareholders, the directors, the supervisory board and the board of statutory auditors. According to illustrious precedents of the Court of Milan, therefore, a director who abstains from voting has no standing to challenge the resolution adopted by the board of directors. However, in the case examined by the recent judgment of the Court of Turin, the basis of the challenge, by the director who “abstained”, did not consist in the generic contrary to law or the by-laws of the resolution of the Board of Directors, but in the violation of Article 2391 of the Italian Civil Code, on the subject of directors’ interests. According to this provision of the code, a director must inform the other directors and the board of auditors of any interest he or she may have, on his or her own behalf or on behalf of third parties, in a given company transaction, specifying the nature, terms, origin and scope of that interest. In cases of non-compliance with the above, or in case of resolutions of the board or of the executive committee adopted with the casting vote of the director concerned, such resolutions, if they are likely to cause damage to the company, may be challenged by the directors and the board of auditors within ninety days of their date; however, the challenge may not be brought by those who have “consented with their vote” to the resolution, provided that the prescribed information obligations have been fulfilled. In practice, it should be noted that neither absent, dissenting nor abstaining directors “consent” to the resolution, so that, irrespective of the fulfilment of the information obligation by the director concerned, they are entitled to appeal. Moreover, if the director concerned does not adequately fulfil his duty to provide information, the right to appeal also includes the directors who ‘consented’ to the resolution ‘with their vote’.

 

 

LIABILITY UNDER LEGISLATIVE DECREE 231/2001:

 

The liability of the entity remains even in case of a concurrent interest only

 

Article 5 of Legislative Decree n. 231/2001 provides that a company is liable when the offence has been committed in its interest or to its advantage, specifying however that liability ceases where the offence has been committed in the exclusive interest of the natural person acting as agent or of third parties, i.e. for a purpose that does not benefit the company in any way. On the basis of these principles, the Italian Supreme Court, in a recent ruling of last June, recognised the exclusive liability of a company for fraud against the State aimed at obtaining a substantial loan in the absence of the required conditions (pursuant to Article 24 of Legislative Decree 231/2001). According to the opinion of the Italian Supreme Court, this offence was committed in the interest of the legal entity, which used these illegally received financial resources to carry out its activities; however, a different conclusion would have emerged if it had been shown that the unlawful financing had been immediately diverted for the exclusive benefit of the shareholders. In fact, it was precisely by using the profit from the fraud that the industrial plant in which the company operated had been built, and it was only thanks to the obtaining of that financing that the company started its business. The Supreme Court points out that, in any case, the concurrent personal interest of the shareholders is not decisive; in fact, the entity’s liability for the offence remains if the legal entity had an interest, even if only concurrent with that of the agent, in the commission of the offence.

 

 

Assessment of the 231 Model including the competences of the members of the Supervisory Board

 

An interesting judgment of the Court of Viterbo offers important reflections on the figure and role of the Supervisory Board. Firstly, it should be noted that the judge bases his assessment of the Organisational Model adopted also on the role and capabilities of the members of the Supervisory Board. In this regard, the assessment of the work of the Supervisory Board is not carried out in the abstract and in general, but by consulting the documentation (minutes of meetings, annual reports to the Board of Directors, etc.); it is therefore important for the members of this body to adequately document their activities. Secondly, the Court has verified, with a positive outcome, the existence of adequate information flows between the Supervisory Board and corporate figures. Moreover, it is noted that such information flows must be – in addition to being periodical – also concerning the specific risk factors that may involve the company. Finally, the judgment recognises the adequate and absolute importance of the availability to the Supervisory Board of a sufficient budget for the performance of its duties, in particular for the performance of “unannounced” checks and inspections, i.e. the performance of checks whose management is entirely and solely entrusted to the Supervisory Board, which, consequently, also in order to ensure their secrecy, must bear the costs, without having to turn to the company’s own structures.

 

 

Liability of the entity: occupational accident and “advantage” requirement

 

The Supreme Court, in a judgment of last June, clarified the criteria for ascertaining the existence of the requirement of the interest and/or advantage of the entity in case of occurrence of culpable crimes in violation of the accident prevention regulations. In this regard, the judges specify that the entity is not liable for the accident suffered by the worker if the violation of the accident prevention rules is the result of an underestimation of the risk, but which does not correspond to the intention to save costs, maximising profits. In particular, as regards the assessment of the existence of the requirement of interest, it occurs when the natural person, although not wishing the occurrence of the event of death or injury of the worker, makes a choice oriented to save costs. Conversely, the requirement of the assessment of the existence of the advantage occurs when the natural person, acting on behalf of the entity, has systematically violated the rules on prevention, and, therefore, carried out a business policy disregarding the matter of safety at work, in order to obtain a significant containment of expenditure with a corresponding maximisation of profit or production.

 

 

TAXATION:

 

Shareholders’ loan, the statement does not put the tax authorities in time

 

In a recent order, the Italian Supreme Court – in the specific case of a shareholders’ loan agreement set out in the context of a deed of demerger – ruled that the taxation of the statement cannot take place after the lapse of five years from the date on which the stated deed should have been registered in a fixed term or, in the case of the statement of a deed to be registered only in the “case of use”, from the date on which the case of use occurred. The Court develops its reasoning by observing that Article 76 of Presidential Decree n. 131/1986 establishes the forfeiture of the administrator’s power to claim payment of registration tax with the expiry of the fifth year following: (i) for unregistered deeds, the date by which registration should have been effected; (ii) for deeds subject to registration in case of use, the date on which the deposit giving rise to the case of use took place. From this premise it follows that, since the shareholders’ loan is a contract to be registered within a fixed term, then the administration cannot claim taxation by declaration after five years from the date by which the shareholders’ loan should have been registered. In other words, the statement of an unregistered contract does not “put the administration on notice”, nor does the statement qualify as a “case of use”.

 

 

Errors in declaration always deductible in litigation

 

The Italian Supreme Court has recently ruled that the taxpayer is always given the opportunity to contest the claim of the tax authorities, alleging errors – both factual and legal – committed in the preparation of the tax return, affecting the tax liability. This principle has now been codified in the tax system by Article 2, paragraph 8-bis, of Presidential Decree 322/1998, which provides that ‘the taxpayer has in any event the right to rely, even during the assessment or litigation, on any errors, whether in fact or in law, which have affected the tax liability, resulting in the indication of a higher taxable income, a higher tax liability or, in any event, a lower tax credit’. In essence, it is established that the taxpayer – regardless of the submission of a supplementary declaration in his favour – may rely also in the tax proceedings on errors or omissions (in his favour) committed in the original declaration. It must be pointed out, however, that this rule, although apparently crystal clear, is often forgotten by judges, who oppose the formalistic fact of the single rule of law.

 

 

 

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

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