12/15/2021

New rules for directors
Angelo Busani

The new provisions of the Italian Civil Code have been in force since yesterday, requiring candidates for appointment as members of the board of directors of a limited liability company (and companies that are preparing to make such an appointment), to precede such appointment "by the submission, by the person concerned, of a declaration that there are no causes of ineligibility against him as provided for in Article 2382 and no restrictions on the role of director adopted against him in a Member State of the European Union".
This new regulatory term is contained in the second paragraph of the first subparagraph of Article 2383(1) of the Civil Code, introduced by Article 6(2) of Legislative Decree No. 183 of 8 November 2021 (the same law that introduced the possibility of signing the deed of incorporation of Srls without the shareholders having to physically go to the notary's office: see Il Sole 24 Ore of 13 September and 5 November).
The causes of ineligibility (and removal from office) provided for in Article 2382 of the Civil Code, to which the new Article 2383 therefore refers, are interdiction, incapacity, bankruptcy (now called judicial liquidation) and conviction to a penalty that entails interdiction, even temporary, from public office or the inability to exercise executive offices. It is useful to recall that these causes of ineligibility and revocation have been expressly extended also to the Srl by Article 377, paragraph 4, of Legislative Decree No. 14 of 12 January 2019 (the Corporate Crisis Code); previously, in the absence of an express regulation, it was doubtful whether they, dictated for the Spa, also applied to the Srl.

From an operating point of view, before appointing directors, corporations must obtain a declaration of non-existence of causes of ineligibility: the law does not prescribe what form it must take, but it is inevitable that, for reasons of documentation, it must be in written form. Compared to the past, since the causes of ineligibility do not change but "only" the obligation to declare their non-existence is introduced, in the event of an untruthful declaration, one is in the presence of a false declaration. At the time of the company's memorandum of association, the existence of the declaration must be mentioned and, if the candidate director participates in it, the declaration may be directly documented in the memorandum itself; in the event of appointment during a shareholders' meeting, the chairman of the meeting must acknowledge to those present that he has acquired the declaration in question from the company's records.
It is, in other words, the same "rite" that is practised when electing auditors, having to certify (pursuant to the last paragraph of Article 2400 of the Civil Code) the positions of administration and control that they hold in other companies. In the event of a transformation of the company, the new rule must obviously be applied to the new directors who are appointed on that occasion; as for the directors who "continue" to be directors, since they were already members of the board before the transformation, it might be bold to consider that the continuity of their tenure allows the new rule to be considered inapplicable, since it is still a question of the appointment of a "new" board of directors, even if resulting from a transformation operation.

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