The contribution by Niccolò Medica and Niccolò Ballerini was published in N&T Plus Diritto – Il Sole 24ORE.
The Supreme Court, with its recent judgment no. 11087 of 28 March 2022, ruled on the attribution of criminal liability to a single board member without delegated powers.
The Court of Cassation recalled the consolidating jurisprudence according to which, in the absence of specific delegations to individual board members of a company, joint and several liability for unlawful acts deliberated or committed by the Board of Directors must be deemed to rest on each of them.
In the case at hand, concerning a precautionary seizure ordered against a member of the Board of Directors of a joint-stock company, the appellant’s defense had emphasized that the crime under Article 2, Legislative Decree no. 74/2000 (registration and use of invoices for non-existent transactions) had been charged to a director without any delegation, solely by virtue of holding the position of board member. Therefore, the defense argued that, in the absence of a specific delegation, board members could not be held responsible for the conduct of others.
However, with the previous judgment no. 30689/2021, the Court of Cassation had already reiterated that, according to Article 2932 of the Civil Code, which regulates the position of guarantee of directors within joint-stock companies, they “are jointly and severally liable to the company for damages arising from the breach of duties imposed upon them by law or by the bylaws, unless these are matters of exclusive competence of the executive committee or specifically assigned to one or more of them, as specifically reaffirmed for the board of directors by Article 2381 of the Civil Code, paragraph 2“.
It is therefore necessary to distinguish between the case in which the Board of Directors operates with or without delegations to board members or to the executive committee.
In the first case, that is, where specific matters have been assigned to one or more directors, unlawful acts committed affect only the liability of the board members to whom such matters are delegated. However, the delegating director retains an obligation to supervise the effective and proper performance of the delegated functions, although there is no duty of analytical control over the delegated director’s conduct. The violation of such obligation results in the loss of the exculpatory effect of the delegation. In fact, non-delegated directors are criminally liable for the crime committed by the delegated director if – being aware, or having been able to become aware through their power/duty to request information on the company’s management, of the commission of the unlawful conduct – they have not taken action to prevent it (as per Cass. 33856/2021 and Cass. 23838/2007).
In the second case, instead, where the Board of Directors performs its functions in the absence of delegations to any of the board members or to the executive committee, all members of the Board of Directors are liable for unlawful acts deliberated by the board itself even if not decided or committed by all its members.
Therefore, the Court emphasizes that “there is no doubt that the 2003 reform has reduced the burdens and liabilities of non-delegated directors, who are liable to the company only within the limits of their own attributions as established by the regulatory framework, removing the general obligation to supervise the overall management (already contemplated by Article 2932 of the Civil Code, paragraph 2) and replacing it with the duty to act on an informed basis, given the obligation, in the context of informed management, to obtain information as provided for by Article 2381 of the Civil Code accompanied by the power to request further information (cf. Cass. civ., Unified Sections, judgment no. 20933 of 30/09/2009, RV 610513), but these are provisions applicable in the presence of matters delegated to the executive committee or to one or more board members“.
In conclusion, therefore, in the absence of delegations to any of the members of the Board of Directors, joint and several liability for unlawful acts deliberated or committed by the Board of Directors must be deemed to rest on all board members, as recalled by the prevailing jurisprudence of the Supreme Court.
