Judgment No. 16109 of 2024: The Importance of Oversight in Corporate Administration

Judgment No. 16109 of February 6, 2024, issued by the Court of Cassation, offers significant insights into the responsibilities of company directors, particularly concerning the role of de facto directors. This ruling is situated within a complex legal context where the distinction between formal and de facto directors becomes crucial for the analysis of criminal liability. The Court indeed declared the appeal inadmissible for a formal director who had failed to oversee the activities of the de facto director, thereby excluding the application of the mitigating circumstance of minor participation.

Legal Context of the Judgment

The case at hand concerns Salvatore C., accused of facilitating the commission of bankruptcy offenses due to his inaction in supervising the de facto director. The Court referenced Article 110 of the Criminal Code, which governs joint liability for offenses, and Article 216 of the Bankruptcy Law, emphasizing that the lack of oversight by the formal director constitutes an active conduct that contributes to the commission of crimes.

Failure of the formal director to oversee the activities of the de facto director - Mitigating circumstance of minor participation - Exclusion - Reasons. In matters of joint liability for offenses, the mitigating circumstance of minor participation is not applicable to the formal director of a company who has failed to exercise any oversight over the activities of the de facto director, as, by doing so, they have not only facilitated the commission of criminal conduct by the latter but have also provided an essential and indispensable contribution to the realization of bankruptcy offenses.

Practical Implications of the Judgment

This judgment has significant implications for company directors. Specifically, it highlights that:

• Criminal liability can extend to formal directors in cases of failure to oversee.
• It is essential for directors to adopt adequate supervisory measures over the conduct of de facto directors.
• Lack of oversight cannot be considered minor participation but rather an active contribution to the commission of offenses.

The Court clarified that the omission of oversight not only facilitates the illicit act but is itself a criminally relevant conduct. Therefore, directors should be aware of their duties and responsibilities to avoid incurring severe penalties.

Conclusions

In conclusion, Judgment No. 16109 of 2024 represents a significant step forward in defining the responsibilities of directors in the corporate sphere. It underscores the importance of active and constant oversight of company activities, not only to ensure legality but also to protect the interests of the company and its stakeholders. Directors are hereby warned: insufficient vigilance can lead to significant criminal consequences.