Il capitolo XV del progetto di EMCA è il risultato di un commendevole tentativo di elaborare un modello di disciplina generale dei gruppi di società in Europa. Tuttavia, ad avviso dell'autore, il modello appare allo stato sbilanciato, in quanto considera principalmente poteri e doveri della capogruppo, mentre dedica una minore attenzione alla protezione dei soci minoritari e dei creditori delle società controllate, per cui, in generale, non sembra offrire una soluzione ottimale nell'alternativa tra la regolazione del fenomeno (secondo uno dei modelli di disciplina attualmente esistenti) e la sua non-regolazione.

Sommario/Summary:

1. Introduction. - 2. Definition of group of companies. - 3. Right of a parent company to give instructions and group interest. - 4. Protection of controlled companies, their minority shareholders and creditors. - 5. Between the EMCA regulations and the non-general regulations of groups of companies. - NOTE

1. Introduction.

1.1. It is not the same thing for a controlling shareholder to be a (non-entrepreneurial) natural person or a company. In both cases conflicts of interests between the controlling shareholder and the minority shareholders and/or the company are or may be present. But, normally, the content, intensity and nature of the diverging interests or purposes in each of the cases are different. In general, the ultimate interests of the natural person-controlling shareholder are convergent with those of the minority shareholders: all of them want to earn as much as possible in the same company; the diverging interests are normally sporadic and circumstantial. This is normally not the case in groups of companies (in an ample sense). The controlling company acts in accordance with business strategies that count on the controlled companies; the shareholder(s) of the controlling company wish to earn as much as possible in their company, even if at the expense of the controlled companies; if the controlling company, by carrying out its influential power, loses or earns less in a controlled company it is because it is trying to earn more inside itself or in another controlled company; the diverging interests are normally systematic, structural. Not rarely, for example, do the controlling companies impose non-compensated prices on one or another controlled company in intra-group transactions or in licenses for intellectual property rights; determine free financing or financing with low interest rates or with an unreasonable risk; transfer the activity of one of the controlled companies to another which is formed in another country or region; directly or indirectly, exploit the business opportunities of the controlled companies.[1] If the danger of possibly caused damage by the controlling company in a controlled company is a danger of (indirect) damage for the minority shareholders of the controlled company, it is also a danger for the controlled companies' creditors and other third parties: if the net assets of the controlled company decrease, its security to current and potential creditors will also decrease. And the danger increases when multiplication of companies composing the group means the fragmentation of a homogeneous enterprise in sub-capitalized units of limited liability. 1.2. So, it is not surprising that (the few) legislations which intended to globally regulate the groups of companies (the GermanAktiengesetzfrom 1965 - AktG - in the first place) have [...]

2. Definition of group of companies.

According to section 1 of Ch. 15 of the EMCA, a group is the entity, comprising of the parent company and all its national or foreign subsidiaries or entities. A subsidiary is a company subject to direct or indirect control, whole or not, by the parent company (Sections 2 and 3). Control is defined as the power of the parent company to "govern, alone or with other shareholders, the financial and operating policies of a subsidiary" (Section 4). It may be de jure- the control exists, normally, if the parent company, directly or indirectly, detains more than half of the voting rights of the subsidiary (Section 5) - or de facto, if the parent company, besides holding half or less than half of the voting rights, has the possibility, by other means, to determine the subsidiary's policies (Section 6).[3] The standard used to define (vertical) groups of companies seems appropriate. And is more simple than the standards of "unitary management", "subordination contracts" or "integration" and "whole control". It is interesting to note that Section 1 speaks of a group as an "entity". Although without attribution of legal personality, the set of composing members of the group seems to be understood as something with an individual identity. If to this we added the perception of the group as an enterprise[4], we would hope for an assertion of a common liability for the debts of each of the members towards third parties - the liability of all the companies in the group or, at least, the liability of the parent company for the debts of its subsidiaries.[5]But we would look for the mentioned liability in Ch. 15 of the EMCA without success.

