Since its origins, company law has placed itself in the middle of the traditional pair of ‘enterprise’ and ‘liability’, making it possible to exercise business activity while enjoying the benefit of limited liability. At the same time, this opportunity has always fostered the search for stratagems to fully pass on to creditors the risks associated with the entrepreneurial activity. This is a well-known and multiform phenomenon that we shall call ‘eterodirezione abusiva’, an expression which could be approximately rendered as the ‘abuse of the legal personality’ by the ‘dominus’ of the company. Although the vexata quaestio of the abuse of legal personality has been debated among interpreters for over a century, it does not seem to have yet found a definitive answer in the legal system, and indeed continues to encounter partial and largely unsatisfactory solutions in legal terms. In this regard, the need to investigate the phenomenon originates from the empirical observation of recent case law, where (i) the ‘abusive’ connotation of some ‘risk-spreading’ conducts perpetrated through companies is taken for granted and (ii) contradictory views for its repression coexist. More specifically, the hermeneutic approaches and drifts reached up to this point have given rise to widespread uncertainty around the predictability of judicial decisions in this controversial field. While pursuing the goal of finding one unambiguous solution in this multifarious scenario, the work has been structured in four sections. Section I (Overview of the problem) frames the phenomenon of abusive conducts exercised by the dominus over the corporation. In particular, the investigation starts with the analysis of the traditional theories developed around the repression of the abuse of the legal personality, and the focus is placed on the two hermeneutic paths on which case law is currently polarised: the first qualifies the dominus as a holding of a group of companies, and predicates his tort liability; the second depicts the dominus as a shareholder with unlimited liability of a concealed ‘super-company’, and subjects him to personal liability. Section II (The dominus as a holding) subjects the former interpretative trend to criticism. The scrutiny concentrates on the distinction between the ‘group of companies’ as a legal institution and the different phenomenon of abuse of legal personality, a demarcation which leads one to reject judicial attempts to sanction the dominus with tort liability under Article 2497 of the Civil Code. Section III (The dominus as a shareholder in a de facto corporation) investigates the normative bases of -and the many critical issues arising from- the use of the judicial technique called ‘concealed de facto super-company’ as a means of extending the area of personal liability to the dominus of the insolvent corporation. Finally, Section IV (Conclusions) examines the results of the analysis of both hermeneutic paths in a twofold direction. Firstly, in the current and prospective regulatory framework, the all-pervading dialectic between the ‘effectiveness’ of entrepreneurial activity and the ‘formality’ of company law seems to be solved in favour of the latter. Secondly, a bird’s-eye view of the legal system allows one to ascertain the existence of a progressive and ongoing erosion of the role traditionally attributed to both the dogma of inviolability of the legal personality and that of formal imputation of business activity and liability (i.e. spendita del nome). This observation makes it possible to forecast a potential further evolution of the legal system towards a reopening of the debate on the qualification of the dominus as an entrepreneur who can be directly imputed with liability for obligations assumed in the name of the dominated company.

La ricerca prende avvio dalla ricostruzione dei processi socio-economici che hanno portato alla crisi del modo di produzione taylorista-fordista. Muovendo da tali riflessioni, si constata come le imprese “post-fordiste” si avvalgano in misura crescente di lavoratori autonomi, un tempo coordinati e continuativi e, oggi, a progetto (artt. 61 e ss., d.lgs. 276/2003). Tali collaboratori sono, dunque, soggetti ad un potere (contrattuale) di coordinamento del committente che, alle volte, si somma ad una condizione di dipendenza economica dal committente medesimo. Si crea, quindi, una differenziazione interna all'area dell'autonomia coordinata che non pare adeguatamente valorizzata dal legislatore ordinario, ma che sembra interessare i sindacati. Il dato reale vede, infatti, agire rappresentanze varie, sicché occorre circoscrivere l'ambito di applicabilità degli artt. 39 e 40 Cost. L'assenza di un genuino interesse collettivo e di un'effettiva attività di autotutela inducono a ritenere che i collaboratori “forti” e il relativo associazionismo possano beneficiare delle sole tutele poste dagli artt. 2, 18 e 41 Cost. A conclusione si affrontano le problematiche che la ricostruzione così svolta solleva, ovverosia come garantire l'effettività delle tutele riconosciute al sindacalismo dei collaboratori “deboli” e come contemperare l'associazionismo dei collaboratori “forti” con il diritto antitrust comunitario. / The search starts with the reconstruction of socio-economic processes. Moving from these reflections, it's possible to see that today's companies take advantage of increasingly self-employed coordinated and continuous and, after d.lgs. 276/2003 “lavoratori a progetto”. These employees are, therefore, subject to a power (contractual) coordination of the customer that, at times, it adds up to a state of economic dependence by the same. It then creates an internal differentiation into autonomy area that does not seem properly valued by the ordinary legislator, but that seems to involve trade unions. Given that in reality there are different representations, we move to circumscribe the scope of applicability of the Arts. 39 and 40 Const. The absence of a genuine interest and genuine self activities suggest that employees "strong" and its associations can only benefit from the protections posed by Arts. 2, 18 and 41 Const. At the end tackling the problems so that the reconstruction turn raises, namely how to ensure the effectiveness of the safeguards recognized unionism collaborators "weak" and reconcile the associations of employees "strong" with the antitrust law.