07 Nov administrator by right and administrator in fact

In corporate criminal law, the distinction between de jure administrator and de facto administrator takes on central importance, especially when the company goes through a phase of crisis and is subsequently subjected to judicial liquidation. Not always, indeed, the person formally invested with the office of director coincides with the person who actually exercises the decision-making and management powers. In numerous entrepreneurial realities, the actual management can be entrusted to partners, family members, consultants or external parties who, even without a formal investiture, assume a decisive role in company choices. This situation poses a particularly delicate legal question: who must be criminally liable for conduct that has led to the impoverishment of the company's assets or compromised the correct keeping of accounts? The answer cannot be entrusted exclusively to the formal ownership of the office, but it requires a careful reconstruction of the activity actually carried out, of the powers exercised and awareness of the contested conduct. The fundamental regulatory reference is represented by art. 2639 c.c., which regulates the equivalence to the formally qualified individual of those who continuously and significantly exercise the typical powers inherent to the qualification or function. The provision constitutes an essential tool to prevent the effective exercise of the management activity from escaping the legal consequences through the absence of a formal appointment. The qualification of director is not actually required, however, that the subject exercises all the powers of the administrative body without distinction. It is sufficient that a significant and non-occasional exercise of management functions is demonstrated, such as to highlight effective participation in the management of the company. Jurisprudence has progressively clarified that the identification of the de facto administrator must be based on an overall assessment of the available elements. They can take on importance, among others, relationships with suppliers and customers, employee management, contract negotiation, making financial decisions, intervention in asset transactions and the concrete ability to determine corporate choices. A mere influence on the company's decisions is therefore not sufficient, nor simple participation in corporate life. It is necessary to verify whether the person has actually exercised powers attributable to the administrative function. Once the qualification of de facto director has been ascertained, the subject can be equated, within the limits established by law, to the formally appointed director. In matters of fraudulent bankruptcy, this means that the administrator can in fact be directly responsible for distracting conduct, dissipation, concealment or destruction of company assets, as well as criminally relevant accounting irregularities. Responsibility does not simply derive from having been the most influential person within society, but on the concrete attributability of the illicit conduct and the existence of the objective and subjective elements required by the incriminating case. Particularly significant is the position of who, although he is not formally a director, has determined the operations that have led to the unjustified outflow of resources from the company's assets. The transfer of goods without adequate consideration, the transfer of activities to companies attributable to the same person or the use of company resources for purposes unrelated to the interests of the company can take on criminal significance, where the conditions for fraudulent patrimonial bankruptcy are met. In this context, the lack of immediate personal advantage does not constitute, in itself, an element sufficient to exclude liability. The assessment must focus on the nature of the operation, on the destination of resources and its impact on the company's assets and on creditor guarantees. The issue takes on an even more complex dimension when the actual management is entrusted to a de facto administrator, while another person is formally invested with the office. That's the case, frequently encountered in practice, of the administrator who accepts the appointment without actually participating in the management, leaving every decision to a partner, to a family member or an external party. Jurisprudence recognizes that even the de jure administrator can be held accountable for crimes committed by the de facto administrator. Such responsibility, however, it cannot be automatic. L’art. 40, comma 2, c.p. establishes that not preventing an event that one has a legal obligation to prevent is equivalent to causing it. The provision may become relevant when the administrator is formally appointed, while having the necessary powers to intervene, knowingly fails to prevent criminally relevant conduct. The central point is represented by the actual existence of a legal obligation to intervene, from the concrete possibility of fulfilling them and from the awareness of the illicit conduct. The director by right cannot therefore be held liable solely because he holds the office, but neither can he be considered automatically exempt due to the fact that he has delegated the management entirely to another person. Criminal liability requires concrete verification of the omissive conduct and the subjective element. One of the most relevant aspects concerns the psychological profile of responsibility. Mere knowledge of the existence of a de facto director does not necessarily imply awareness of his possible criminal conduct. It is necessary to distinguish between the acceptance of a merely formal role, awareness of management irregularities and concrete knowledge of operations aimed at subtracting resources from the company's assets or compromising creditors' guarantees. The formal administrator's liability can therefore arise when his omissive conduct knowingly contributes to the commission of the crime, but it cannot be affirmed on the basis of an automatism deriving from the corporate position alone. The distinction is essential to preserve the principle of guilt and prevent criminal law from being used to sanction simple negligence in corporate management, outside the conditions established by law. Issues relating to de facto administration are particularly relevant in fraudulent bankruptcy proceedings. In such cases, investigative and judicial activity frequently tends to reconstruct corporate operations prior to the judicial liquidation, identifying the subjects who actually determined the company's capital and accounting choices. The analysis may concern money transfers, sales of goods, relationships with associated companies, intragroup operations, financing, bank transactions and management of accounting documentation. It is not uncommon for investigations to highlight a separation between the person formally invested with the office and the person who, in reality, exercised decision-making power. In these cases, the reconstruction of responsibilities requires an in-depth examination of the individual operations and the relationships between the subjects involved. The presence of an administrator does not de facto exclude, indeed, the possible liability of the legal administrator, just as the formal ownership of the office does not automatically entail the attribution of all illicit conduct carried out within the company. Responsibility must be identified through a rigorous investigation of the conduct, of the powers actually exercised and of the causal and psychological contribution possibly made to the commission of the crime. The problems relating to the administrator in fact highlight, Furthermore, the importance of correct corporate organisation. The attribution of management responsibilities, the traceability of decisions, the preservation of accounting documentation and the formalization of decision-making processes are essential tools for reducing the risks associated with company management. Effectively structured governance allows the subjects responsible for decisions to be identified more clearly and to avoid situations in which management power is exercised by subjects without formal investiture. Particular attention must also be paid to extraordinary operations, to transfers of assets, to relationships with companies attributable to the directors and to operations carried out in proximity to a crisis situation. Prevention cannot be limited to the preparation of formal documents, but it must translate into an effective control system, accountability and transparency. For administrators, this means understanding that the acceptance of a corporate position entails obligations that cannot be neutralized through a merely nominal delegation of management. For entrepreneurs, it means instead recognizing that the de facto exercise of managerial powers can entail legal consequences even in the absence of a formal appointment. The distinction between de jure director and de facto director represents one of the most significant issues in corporate criminal law. The evolution of jurisprudence confirms the principle according to which responsibility must be identified on the basis of the effective exercise of management powers, without attributing exclusive importance to the position formally held. The de facto administrator can be directly responsible for criminally relevant conduct attributable to the actual management of the company. The legal administrator, instead, he can be held accountable for his active or inactive contribution, provided that the specific conditions of criminal liability are ascertained. The principle that emerges is that of personal responsibility, based on concrete participation in the fact and on the existence of the subjective element required by law. In an increasingly complex business context, the correct identification of corporate roles and awareness of the obligations deriving from management represent fundamental tools not only for the protection of the company, but also for the prevention of criminal risks borne by administrators.