ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
However, members of partnership-like entities remain subject to joint and unlimited liability. Claims targeting individuals behind the “corporate veil” usually take a two-tier approach, as follows. • First, actions are brought against the individuals who formally hold roles and functions within the company, such as the actual directors and manag - ing body. • Second, remedies may be sought against shadow directors and ultimate beneficial owners, to the extent that evidence is found connecting these individuals to the offence being perpetrated and/ or where it is discovered that they gained advan - tage from the offence carried out by the apparent fraudsters. Italian case laws impose upon shadow or de facto directors the same liabilities and obligations as upon actual directors, with relevant indemnification obliga - tions towards a company’s creditors and other dam - aged parties, for breach of fiduciary duties. Similarly, ultimate beneficial owners may be held liable if they actively took part in the offence (or benefited from it) and/or if they were systematically involved in the management of the company to the extent that they fall within the category of shadow directors. Article 2086 of the ICC, as recently amended, also imposes upon owners and founders the duty to imple - ment an organisational and management system adequate for the nature and size of the business in order to detect the onset of an insolvency situation and avoid harm to creditors and other third parties. If a company subject to direction and co-ordination is used as a vehicle for fraud, the company’s share - holder and the company’s creditor, as the sole parties that have the right – pursuant to Article 2497 of the ICC – to bring action in this specific case, may take direct action against those responsible, namely: • the controlling company; and • jointly and severally, anyone who participated in the harmful act or knowingly benefited from it, within the limits of the advantage gained.
This provision protects company shareholders from damages in terms of profitability and the value of their shareholding, and company’s creditors from harm to the financial integrity of the controlled company. 3.3 Shareholders’ Claims Against Fraudulent Directors Directors are jointly and severally liable towards the company, its shareholders, creditors and other third parties for breach of their fiduciary duties and/or mis - management. Rules for bringing a claim may vary depending on whether the party actioning the remedy is the com - pany itself or a single shareholder, a creditor or a third party. For companies limited by shares (Articles 2393 and 2393-bis of the ICC), actions brought by the company against directors must first be resolved by the share - holders’ meeting or, alternatively, may be initiated with a resolution of the supervisory board in charge of ongoing management and accounting control. If the resolution is approved with a majority of one-fifth of the share capital, the targeted directors are imme - diately revoked from their office. The action may be brought by minority shareholders representing at least one-fifth of the share capital (or one-fortieth in listed companies) or the lower percentage set forth in the by-laws. Similar remedies are provided for limited liability com - panies (Article 2476 of the ICC), whereby actions may be promoted by each quotaholder in the interest of the company (therefore, there is no need for a majority vote in the quotaholders’ meeting) – with the option to request removal of the involved directors as a pro - visional measure. In addition to this, claims against directors may be brought by creditors if the company’s assets have been depleted and are not sufficient to satisfy their claims. Single shareholders and/or any third party also have the right to initiate an action to recover any direct damage that they suffered (that is different from the harm suffered by the company itself) as a result of directors’ mismanagement and fraudulent conduct.
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