Company claim of directors’ liability and the individual shareholder’s claim

The title originates from a legislative comparison between the rules governing the liability of directors which are apparently very different in the two most common types of Italian legal entities. Indeed, it is well known that the legislator of the 2003’ reform, structuring limited liability companies’ (S.r.l.) directors liability, on the one hand, has exalted the personalistic nature of such type of small legal entity, giving the right to each shareholder to claim directors’ liability, but on the other hand, has not expressly provided, as well as provided for public limited liability companies (S.p.A.), the right of the company itself to claim directors’ liability.

It is also well known, that the common thread of the entire reform of the S.r.l. regulation has been the intention of the legislator to increase the power of the shareholders to structure the company governance, consequently, cutting the automatic link with S.p.A. regulation. Following this line of interpretation, on the one hand, the absence in the S.r.l. regulation of a specific article that provides the right of the company to claim directly the directors’ liability and, on the other, the dubious automatic application of article 2393 of the Italian Civil Code foreseen within S.p.A. regulation (as well as the entire S.p.A. regulation), are certainly the elements from which divergent opinions arose.

An initial case law interpretation, followed by courts which are particularly active in the field of corporate litigation, interpreted the lack of reference in the new S.r.l. regulation to the rule which legitimates the company to claim the directors’ responsibility not as a mere forgetfulness of the legislator, but rather as a specific political choice aimed at entrusting the protection of the interests of the company “to the widespread legitimation of each shareholder” (Trib. Milano, 27.02.08).

A different case law interpretation believed that also the S.r.l. has the right to directly claim its directors’ liability. Indeed, it is underlined that article 2393  of the Italian Civil Code (which provides the right of the S.p.A. to claim directors’ liability) is a general principle designed to protect the interests of the legal entity and, therefore, not influenced by the different social type. In this scenario, some judges ruled that if the company could not be able to sue its directors for liability, such a company would suffer an illegitimate compression of the constitutional right which provides that everyone shall have the right to defend its rights (Trib. Napoli, 08.02.2005).

Recently the Supreme Court has endorsed the second and less restrictive interpretation, providing that the company itself may be the plaintiff in a liability lawsuit against its directors in accordance with and pursuant to article 2476 of the Italian Civil Code (Supreme Court, no. 17493/2018). A few months later the Supreme Court also specified that “the substitute legitimation of the shareholder [to claim directors’ liability in the name and on behalf of the company] is an extraordinary legitimation which is cumulated with that of the holder of the right [n.d.r. the company] without removing it” (Supreme Court, no. 19745/2018). With the first above mentioned ruling the Supreme Court also highlighted the part of art. 2476 of the Italian Civil Code which expressly provides that the subject to whom the benefits of the victorious outcome of the directors’ liability claim flows into is the company and not the shareholder as plaintiff and also that subject legitimated to settle or renounce the claim is also the company and not the shareholder as plaintiff (in the event of a successful outcome of the claim, the company also reimburses the costs to the plaintiff). This interpretation also seems to be more consistent with the literal wording of article 2476 of the Italian Civil Code which disposes that “the directors are jointly liable vis à vis the company […]”.

The above mentioned Supreme Court decision was recently followed by the Court of Milan, which – changing the direction previously assumed – confirmed the legitimacy of a limited liability company to directly claim its directors’ liability (Trib. Milano, Company Section, no. 1508/2019).