Liability of Board Members in the Event of Criminal Offences

In Judgment No. 11087 of 4 February 2022, filed on 28 March 2022, the Third Criminal Section of the Italian Supreme Court (Corte di Cassazione) affirmed the important principle that, where no specific powers have been delegated to one or more members of the Board of Directors (as permitted under Article 2381, paragraph 2, of the Italian Civil Code), all directors shall be jointly liable towards the company for damages arising from breaches of duties imposed by law or by the company’s articles of association.

A distinction must therefore be made between situations in which the Board of Directors operates with delegated powers and those in which it does not.

In the first case, liability for violations will generally rest solely with the directors holding delegated powers. In the second case, all members of the Board of Directors may be held liable for unlawful acts resolved by the board, even where such acts were not directly carried out by all directors, unless the exemption mechanism provided for under Article 2392, paragraph 3, of the Italian Civil Code applies.

For further information, please contact Elena Imi at: e.imi@bmv-ltf.com