All Directors Have The Same Duties: Not Really (Anymore)
The Legislative Decree No. 6/2003 significantly and positively innovates in the area of Directors' duties and liabilities in particular about the works of the Board of Directors.
The old corporate rules in force prior until the aforesaid Legislative Decree described the duties and liabilities of Directors in general terms (e.g., duty of loyalty, duty of care, duty of supervision). The courts' interpretation of the duty of supervision caused all Directors, including non-executive Directors, to be held jointly and severally liable due to what was characterized as "failure to supervise."
Instead, the new corporate rules:
- describe more clearly the duties and liabilities of all
Directors, indicating specific duties and tasks;
- specify the respective duties and tasks of executive and
- restrict appropriately the scenarios when a Director can
be held accountable for actions (or omissions) of other
Directors providing new rules about the Director's
liability and differentiating between executive and non
– executive Directors.
Duty Of Disclosure
Directors in Italian companies are subject to an encompassing "duty of information," which is operating on two levels, as a duty either to provide information (in the case of executive Directors) or to request information (for non-executive Directors). This "duty of information" is specifically expressed in a generally applicable statement: "Directors must act in an informed manner."
We will describe below how this encompassing duty of information characterizes: (a) the role of the Chairman of the Board; (b) the executive Directors reporting duties; (c) the non-executive Directors duty to solicit information from the executive Directors; (d) the duty to seek professional advice, when appropriate; (e) all Directors' duty to disclose interest in a transaction.
The Chairman's Office
In the past, a Chairman should only call and supervise Board meetings, making it a times almost only an honorary position. The Chairman of the Board's duties are now instead specifically listed by the law, making him/her a much more central and active figure in the management of a corporation specially because Italian law does not provide for the separation of the offices between Chairman of the Board's and Chief Executive Officer.
Calling and presiding over Board meetings is still by default entrusted to the Chairman (by a specific provision to this effect in force since 2004). However, now, much more importantly, the Chairman shall have the duty (and the related authority) to ensure that adequate information is provided to the other Directors in connection with the agenda items of Board meetings.
The Chairman is as a consequence now statutorily bound to arrange for the preparation, collection and distribution of appropriate reports and documentation.
In practical terms, a Chairman, depending on the circumstances, should, among other things, carry out these tasks:
- solicit executive Directors to prepare appropriate
documentation regarding the items on the agenda and to
distribute same prior to the meeting, if appropriate;
- not allow resolutions on an agenda item without the Board
having been sufficiently informed;
- ensure that minutes of Board meetings appropriately
reflect the existence and distribution of any documentation
(e.g., "the Chairman distributed a report on ...
prepared by ..."); and
- attach such information/documentation to the meeting
minutes, when appropriate.
In deciding whether and to what extent to exercise such "duty to collect information," a Chairman should look at several factors: (a) the complexity of the matter at issue; (b) its potential effects on the business (e.g., a bet-your-company litigation); (c) the specific knowledge of each Director in connection with the matter; (d) whether immediate action is required; etc.
The Duties Of The Executive Directors
The 2004 corporate rules also innovated in the relationship between executive and non-executive directors and their respective duties, tasks, and liabilities. Thanks to these new principles, Directors, in their respective roles, have been able to operate under clearer guidelines. In fact now we have a clear distinction between executive or non – executive Directors.
To clarify the role of executive Directors, the new corporate rules take a two prong approach: (a) they introduce a list of tasks to be carried out by executive Directors; and (b) establish a new "reporting duty "based on a full disclosure.
In this respect, although the tasks' list could have been deemed rather "obvious," it represented a significant improvement nonetheless since executive Directors now are able to refer to such list as a minimum standard. In other words, an executive Director not properly carrying out these tasks will be held almost automatically liable for breach of his/her duties.
As to the actual content of the list, an executive Director's statutorily tasks will be to:
- set up an operational, administrative, and accounting
structure adequate to the nature and size of the
- prepare the business' strategic, industrial, and
monitor the ongoing and possible future development of the business.
Executive Director's Information
More importantly, executive Directors must now specifically report to the Board (a) on their performance of these tasks; and (b) on the most relevant transactions (for their features or size) regarding their company or its subsidiaries. The new corporate rules require executive Directors to make such reports at least every 6 months (or more often if so required by the by-laws). In this way you should note that the board must meet at least each 6 months.
The Board as a whole, in turn, will be responsible for analyzing the information provided by the executive Directors and, if appropriate based on the information received, the Board must take corrective measures.
