Liability of the director of a company belonging to a group

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Civil Cassation, section I, March 3, 2021 - sentence no. 5795

The Court of Cassation has clarified that it is not exempt from liability the director who is in fact extraneous to the management of the company, even if the company belongs to a group of companies.

The Court examined the issue from two standpoints.

First of all, it confirmed the prevailing jurisprudential orientation, according to which the circumstance that the director of a company has remained extraneous to its management is not sufficient to exclude liability, “the acceptance of the office of director involves in fact the assumption of a general duty to supervise the progress of the company“, and a simultaneous duty to take action in order to block the performance of detrimental acts, according to the precise duties of supervision in line with the office held.

Secondly, it has specifically expressed itself about the responsibility of directors in cases where the company belongs to a group. The absence of an agreement between the various entities of the group, with the aim of creating a single company – with unitary management and common assets – does not exclude the responsibility of directors. The latter are required to carry out their duties individually and their duty to supervise management performance, for which they will be liable if they fail to do so. The group, although oriented towards an organic and de facto shared aim, is not capable of determining a new legal subject (and, consequently, a new center of imputation of relations), with the effect that each of the affiliated companies maintains its own distinct legal personality.

The ruling represents a contribution to the discussion concerning the liability of managers of corporate groups. It often happens, in fact, that certain acts or certain decisions are taken – in accordance with the group’s policy – directly by the director of the parent company or by another internal person and that the management remains effectively excluded from the management of the company. According to the ruling in question, this circumstance does not, however, exempt the directors from liability in the event of their culpable omission of supervisory duties aimed at preserving the integrity of the company’s assets.

Attached is the sentence.

Fabiano Belluzzi