3. Right of a parent company to give instructions and group interest.

3.1. According to the general rules and principles of company law, no shareholder has the right to give instructions to the management of its company. Be it a natural person or a legal entity, or be it a controlling or a non-controlling shareholder. It is within the management board's power to manage and represent the company. According to the law and the articles of association, in matters of management, the board may be subject to decisions and instructions of the general meeting. In the general meeting, the controlling shareholder may, evidently, determine the legal will imputable to the company. But, outside the general meeting, he does not have the power to,de jure, determine directors' behaviour. Of course he has the power to do sode facto. But if he does, he will be subject to penalties (mainly when his influence is revealed as a harm to the company). This is also the same, in general, for single-person companies. The sole-shareholder carries out the powers the law or the articles of association give the general meeting of the corresponding type of company. He does not have the right to give instructions to the management board outside of those powers and of the pertinent organic procedure.[6] However, this is not so in de juregroups of companies. The laws with special regulation for groups give the parent companies the right to give instructions[7], including unfavourable ones to the controlled companies (v.g.,AktG, §§ 308, 323, Portuguese Company Code - CSC -, art. 503). It is a special and exceptional right, a "privilege". But justified or balanced, since such laws impose special obligations towards controlled companies (and minority shareholders, if they exist) and/or creditors of controlled companies. 3.2. EMCA's perspective is different. The attribution to the company - note, not to any natural person-controlling shareholder - of the right to give instructions to the management of the controlled company does not have, as in compensation, the imposition of a special liability. In all honesty, the Comments to Section 9 state: "The approach chosen in EMCA is to consider groups and the power of direction of the parent companies over subsidiaries as a reality which has not to be formally 'legalized' or 'declared'. Why would the parent company form a 'legal group' with their subsidiaries, if the price for obtaining a legitimation of its power of direction is so high? Why would the parent enter into such  'unilateral [...]

4. Protection of controlled companies, their minority shareholders and creditors.

Although Ch. 15 of EMCA does not establish special regulations of parent companies' liability, it contains some provisions that protect (or can protect) controlled companies, their minority shareholders and creditors. (1) When a subsidiary company is not wholly owned, its corporate opportunities should not be exploited by the parent company, directly or through another subsidiary, unless there has been authorization from the "disinterested directors" of the subsidiary or, if there aren't any, from its non-controlling shareholders (Section 13). A corporate opportunity belongs to a subsidiary when it is insertable in its activities, or when it receives a business proposal from a third party or it is in negotiations with him for the conclusion of a contract. The provision in Section 13 does not seem in perfect tune with the provisions that grant the controlling company the right to give instructions in the "interest of the group". And may cause complex questions. Imagine subsidiaryA, seated in countryX, receives a very beneficial business proposal from a third party domiciled in countryY(adjacent toX), where subsidiaryBis seated. Will the parent company with seat in countryZbe forbidden to exploit this corporate opportunity throughBin case of no approval from the "disinterested directors" or from the minority shareholders ofA, when it is known, for example, that countryYis more relaxed on tax matters or on labour legislation? On the other hand, if the parent company does not respect Section 13, will it only have to pay damages to the subsidiary to which the corporate opportunity belonged? (2) Section 14, which refers to Section 12, which in itself refers to Ch. 11 of EMCA, establishes the right of the shareholders of a subsidiary to request a special investigation in the parent company relating to decisions that have affected the subsidiary. (3) The expression present in Section 15's heading -Right to sell-out -has been used for cases like those established in its paragraph (1): "When a parent company owns directly or indirectly more than 90% of the shares and of the voting rights, the others shareholders may request that their shares be purchased by the parent company". The provision in paragraph (2) - "The shareholders of a subsidiary can request that the parent company or another person designated by it purchases their shares" - is largely undefined. Through the respective Comments, it is understood that it is applied to shareholders who [...]

5. Between the EMCA regulations and the non-general regulations of groups of companies.

5.1. Between the proposed legal model of the EMCA and the German legal model ofKonzernrecht, I believe that, besides its imperfections, this last one is preferable. For it gives more protection to those who need it: controlled companies and their minority shareholders and creditors. 5.2. In civil liability, if you give (like EMCA does) a controlling company the power/right to manage the controlled company, there should be a corresponding liability.[21] If, because a company has the right to manage its own business, it assumes the responsibility for the obligations that emerge from that business, a company, which dominates another and has the power to manage its business, should also assume the corresponding obligations. When the legal-subjective autonomy of a (controlled) company is only formal, whoever detains the materially derogating power of that subjectivity should be liable. Just as an autonomous company answers, with all its assets, for obligations originated in any of its business branches or departments, so should a controlling company answer for the obligations created in a company materially converted into a business branch or department of the controlled company. Does this go against the "Holy Grail" of limited liability? Yes, but justly. Besides, limited liability became widespread in the middle of the nineteenth century. And only at the end of that century were inter-corporate stock ownership and the constitution of holding companies admitted.[22] Allowing a group of companies with multiple layers of limited liability to insulate the group as a whole and externalize the risk for the involuntary creditors is "a consequence unforeseen when limited liability was adopted long before the emergence of corporate groups".[23] 5.3. With regard to civil liability, I doubt the EMCA's regulatory model is more beneficial than the regulation of groups of companies in the rules and principles of company law in general (and of civil law). In fact, in a large number of national legal systems, in order to make the parent company liable (besides various difficulties) it is possible to resort to means such as de factodirectors (including shadow directors), piercing the corporate veil[24], the liability resulting from abusive resolutions (of the general meeting and the management board).[25] 5.4. It would be recommendable for a legal model of groups of companies for European countries to take into account consolidated European case law on the [...]

NOTE