De jure control, de facto control, and significant influence: the impact on the legal form of the holding company

In the landscape of corporate governance, the choice of the legal form for a holding company is not neutral; it depends strictly on the role it exercises over its subsidiaries. When a holding company acquires stakes to direct strategic, financial, or commercial choices, it constitutes management and coordination activities aimed at creating group synergies.

The distinction between control and significant influence

To effectively exercise such activities, the holding company must possess decision-making power that can manifest in various forms:

• De jure control: when the holding company holds the majority of votes in the ordinary shareholders' meeting.

• De facto control: when the votes, although less than 50%, allow for the exercise of a dominant influence.

• Significant influence: presumed when at least one-fifth of the votes (or one-tenth for listed companies) can be exercised in the ordinary shareholders' meeting.

For the purposes of calculating control thresholds, votes belonging to subsidiaries, fiduciaries, or intermediaries are also counted.

The constraint of the commercial corporate form

A critical economic point concerns the economic nature of the activity. A holding company that coordinates subsidiaries or associates engaged in business activities is itself considered an entity performing economic activity.

Consequently, pursuant to Art. 2249 of the Italian Civil Code, such a holding company cannot be established as a simple partnership (società semplice), but must mandatorily adopt the form of a commercial company (either a partnership or a capital company).

The presumption of management and "proof to the contrary"

The legal system establishes a presumption: if control exists under Art. 2359 of the Italian Civil Code, the exercise of management and coordination activities is presumed. Although the absence of structures dedicated to financial or steering activities does not a priori exclude such a role, the lack of concrete coordination acts can facilitate "proof to the contrary."

Such proof is often of interest:

• Both for the holding company itself, to limit certain liabilities.

• And for the Tax Authorities, to ascertain the "static" nature of the company and the related tax implications.

Protection and Governance

The correct qualification of the control relationship is the prerequisite for effective asset protection. Separating operational risk and managing generational transition through a holding company requires a comprehensive vision that combines the rigor of legal instruments (shareholders' agreements, trusts, statutory clauses) with the regulatory obligations related to the corporate form.

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