Contribution by Avv. Laura Andreani published on N&T Plus Diritto – Il Sole 24ORE.
The Court of Cassation, with judgment no. 33856 of 13.09.2021 rendered by the fifth criminal section, ruled on the subjective attribution of a negligent act to a director, even though he was merely a board member without delegated powers.
The Supreme Court, confirming an orientation that is becoming consolidated, has established that, in the matter of fraudulent asset bankruptcy, for the purpose of establishing the participation of a director without delegated powers for failure to prevent the unlawful event, it is necessary that a twofold proof emerges:
(i) the actual knowledge of facts prejudicial to the company or, at the very least, of so-called unequivocal warning signals from which to infer the acceptance of the risk of the occurrence of the unlawful event, according to the criteria proper to eventual intent;
(ii) the will, in the form of indirect intent, not to take action to avert said event.
It should be noted that the rules relating to the obligations and civil liability of directors without delegated powers are set forth in articles 2381 and 2392 of the civil code, pursuant to which such directors, although they no longer have – following the 2003 reform – a true general duty of supervision, must always act in an informed manner and, in any case, are jointly liable if, with knowledge of prejudicial facts, they have not done everything they could to prevent their commission or to eliminate or mitigate the harmful consequences thereof.
In substance, directors without delegated powers are liable for failing to prevent prejudicial facts exclusively where they are aware of such facts (and of their dangerousness), or where they could have acquired knowledge thereof by exercising their power/duty to request information on the management of the company.
Such conduct then assumes criminal relevance in the presence of a specific subjective element.
Indeed, while it is true that the assumption of the office of director entails the assumption of the obligations described above, it is equally true that the breach of these obligations does not entail automatic criminal liability.
In particular, as established by the Court of Cassation, the existence of knowledge or knowability on the part of the director without delegated powers of the commission of unlawful acts in the exercise of the enterprise must be proven, and therefore an eventual intent in the sense of acceptance of the risk of the occurrence of the unlawful event, as well as the will, in the form of indirect intent, not to take action to avert said event.
