ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
than those applicable in an SPA (Article 2475-ter Civil Code). In particular, in the event a director has a person - al interest in conflict with the company, a resolu - tion of the board of directors may be challenged by the other directors and auditor(s) if: • the vote of the relevant director in conflict was decisive for the quorum; and • the resolution causes financial damage to the company. Moreover, any contracts executed on behalf of the company by a director with an interest in conflict with the company (whether it is a per - sonal interest or an interest on behalf of another third party) may be annulled at the request of the company if the conflict was known or recognis - able by the counterparty. 4.6 Legal Duties of Directors/Officers The main legal duties of directors of an SPA pur - suant to the Italian Civil Code may be summa - rised as follows. • Duty of care – directors must fulfil their duties pursuant to applicable laws and by-laws with care, consistently with the nature of their office and their individual skills (Article 2392, paragraph 1, of the Civil Code). • Duty to act in an informed manner – direc - tors must base their decisions on adequate information and request that any necessary information be provided to the board of direc - tors (Article 2381, paragraph 6, of the Civil Code). • Duty to intervene – directors who become aware of potentially prejudicial facts must act to prevent or mitigate damages (Article 2392, paragraph 2, of the Civil Code).
• Duty of loyalty – directors must perform their duties with independence of judgement, directing their action to the pursuit of the company purpose • Duty of proper management – directors must ensure adherence to general business ration - ality and contribute to the implementation of an adequate organisational, administrative and accounting structure. In addition to the general duties applicable to all directors, 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 administra - tive and accounting structures are adequate considering its nature and size (Article 2381, paragraph 5, of the Civil Code). • Duty to inform – delegated executive direc - tors 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 transac - tions carried out by the company and its subsidiaries (Article 2381, paragraph 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). 4.7 Responsibility/Accountability of Directors Directors owe their duties primarily to the com - pany, 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).
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