The chief executive officer of a holding company may be criminally liable if one or more subsidiaries of the group fail to take the necessary precautions to avoid a serious harmful event. This was established by the Court of Appeal of Florence with sentence no. 3733 of 16 December 2019, which reforms the first instance ruling regarding the Viareggio train disaster.
According to the judges, the tragedy was caused by an offense attributable to the companies that own the derailed freight wagon and to the maintenance contractors. But that's not all: responsibility falls indirectly also on the companies controlled by the parent company, whose supervision of compliance with safety rules in railway traffic has proved to be insufficient.
In detail, for the Court of Appeal the holding company is responsible because it heavily interfered in the management of the subsidiaries through a series of guidance and control acts. Consequentially, the managing director of the parent company is held to be the de facto director of the subsidiaries and therefore responsible for all their omissive conduct.
Secondo Assonymous, the Italian Association of Joint-Stock Companies, this reconstruction "has many flaws in reasoning". For example, the association between "the legitimate exercise of management activity and a de facto administration situation" would be incongruous. Assonime therefore disputes the fact that the responsibility can be attributed to the managing director of the parent company "on the basis of an alleged role of de facto director of the subsidiaries, not supported by coherent legal assumptions as required by doctrine and jurisprudence to obtain this qualification”, reads an in-depth study by the Association.
Assonime also underlines that, in light of the "recent acquisitions of corporate criminal law", it is necessary to establish a "correlation between effective power and responsibility for managing a risk area”, so that criminal liability falls only “on those who are in a position to effectively prevent or prevent the offense within the organization”.
