La responsabilità dei soggetti in posizione di controllo nella legge fallimentare russa
Vladimir Comte-Vladimir Domashin
Una recente modifica alla legge fallimentare russa introduce il concetto di responsabilità sussidiaria delle persone in posizione di controllo nei confronti dei creditori di una società in situazione di crisi. L’articolo evidenzia i criteri in base ai quali vengono identificate le persone in posizione di controllo, che possono essere anche amministratori, nonché i presupposti al verificarsi dei quali si configura la responsabilità sussidiaria. Le linee guida emanate dalla Suprema Corte evidenziano con chiarezza i criteri interpretativi che devono essere seguiti nell’applicazione della nuova disciplina, attribuendo un ampio margine di discrezionalità al giudice nel valutare le circostanze di fatto che giustificano l’insorgere della responsabilità sussidiaria, anche al di là dei limiti posti da un’interpretazione letterale delle norme.
A recent amendment to the Russian bankruptcy law introduced the principle of subsidiary liability of the controlling persons towards the creditors of a company in a situation of distress. The article explains the criteria on the basis of which to identify the controlling persons – including directors – as well as the circumstances that may ingenerate subsidiary liability. The ruling of the Supreme Court clearly outlined the criteria that must be followed in applying the new provisions of the bankruptcy law. It recognized a large discretionary power to the judges in evaluating the factual circumstances that justify the arising of the subsidiary liability, even beyond the limits imposed by a literal interpretation of the law.
KEYWORDS: Russia– Supreme Court – controlling person – liability.
Insolvency matters in Russia are primarily regulated through the Russian Civil Code, Federal Law “On Insolvency (Bankruptcy)” dated 26 October 2002 No. 127-FZ (hereinafter – the “Law”) and extensive court practice.
A concept of subsidiary liability was introduced into the Russian bankruptcy legislation rather recently through the adoption of Federal Law dated 29 July 2017 No. 266-FZ “On introduction of amendments to the Federal Law on Insolvency (Bankruptcy) and the Code on Administrative Offences” (hereinafter – the “Amendments”).
These new amendments provide for a possibility to impose subsidiary liability on controlling persons when full discharge of the creditors’ claims becomes impossible due to actions or omissions of such controlling persons.
According to the most recent statistics, the number of claims filed for subsidiary liability has drastically increased in the second quarter of 2019, going up 25.6% compared to the same period last year. At the same time the number of claims acknowledged by the courts has decreased from 30% to 26%, and the general amount of subsidiary liability has doubled up to 79.5 billion rubles (approximately 1,1 billion EUR).
2. Notion of the controlling person
The Amendments entered into force in July 2017. Provisions of Article 61.10 of the Law provide for a basic definition of a controlling person, being either an individual or an entity, as a person able to determine the economic activity of the debtor. To be determined as a controlling person for the purposes of subsidiary liability, such control has to be exercised by a controlling person over the period of three years preceding the identification of the signs of bankruptcy of the debtor.
The Law provides for a few clear assumptions when the control and thus the status of a controlling person is presumed under the disputable presumption:
- when the person is a CEO (even nominal) of the debtor;
- when the person had the right to solely or jointly with other persons, control 50% or more shares or participatory interest of the share capital of the debtor;
- when the person benefitted from illegal or mala fide actions of the management (CEO or other persons having authorities to act on behalf of the company) of the debtor.
Disputable presumption of the status of a controlling person has the nature of a presumption prima facie, which has to be contested and overturned by clear evidence confirming the absence of control. Such evidence has to be provided by the presumed controlling person.
The law also provides that ability to control the debtor can be reached due to the job function of the individual (CFO, chief accountant, etc.), due to kindred relationships with the officers of the debtor, due to possibility to act on behalf of the debtor based on the power of attorney or otherwise, including by forcing the debtor’s CEO or its officers by other means.
The Law stipulates that a person cannot be considered as controlling when it owns 10 % or less of the share capital of the debtor and receives usual and reasonable income derived of such possession.
3. Liability of controlling persons
A controlling person can be subject to subsidiary liability in the following cases:
- When full discharge of the creditors’ claims is impossible. When such discharge is impossible due to actions and/or omissions of one controlling person, such person shall be subject to subsidiary liability. In case of concerted actions on the side of several controlling persons, such persons will bear subsidiary liability towards the debtor jointly, meaning that the creditors can claim the full or part of their claims to either controlling person or to all, at their discretion;
- When the debtor has not filed a petition in bankruptcy on its own, or in case such petition has been filed late;
- When there have been violations of the Law. Such violations occur if:
a) controlling person has filed a petition in bankruptcy when it had a possibility to discharge creditors’ claims in full; or
b) a controlling person failed to contest unreasonable claims of the creditors.
Such actions or omissions have to ..