ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
• the appointment of independent directors and annual assessment of their independence; • the adoption of internal rules and procedures that define the functioning of the board and its committees; • the appointment of “lead independent direc- tor” in specific instances, who has the task of collecting and co-ordinating the requests and contributions of non-executive directors and co-ordinating the meetings of the independ - ent directors; • the appointment of board committees with informative, propositional and consultative functions, and in particular: (a) a Control and Risk Committee; (b) a Remuneration Committee; and (c) a Nomination Committee; • conducting of a periodic self-assessment by the board; • guidelines for remuneration policies for executive directors and top management; and • the adoption of an internal control and risk management system. 2. Corporate Governance Context 2.1 Hot Topics in Corporate Governance In the last months there has been an intense debate among legal scholars and operators on the following “hot topics” regarding the corpo - rate governance of listed companies: • the fiduciary duties of the board of directors of a target company in the context of a hostile takeover and their legal obligation of “pas- sivity” (ie, refrain from potentially defensive activity without the consent of the sharehold - er agreement, as provided by Article 9 of EU Takeover Directive, Directive 2004/25/EC); • the significant limitations and procedural hur - dles imposed by a recent legal reform on an
incumbent board of directors for the presen - tation of a slate of candidates for the appoint - ment of a new board of directors; and • the ambiguities of the Italian law that entitles the Italian government to exercise a veto right and/or impose restrictions on the acquisition of Italian companies operating in strategic sectors (so called “golden power” ), and the significant leeway that such golden power allows the government. 2.2 ESG Considerations With the Legislative Decree No 125/2024, the Italian legislature has implemented the EU Cor - porate Sustainability Reporting Directive, or CSRD (Directive EU 2022/2464), which requires large companies and listed SMEs (excluding so-called micro-enterprises) and parent compa - nies of large groups to prepare and publish an annual comprehensive report on sustainability, in accordance with the European sustainability reporting standards (ESRS), covering environ - mental and social impacts, governance frame - works, sustainability-related risks and opportu - nities, and strategic objectives. The new legislation has introduced the role of the sustainability auditor, who is required to provide assurance on a company’s sustainability report - ing, ensuring its accuracy and compliance with regulatory requirements and standards like the ESRS. The schedule for the entry into force of the new reporting obligations is different, depending on the different category of each relevant entity. Other than the new rules implementing the CSRD, there is not a general reporting obliga - tion on ESG matters.
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