The ruling of the Venetian Court is distinguished by a wide-ranging systematic overview of the constituent elements of the responsibility of the institutionwhich was followed by the detailed examination of the shortcomings of the model referred to inart. 6D.Lgs. 231/2001 adopted in the present case.
Predicate crimes
Reaffirmed the hybrid nature of liability for organization fault, as real the third kind of responsibilitythe sentence adhered to the motivational framework of the first instance judges, who had identified the predicate crimes in information rigging (art. 2637 cc) and in the obstacle to supervisory functions (articles 2638 c.c.).
The conduct judged to be criminally relevant would have been carried out in a context of operational anomalies identified by the Bank of Italy following supervisory inspections ordered at the beginning of 2015 at the Vicenza credit institution, which was already in a state of corporate crisis at the time , which subsequently resulted in actual insolvency.
The major problem that emerged as a result of the inspections concerned the phenomenon of “financed capital”, given that the Bank had failed to deduct from its regulatory capital the capital raised against loans it disbursed to subscribers of its shares.
With respect to the problems thus identified, the judges of the appeal have identified the actual object of the criminal reprimand not so much in the operational anomalies created upstream, with regard to financial assistance to shareholders for the purchase of treasury shares, but in the subsequent conduct of information rigging and obstacle to supervision implemented downstream, with the main purpose of “concealing such incorrect operation (which, in itself, totally disregarded the criminal activity in question)”.
The relevance of the organizational model and of the supervisory body
Having reconstructed the objective criteria of connection with the conduct of the agents, the appeal judges then arrived at the core of the organizational fault, confirming the failure by the Bank with respect to the obligation to adopt and effectively implement a model organizational (MOG) suitable for preventing the commission of the predicate crimes of market manipulation and obstacle to supervision.
The inadequacy of the Organizational Model
With appreciable definitional intent, the role of the Model was reconstructed by the judges of the appeal in terms of “a device aimed at preventing the perpetration of criminal activities carried out […] in the interest or to the advantage of the body itself and, therefore, to avoid the unfavorable consequences constituted, for the body in question, by the relative sanctions”.
The unsuitability and inadequacy of the Model, already recognized by the Court, was firstly confirmed below the general profile of risk profiling, due to the vagueness of the content of the OMM with respect to the prevention of the crimes of market manipulation and obstruction of supervision. The judges stigmatized “the absence of referable specific forecasts, as well as the methods of preparation of the financial statements […] and disbursement of credit, to essential profiles of the bank’s operations, always in relation to the danger of committing the aforesaid crimes”.
According to the Court, the Model should have provided for:
|
a) mechanisms for controlling the placement of the bank’s shares, the value of which in financed capital transactions was substantially self-determined by the Bank itself; |
|
b) indication of the destination of the loans granted with respect to the placement of the institute’s shares. In this sense, the OMM did not contemplate “the direct verification of financing transactions”, nor did it provide for “interlocutions with financed customers, not even in relation to capital increases”; |
|
c) information flows internalinherent, by way of example, the reporting of individual company processes, which should have been addressed to the supervisory body “in a manner such as to ensure real guarantees of validity”; |
|
d) information flows external: punctual safeguards should have been implemented to check the “substantiation of communications addressed to the market and to the supervisory bodies” by attributing “preventive verification powers” to the SB with specific reference to the crime of information rigging. |
If the first three points respond to a commendable attempt to give an effective content to the characteristics of the organizational model, only generically outlined by the legislator in par. 2 ofart. 6 of the D.Lgs. 231/2001the provision of controls on the flow of information addressed to the market and to the supervisory authorities has not failed to raise some doubts among the interpreters.
In this regard, it was noted that the reconstruction of the 231 Model carried out by the Court of Appeal would go so far as to attribute to the Supervisory Body prior verification powers on the news and communications disseminated by BPVi, giving rise to potential interference and overlapping with respect to the typical attributions of assembly and management bodies.
From this last point of view, the distance between the conclusions of the Venetian judges and the recent arrest by the Court of Cassation on a similar case in the matter of market manipulation was underlined, in which it was considered “suitable to prevent the commission of “crimes of communication” a corporate organizational model which you do not contemplate forms of preventive control on the text of the press releases and information disclosed by the top management bodies, as these communications are an expression of the autonomous management power of the latter” (Cass. pretty. sec. VI, 15.06.2022, n. 23401).