The Reporting System
In the future, therefore, the executive/non-executive Director relationship will be based on the setting up, under the responsibility of all Directors, of an appropriate reporting system.
Executive Directors, in this new scenario, will no longer be allowed to operate entirely independently of their Boards (within the limits of the authority granted to them) and will instead have to make a positive effort to periodically provide the Board with information on the business. At the same time, in our opinion, this reporting system will not hinder the efficient management of a corporation, since executive Directors will retain their authority and power, and will instead only be subject to clearer reporting and supervision duties. In fact the Board can always to take it upon itself the proxy given to the executive – directors.
Non-Executive Directors' Behavior
The Board fixes content, limits and modalities, if any, for the exercise of the powers to executive directors. The Board may always give directives to the executive Directors and bring back to the Board transactions falling within the delegation. In this way the powers delegated to the executives are always keeping by the Board.
From a non-executive Director's point of view, all the above means that a non-executive Director must:
- carefully check that the executive Directors'
reports are given timely and contain all mandatory
- carefully examine and assess the information provided by
the executive Directors;
- solicit additional information when appropriate;
- require that the Chairman and the executive Directors
provide adequate information and documentation (and adequate
time to review it) on any resolution proposed;
- object to (and vote against) resolutions, if he/she
believes not to have sufficient information (or not enough
time to review it);
- propose adequate corrective measures, based on
the information received,
The New Liability Of Non-Executive Directors
In this respect, it must be stressed that the role of non-executive Directors has been completely changed since 2004. Thanks to the 2004 corporate rules is it finally possible to clearly differentiate between executive and non-executive Directors.
Under the old corporate rules executive and non-executive Directors were bound by the same duties and therefore non-executive Directors were held liable in the same manner and degree as executive Directors. In the past there was an objective liability of the non – executive Directors.
Since 2004, instead, the new corporate rules expressly state that Directors will be liable "depending on the nature of the office."
This is a clear acknowledgement that the duties, role and liabilities of a Managing Director, for example, cannot be identical to those of any other Director.
As a consequence, while the Managing Director will remain liable for the management of (or failure to manage) the company, non-executive Directors will be liable if they (a) do not solicit or collect information from the executive Directors; or (b) do not take any corrective measure, when such measures should be taken based on the information provided by the executive Directors. In other words, non-executive Directors will not be liable if they have relied in good faith on the information provided by the executive Directors. Now, there is the liability of non – executives Directors only for the infringement of specific duties provided by the law.
Benefits Of Reporting System
In light of all the above, although the reporting system described above imposes a partially new burden, its benefits in our opinion significantly outweigh its disadvantages. The reporting system will be beneficial since it will involve the Board as a whole in the supervision of the management and will help reduce the areas of uncertainty regarding the liability of both executive and non-executive Directors: (a) executive Directors, on the one hand, will benefit from the input from the Board; (b) non-executive Directors will be able to monitor closely the actions of executive Directors and to take any appropriate corrective action.
Boards Should Use Extensively
In light of these principles, we are of the opinion that Boards should make extensive use of such a reporting system, possibly beyond what is statutorily required. In larger companies and/or companies with several shareholders, the Board should consider setting up specific reporting guidelines and in particular the Board could require reports to be made more often than as required by the law (6 months). In any event, executive Directors should report timely to the Board any significant event affecting the company in order to prevent any damage for the company.
From a practical point of view, such reports should be preferably made in writing and circulated in a more or less formal way. We would suggest that, as a minimum, the statutorily required half-year report be formally circulated and discussed in an ad hoc Board meeting and attached to the relevant minutes. Such report should be drafted with care so as to adequately describe all relevant information.
Directors No Superhumans
As indicated above, the new corporate rules graduate a Director's liability based on " the diligence required by the nature of the office and [his/her] specific competences."
This means that a Director will no longer be "presumed" to be, and judged as, an expert on all possible aspects of a company's operation (e.g., corporate, legal, financial, accounting, tax, industrial, human resources). In this way, the law considers the different professionalism between the directors, considering also the business of the company and its size.
By way of example, a physician holding a non-executive directorship in a health care company will not be assumed to understand in the same manner complex amortization issues on the one hand and patient treatment protocols on the other.
Duty To Seek Professional Advice
As a consequence of this acknowledgment that a Director is no longer supposed to know everything, and given that a Director will still be under a duty to act "in an informed manner," Boards and Directors should now be deemed under a stricter duty to seek specific professional advice in certain circumstances to supplement their lack of specific, in-depth knowledge of a certain matter.
