Finanziamenti nell'attività di direzione e coordinamento di società
Author(s)
De Luca Picione, Andrea
Date Issued
May 8, 2006
Type
Doctoral Thesis
Abstract
Our research herein summarized tried to develop an analysis of the several aspects concerning the item of company’s “management and coordination” (“direzione e coordinamento di società”) with particular regard to the financial relationships inside the group of companies.
The group of companies “entries” indirectly in our Civil Code (it has to be noted that in the Reform, the term “group” is not utilized at all) in which is made a clear reference to its essential nature: the existence of an unitary and supreme operational direction given to different companies by one entity with a view to a better achievement of the goals pursued by the whole group through several forms of influence and coordination. This could be, also according to the interpretation suggested by many authors in the past, the meaning to be adopted in relation to the activity of management and coordination.
This activity, as better described in the Research, shows its importance above all in connection with the relationships construed between the holding and its subsidiaries or directly between the companies belonging to the same group, in execution of the flow of instructions usually originating from the holding and however in order to reach the group’s interest.
A concrete importance in relation to such relationships has been given to the financial operations executed inside the group of companies (“finanziamenti infragruppo”). Notwithstanding the above mentioned importance, in the First Part of the Research, for a need of completeness and above all on the basis of their fundamental relevance, we have in any case analysed also the other rules (different from article 2497 quinquies) introduced through the Reform in the Italian Civil Code in relation to the management and coordination of the companies.
In the light of the above, we may observe, also in the (opportune) absence of a definition of group, a complex regulation concerning the liability for non proper management of companies by the holding – as essential principle – and other rules aimed at protecting the shareholders (or quotaholders) and the creditors of the subsidiaries and concerning publicity, withdrawal and in particular the financial operations inside the group.
In this scenario, it has to be underlined that the definition of “managing and coordination” appears as fundamental, so that, taking also into account the interpretation suggested by authors and case law in the past, we have analysed the new section IX, Title V, Book 5 of the Italian Civil Code with a view to find a possible exhaustive interpretation of such concept. In this respect we think that articles 2497 sexies and 2497 septies of the Civil Code should be considered as essential.
As anticipated, in the Second Part of the Research, the item “financial operations inside the group” was analysed in detail. In the new Section IX, Title V, Book V of the Italian Civil Code, Clause 2497 quinquies sets forth a specific regulation concerning the financial operations inside the group of companies and more in detail the loans made by an holding company (or by another subsidiary) in favour of a company subject to management and coordination.
Article 2497 quinquies therefore – in the light of the above mentioned reference to article 2467 too – shows several issues also taking into account that in our legal system the utilization of the shareholders’ financial operations for several objectives is very common, often linked to needs to face undercapitalizations when the financial condition would require a capital contribution. Such rules in other words aims at identifying the relevant cases of undercapitalization (also in a group of companies view) and proposing adequate “sanctions”. In our Research, we tried to show a complete analysis of several items connected with such argument.
Additional information
Dottorato di ricerca in Diritto dell'economia
Subjects
File(s)![Thumbnail Image]()
Name
adelucapicione_tesid.pdf
Size
633.02 KB
Format
Adobe PDF
Checksum (MD5)
7769d0652cf7862969b9c206422685e0