The nomophilia judges therefore cast serious doubts on the SB’s ability to express a “dissenting opinion” which encroaches on the operational powers of the shareholders’ meeting and other corporate bodies.
The misalignment with respect to the indications provided by the judges of legitimacy is more apparent than effective, since the Venetian college, after having expressly referred to the ruling of the Supreme Court, concluded by attributing decisive importance to the fact that in the case in point the communications addressed to the authorities or to the public “were not previously communicated to the SB for a preliminary assessment or, in any case, for appropriate knowledge”.
In any case, a more in-depth focus on the relationship between the corporate bodies and the SB would have been desirable, in order to exclude that the powers of the latter come to include a check on the merits of the directors’ work, in violation of the business judgment rule or, even, a real obligation to prevent the crime.
Failure to implement the OMM: the role of the supervisory body
After stigmatizing the generic nature of the provisions of the OMM and, in any case, the inadequacy of the same to prevent the commission of the crimes of market manipulation and obstacle to supervision, the judges of the appeal focused on the implementation of the Model itself, recognizing the lack of a effective supervision by a supervisory body “truly suitable for the purpose” under the dual profile of the “endowment of adequate powers” and, above all, “the indispensable requisites of independence”.
In strict continuity with what the Court of Vicenza had already found at the outcome of the first instance judgment, the Venetian Court ruled out that in the present case the supervisory body was endowed with autonomous powers of initiative and control.
Under the profile of autonomy requirementto be understood in the same way as “absence of subordination of the parent to the controlled and, in any case, of conditioning reasons”, the judges of the appeal valued, as symptomatic indices:
|
1) the circumstance that the chairman of the SB, in his capacity as “pro tempore head of the Internal Audit Department”, was a hierarchical and functional employee “precisely by the powers he was supposed to control”; similarly, the other two members of the same Body would have received remuneration from companies attributable to the Bank, “such as to undermine their independence of judgement”. |
|
2) the minutes of the meetings of the SB, which “do not offer the slightest insight into any planning of verification activities, nor do they show that critical issues had been detected, not even in relation to the most striking cases”. |
On the basis of these preliminary findings, the Venetian judges confirmed the “almost complete de facto osmosis between the SB and the top management”, with the consequence that the commission of the crimes by the latter would not have entailed the need to fraudulently evade the Model in question, in itself inadequate to implement a preventive verification.
In conclusion
The ruling under comment is characterized by a particularly incisive examination of the content and implementation of the organisation, management and control model referred to inart. 6 what. 1 part Decree 231.
Without limiting themselves to the necessary verification of the content-structural deficiencies of the case in question, the Venetian judges intended to offer further meritorious indications on how the Model should have been prepared and implemented to effectively prevent the commission of crimes.
The analysis carried out by the Court reveals the central role that the SB should have assumed with respect to the control of the share placement, the verification of the financing operations, as well as the scrutiny of the flow of information inside and outside the bank.
In addition to taking on different shapes depending on the specific characteristics of the individual company, the OMM should also harmonize with the broader internal control and risk management system, going to form the central nucleus of a compliance structure with necessarily variable geometries.
The chain of controls outlined in this way should include the institutional bodies (Board of Statutory Auditors or Supervisory Board) and the corporate internal audit and risk management functions, in order to establish an integrated process for identifying, measuring, managing and monitoring risks, while respect for the characteristics of centrality and autonomy that distinguish the SB.
The goals of complex compliance structure they should therefore be identified in the efficiency of corporate processes, in the reliability of information of a managerial and accounting nature, as well as, as an external limit, in the compliance of the entity’s work with respect to the legislation of a regulatory nature.
It is evident, however, how the system is still far from finding its own point of equilibrium especially with regard to the harmonization of the forecasts of the D.Lgs. 231/2001 with the additional compliance safeguards of a civil and supervisory nature.
Normative requirements:
Copyright © – breaking latest news
Court of Appeal of Venice, sentence 4 January 2023, n. 3348