ITALY Law and Practice Contributed by: Francesco Di Carlo and Flavio Acerbi, FIVERS Studio Legale e Tributario
The by-laws of a company may also require directors to pursue the interest of other stake - holders, including employees, clients, suppliers, creditors, public administration and society in general (ie, so-called società benefit ). It bears noting that according to the Code of Corporate Governance, a listed SPA should pur - sue “sustainable success” , aiming at creating long-term value for the benefit of the sharehold - ers, “taking into account the interests of other stakeholders relevant to the company” . 4.8 Consequences and Enforcement of Breach of Directors’ Duties Under Italian law, the rules regarding the enforce - ment of directors’ duties and claims for damages differ depending on the corporate form. SPA The directors are liable for damages against the company, 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, pursuant 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, initiated 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 credi - tors (if the ability of the company to pay its debts has been infringed); and • 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 initi - ated by the officer 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 credi - tors (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 as, in case of insolvency, by the officer responsible for the relevant insolvency proceeding. Parent Companies Where a company – either an SPA or SRL – con - trols and exercises direction and co-ordination over another company and there is a breach of the “principles of proper corporate and business management” , the directors of the parent com -
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