1. Liability of directors – 1.1. Introduction – 1.2. Civil directors’ liability – (a) Liability towards the company – (b) Liability towards creditors of the company – (c) Liability towards company’s shareholders and third parties – (d) Legitimacy to bring actions against the directors – (e) De facto or shadow directors – (f) Liabilities of Managing Directors (“Direttori generali”) – 2. Shareholders’ liability – 2.1 Introduction – 2.2. Direction and coordination of companies within groups – (a) Notion of direction and coordination – (b) Assessment of direction and coordination activity – (c) Damages – (d) Duty of disclosure
1. Liability of directors
Under Italian Law, the management of a company limited by shares (“società per azioni” or “S.p.A.”) can be entrusted to one person or to more directors, who compose the board of directors, chaired by a chairman. Directors are in charge of carrying out all the activities necessary for the achievement of the corporate purpose.
On the whole, directors must carry out the duties established by the law and by the by-laws with the appropriate care (duty of care), depending of the kind of task and on their specific skills and competences. Directors are jointly and severally liable to the company for damages caused by the failure to comply with their duties, except for functions vested solely in the executive committee or in one or more directors.
In any case, as a general remark, it should be underlined that the assessment of whether directors acted with the appropriate standard of care requires a case-by-case analysis. Moreover, the directors do not owe to the company any duty to perform the business successfully. It will be ascertain only whether, at the time the management decision was taken, the directors acted in a sound manner (so-called “Business Judgment Rule”).