ITALY Law and Practice Contributed by: Francesco Di Carlo and Filippo Raynaud, FIVERS Studio Legale e Tributario
SPA The directors are liable for damages against the com - pany, its shareholders (or quota-holders, in an SRL) and creditors in the event of a breach of their duties. In an SPA, the following claims for damages may be brought against directors in the event of a breach of their duties: • claim for damages on behalf of the company, pur - suant to: (a) a resolution by the shareholder meeting; or (b) a resolution by the board of statutory auditors; • claim for damages on behalf of the company, initi - ated by minority shareholders (at least 20% of the capital or the percentage set forth in the by-laws in a non-listed SPA; at least 2.5% of the capital or the lower percentage set forth in the by-laws, in a listed company). • claim for damages by the company’s creditors (if the ability of the company to pay its debts has been infringed); • claim for damages by individual shareholders and/ or third parties (in the event they have been directly affected by a breach of the directors’ duties). In case of insolvency, the legal actions under the first three bullet points above may be initiated by the offic - er responsible for the relevant insolvency proceeding. SRL In an SRL, the following legal actions may be brought against directors in the event of a breach of their duties: • claim for damages by any quota-holder (regardless of their participation); • claim for damages by the company’s creditors (if the ability of the company to pay its debts has been infringed); and • claim for damages by individual quota-holders and/ or third parties (in the event they have been directly affected by a breach of the directors’ duties). According to prevailing case law and majority of legal scholars, a claim for damages may also be brought against the directors on behalf of the company as well
quate organisational, administrative and account - ing structure. In addition to the general duties applicable to all direc - tors, delegated executive directors are also subject to the following additional general duties. • Duty to ensure organisational adequacy – del - egated executive directors must ensure that a company’s organisation and administrative and accounting structures are adequate considering its nature and size (Article 2381, paragraph 5, of the Civil Code). • Duty to inform – delegated executive directors must periodically report to the board of directors and the board of statutory auditors on company performance and its foreseeable prospects, as well as on significant transactions carried out by the company and its subsidiaries (Article 2381, para - graph 5, of the Civil Code). The same general duties indicated above may be applied to the directors of an SRL (Articles 2475 and 2476 of the Civil Code). 3.7 Responsibility/Accountability of Directors Directors owe their duties primarily to the company, its shareholders (or quota-holders, in an SRL) as well as to its creditors (as to the capacity of the company to pay its debts). The by-laws of a company may also require directors to pursue the interest of other stakeholders, including employees, clients, suppliers, creditors, public admin - istration and society in general (ie, so called società benefit ). It bears noting that according to the Code of Corpo - rate Governance, a listed SPA should pursue “sustain - able success”, aiming at creating long-term value for the benefit of the shareholders, “taking into account the interests of other stakeholders relevant to the company”. 3.8 Breach of Directors’ Duties Under Italian law, the rules regarding the enforcement of directors’ duties and claims for damages differ depending on the corporate form.
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