ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
4.5 Rules/Requirements Concerning Independence of Directors Italian corporate law does not require compa - nies to appoint independent directors, except for listed companies and entities subject to sector laws (eg, banks, financial institutions), as indicated above ( 1.3 Corporate Governance Requirements for Companies With Publicly Traded Shares ). It bears highlighting that an SPA is required to appoint a board of statutory audi - tors, which has a control function and whose members must be independent. There are rules and requirements under general Italian corporate law designed to regulate situ - ations of potential conflicts of interests, as indi - cated below. SPA Italian corporate law prohibits directors of an SPA from engaging in activities that compete with the company. In particular, directors may not act as unlimited liability partners in compet - ing firms, undertake competing activities on their own or on behalf of others, or serve as directors or general managers of competing companies, unless expressly authorised by the shareholder meeting (Article 2390 of the Civil Code). This authorisation may be general, prior, or implicit in the appointment resolution. A breach of this prohibition exposes a director to dismissal and liability for damages. Directors and members of supervisory boards of companies operating in the credit, financial and insurance sectors are also subject to an “interlocking ban” (Article 36 of Law Decree 201/2011), that limits their right to hold man - agement, supervisory or top executive roles in competing firms.
Italian corporate law also requires directors to disclose any personal interest, whether direct or on behalf of third parties, in transactions undertaken by the company to the other direc - tors and statutory auditors (Article 2391 of the Civil Code). This obligation applies even if the relevant interest is not in conflict with the com - pany (eg, if the company and the director have a concurring interest in a transaction). An “interested” director must disclose the nature, terms, origin and extent of the interest. Once a personal interest is disclosed, the relevant direc - tor is not required to abstain from voting on the matter. Instead, the board is required to justify the transaction thoroughly, explaining its ben - efits. A duty to abstain exists for directors of an SPA operating in specific sectors (eg, banks and financial institutions), if they hold an interest that conflicts with the interest of the company. If the CEO holds a personal interest, they must abstain from executing the transaction. If the company is managed by a sole director, they must disclose their interest to the share - holder meeting. The board is collectively liable if a resolution lacks proper reasoning or fails to consider potential consequences and the “interested” director may be individually liable for any dam - age resulting from failure to disclose its interest. Directors may also be liable if they misappropri - ate corporate opportunities or confidential infor - mation learned through their role (Article 2391, paragraph 5, Civil Code). SRL The rules under Italian corporate law on conflict of interests of directors in an SRL are less strict
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