Corporate crimes of the director

Corporate crimes of the director

The Supreme Court of Cassation has intervened in the matter of corporate crimes and liability of the Administrator, upon appeal by the cassation lawyer who filed the appeal.

 The case initially concerned a ruling by the Court of Milan, which found the de facto director of a joint-stock company guilty of the crime under Article 5 of Legislative Decree 74/2000 for failing to file a tax return for the 2010 tax year, resulting in tax evasion amounting to nearly one million euros.

The Supreme Court ruled as follows:

In line with the almost unanimous views of the legal doctrine, starting from the functionalist criterion by which the factual basis of corporate management must prevail over the formal qualification held, it has been held that the label is irrelevant in privileging the actual performance of the function and the consequent equivalence of de facto directors to those formally invested with the office. This is also confirmed at the regulatory level by Article 2639 of the Civil Code, which provides for the corporate crimes envisaged by the Civil Code to be equivalent to the person formally invested with the qualification or holder of the function provided for by law of anyone who continuously and significantly exercises the typical powers inherent to the qualification or function. Although dictated in the area of corporate crimes, this provision has been considered the codification of a general principle applicable to other criminal law areas, as well as civil and tax law. This principle thus impacts not only the applicability of the de facto director's complicity in crimes of commission, but also in specific crimes of omission, in the sense that the de facto director is the primary perpetrator of the crime. In any case, with respect to the liability of the de facto director for specific crimes of omission formally attributable to the nominee, this Court has repeatedly affirmed, in relation to the tax crimes covered by Legislative Decree 74/2000, that the de facto director is liable either as the primary perpetrator, as the beneficial owner of the company's management, or in any case because he or she is deemed to be legally equivalent to the de facto director.

corporate crimes of the director.

 

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