Interest Of Directors
In the area of conflicts of interest, a Director bearing (personally or on behalf of third parties) an interest in a certain resolution or transaction must disclose all details (nature, terms, origin and relevance) of such interest to the Board and to the Audit Commette. If it is an executive Director's interest, then he/she must abstain from the transaction and must submit the matter to the Board. If it is a sole director he must report to the first useful shareholders meeting.
Consistently with the transparency leit-motive, Directors must disclose not only conflicting interest but all interest. In other words, also interests coinciding with those of the company or favorable for the company must be disclosed. By way of example, if a company is about to lease real estate from one of its Directors, such Director must make an appropriate disclosure to the Board even if the transaction is at an extremely low rent.
The Duty Of Motivation
Following the disclosure by the interested Director, the Board, to approve the transaction at issue, must adequately explain the "reasons and benefits to the company" of the transaction. If a Director believes the transaction is not beneficial to the company, he/she must expressly motivate, and record in the minutes or elsewhere, his/her dissent.
From a practical point of view, in certain circumstances, a Director bearing an interest in a certain transaction should consider providing such information in writing and in advance. The Board has the duty to ask for any additional information and to adequately discuss the transaction in question. In light of this, Board meeting minutes will be more complex then before. The minutes will need to comply with all the formal requirements under the new corporate rules and, among other things, specifically describe: (a) detailed information regarding any Director's interest; (b) adequate discussion and motivation for approving the transaction; (c) any dissenting opinions; etc.
It must be stressed that a Director bearing an interest in a transaction will not avoid his/her liability by simply abstaining. The only means to avoid liability is appropriate disclosure.
If, however, a Director bears an interest in a transaction and has not disclosed such interest, he/she will be liable only to the extent that the transaction has damaged the company. The breach of the duty of disclosure, therefore, should not in itself trigger the immediate liability of the non-disclosing Director.
Corporate Opportunity Doctrine
The new corporate rules also apply the "corporate opportunity theory". It is expressly stated now that "a Directors is liable for the damages caused to the company by the utilization, to third parties' or his/her own benefit, of data, information, or business opportunities acquired in the discharge of his/her office." Although it is not expressly indicated, we are of the opinion that this principle applies while the Director is holding office and also following termination of his/her office.
It is not clear at this point what will be the scope of application of this general statement and where courts will draw the line between legal and illegal behaviors. We suggest the following issues for reflection:
- not all "business opportunities" should involve
application of the corporate opportunity but only those
related to the business in which the company operates;
- "data and information" provided by the law are
these related to specific information and data of company. By
way of example, a secret formula or an innovative pricing
model should be deemed protected;
- to what extent a Director can take advantage of a
business opportunity if he/she has disclosed it to the Board
and the Board has rejected it. In our opinion a Director
should be entitled to disclose a corporate opportunity and
then, if the Board rejects it, to pursue it. If however the
corporate opportunity is in competition with the company, the
Director may be prevented from pursuing it in light of
his/her general non-competition obligation;
- the length of time, following termination of the
Director's office, during which a Director is
prevented from using the "data, information, and
In this respect, the restriction of a Director's freedom will need to be determined taking into account the actual circumstances. The time window could be as long as to allow that the use of the data, information or corporate opportunity is either (a) no longer of interest to the company (pro-company approach) or (b) no longer damaging to the company (pro-Director approach). In most cases, probably, the time window should range from a few months to a couple of years.
As a consequence of all the above, based on the new rules, in the future the liability of a Director should mainly derive from a positive breach of a specific duty (e.g., duty to give a full disclosure to the Board, for an executive Director; duty to require information, for a non-executive Director; duty to act in an informed manner; duty to disclose interests in a transactions; duty of loyalty, etc.).
However, a Director will still be liable, not surprisingly, if he/she is aware of circumstances damaging the company and has not acted to prevent them or to reduce their damaging impact.
The Courts cannot judge the merits of Directors' conduct in application of the business judgment rule, so they can only examine the followed decisional course and the respect of duties by the Directors.
In conclusion, we believe that the "information system" required now by Italian law is a good provision in order to improve the operation of the Board of Directors because in this way there is a clear differentiation between duties and liability of the executive Directors and duties and liability of non – executive Directors. This system requires a more "formal" approach to the relationship between executive and non-executive Directors. Board meeting minutes need to appropriately reflect all information required by the law (e.g., circulation of reports, detailed disclosure of interests) and in certain cases certain information will need to be exchanged in writing.
Correct adoption of such more formal approach, however, allows more clearly identifying and allocating Directors' duties and liabilities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.