ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
tasks and the number and skills of non- executive directors should ensure significant influence in the decision-making process of the board and guarantee an effective monitor - ing of management; • a significant number of non-executive direc - tors should be independent (in general, at least two independent directors; in larger companies with a concentrated ownership structure, at least one-third of the board; in other larger companies, at least half of the board); • the company should apply diversity criteria to the composition of the board of directors, ensuring the primary objective of adequate competence and professionalism of its mem - bers; and • each company should define the diversity criteria for the composition of the board of directors and the control body, and identify the most suitable tool for their implementa - tion, considering its ownership structures. It bears noting that listed companies are required to include in their annual “report on corporate governance and ownership structure” descrip - tion of the diversity policies applied in relation to the composition of the administrative and control bodies or explain the reasons why they decided not to adopt any diversity policy (unless the information is referred to in the “sustainability report” , see 2.2 ESG Considerations ). Specific composition requirements are also mandated pursuant to specific sector laws (eg, banks and financial institutions). 4.4 Appointment and Removal of Directors/Officers In SPA and SRL, a person that has been dis - qualified or declared bankrupt or sentenced to a penalty involving a prohibition to hold public
office or managerial roles may not be appointed director (Article 2382 of the Civil Code). Addi - tional requirements apply to listed SPAs (as set forth in Ministerial Decree 162/2000) as well as to companies subject to specific sector laws (eg, directors of banks are required to comply with so-called fit and proper requirements). Under Italian law, the mechanisms for appointing and removing directors vary depending on the corporate form and whether a company is listed, as indicated below. SRL In an SRL, directors are appointed and may be removed through a vote of the quota-holders, unless the by-laws provide otherwise (Article 2475 of the Civil Code). SPA Directors are appointed by the ordinary share - holder meeting (Article 2383 of the Civil Code). The by-laws may entitle specific categories of shareholders and/or holders of participation financial instruments with a right to appoint directors. Directors may be removed any time by the shareholder meeting, provided that in the event of a removal without cause the removed director is entitled to damages. In a listed SPA, the appointment of directors by the shareholder meeting is conducted through a slate-voting mechanism provided in the by-laws (see 1.3 Corporate Governance Requirements for Companies With Publicly Traded Shares ), designed to ensure representation of minority shareholders (Article 147-ter UFC). The compo - sition of the board of directors must comply with specific gender diversity requirements.
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