Omissive liability of the Supervisory Board in the absence of managerial delegations

In sentence n. 35314 last August, the Third Criminal Section of the Supreme Court, ruling on the legitimacy of a preventive seizure, addresses the issue of the omissive liability of the supervisory board in the absence of managerial delegations, in relation to the commission of tax crimes by the organization, reiterating the principles consolidated in case law on the position of guarantee of company directors.

The fact
Following the application of preventive seizure and his confirmation in the review, the suspect - as a member of the Board of Directors of a cooperative company - appealed to the Supreme Court, complaining, among other grounds, the absolute failure to state reasons for the existence of fumus commissi delicti, in relation to the commission of the crimes under art. 2 and 8 of Legislative Decree n. 74 of 2000.

In particular, the appellant challenged the attribution of position liability, based only on the role of Director held by the defendant within the company. The Supreme Court declared the appeal inadmissible, reiterating that the perimeter of the Directors' position of guarantee depends on the organizational structure of the company and, therefore, on the existence or absence of a managerial delegation.

The Court, recalling Art. 2392 of the Civil Code, highlights how the rule present in the system is that of the joint and several liability of the members of the Board of Directors, so that each of them is to be considered the holder of a position of guarantee, aimed at preventing the perpetration of acts of mala gestio.

Different, on the other hand, is the case in which the Board of Directors exercises the power vested in it by art. 2381 co.2 and decides to delegate its powers to an executive committee or to only one of its members: in this hypothesis, the liability of non-operating directors for acts committed by the delegated person, is based, not on art. 2392, but rather on art. 2381 last paragraph of the Civil Code, which places an obligation on directors without delegated powers to act in an informed manner. In fact, non-operating directors must be held criminally liable as a result of the wilful or negligent violation of the duty of information incumbent on individual members, in relation to the company's management performance and the most significant operations and which, therefore, requires them, in the presence of warning signs, to assume the information necessary for the prevention of acts detrimental to the company.

Therefore, reiterating the need - not in dispute - to ascertain the psychological element of the crime, the Supreme Court expresses itself in the sense that "in the case of a crime deliberated and directly carried out by individual members of the Board of directors, within the scope of which no specific proxy has been conferred, each of the directors is liable as an accomplice for failure to prevent the event, where a wilful violation of the specific obligation to supervise and control the performance of corporate management arising from the position of guarantee under art. 2392 of the Civil Code can be detected."

In conclusion, it follows from the aforementioned legal framework, based on art. 2392 and 2381 of the Civil Code and aimed at distinguishing the hypothesis in which the board of directors operates with or without delegated powers, that unless the act falls within the powers delegated to the executive committee or to some of its directors, all members of the board of directors are liable, by way of omission, for crimes committed by one or more directors.