Directors of S.p.A. and S.r.l. companies: duties and liability in light of Legislative Decree 47/2026

Legislative Decree No. 47 of 27 March 2026, which entered into force on 29 April 2026, makes extensive changes to Italian corporate governance: the rules governing how companies are managed and supervised. The decree implements the so-called Capital Markets Law (Legge Capitali), but it would be wrong to regard it as legislation intended only for listed companies: Article 9 substantially reorganised the Civil Code provisions on the management and supervision of Italian joint-stock companies, addressing directors' duties, delegated powers, information flows, conflicts of interest and relations with supervisory bodies. For directors, however, the most interesting change is not the introduction of an entirely new form of liability. Many principles already existed. The reform makes them more explicit and builds a more orderly framework around them: directing a company means not only deciding individual transactions, but organising the business, establishing adequate structures, obtaining sufficient information, overseeing delegated powers and intervening when potentially harmful circumstances emerge. This approach materially changes how the director's role should be understood in 2026.

One clarification is essential from the outset: the reform directly affects primarily the rules governing S.p.A. companies. For S.r.l. companies, Articles 2475 and 2476 of the Civil Code remain central, and the decree has left some coordination problems with the new S.p.A. provisions. The Italian National Council of Notaries itself has highlighted that certain cross-references in the S.r.l. rules were not updated after the provisions were renumbered. Discussing S.p.A. and S.r.l. companies indiscriminately, without this distinction, would therefore be technically incorrect.

The starting point: managing also means organising

The new framework gives directors a central role not only in managing corporate transactions but also in organising the business. The new Article 2380-bis of the Civil Code expressly states that managing and organising the business are directors' responsibilities, including establishing its organisational, administrative and accounting structures. The connection with Article 2086, second paragraph, of the Civil Code is clear. A business operating in corporate form must establish structures appropriate to its nature and size, including for the timely detection of financial distress and the loss of the ability to continue as a going concern. It is therefore insufficient merely to keep formal accounting records or convene the board when the financial statements need approval: the organisation must enable those managing it to know, within a reasonably short time, what is happening in the business.

In practice, adequate structures may include administrative systems capable of producing reliable information, internal procedures proportionate to the company's size, proper allocation of responsibilities, monitoring of the financial position, control systems and information flows to corporate bodies. Naturally, there is no single model for every business: what is adequate for a small family company would probably be insufficient for an industrial company with hundreds of employees, subsidiaries and substantial bank financing. This is where directors' liability takes on an organisational dimension. Poor business results do not automatically give rise to liability; failing to establish a system capable of identifying and managing risks may, however, constitute a separate breach of management duties.

In an S.p.A., management remains the directors' responsibility even where powers are delegated

In more structured companies, it is normal for the board not to handle every transaction directly. Some functions may be entrusted to an executive committee or one or more managing directors. The new Article 2381-bis of the Civil Code specifically regulates the relationship between the board and those exercising delegated powers. The board determines the content, limits and any conditions governing those powers, may issue directions and may always take back responsibility for transactions covered by the delegation. Delegation therefore distributes functions without making non-executive directors entirely detached from management. Those exercising delegated powers carry out the operational management entrusted to them and are responsible for the organisational, administrative and accounting structures, while the board assesses their adequacy based on the information received. The board also examines strategic, business and financial plans, where prepared, and assesses the general course of management. The system thus establishes an important distinction: those with delegated powers must manage and inform; those without them must assess and respond to the information received.

Not everything can be delegated. Various transactions expressly identified in the Civil Code remain within the board's collective remit, including those relating to preparation of the financial statements, certain capital transactions, and merger and demerger plans. Particularly important is the provision prohibiting delegation of decisions to access financial distress and insolvency resolution tools, including determination of the proposal's content and the plan's terms. When a crisis arises, therefore, the board cannot simply treat it as the managing director's problem.

Acting on an informed basis becomes central to the director's role

One of the reform's most significant provisions is the new Article 2381-ter of the Civil Code, expressly devoted to board information. It establishes a simple but important principle: directors must act on an informed basis. The chair must ensure that all directors receive adequate information on agenda items, while each director may ask those exercising delegated powers to provide management information to the board. At the same time, the reform expressly recognises that directors without delegated powers may place reasonable reliance, also taking account of their particular expertise, on information received in accordance with the law and the articles of association. This is an important balance. On the one hand, expecting every director to reconstruct all company data independently would be unrealistic; on the other, simply sitting at the board table and voting on incomplete documents without asking questions is not enough.

Imagine that the board must approve an investment of 8 million euros. If the documentation contains no information on cash flows, the necessary borrowing, the main risks or the project's economic assumptions, a director should not simply vote while placing general trust in the managing director. The duty is to request whatever is reasonably needed to make an informed decision. This does not mean directors must predict the future. It means they must be able to demonstrate that the decision was taken through a sufficiently informed process.

A negative outcome does not automatically mean liability

This point is fundamental because liability and poor economic performance are often confused. A director may approve a perfectly reasonable investment that produces a loss a few years later, decide to enter a new market that subsequently contracts, or purchase machinery that becomes less economically attractive because of an unforeseeable technological change. Company law cannot turn directors into insurers of business success. Business activity necessarily entails risk. Liability instead arises where there is a breach of directors' duties, damage, and a causal link between the breach and the damage. An unsuccessful business decision therefore does not automatically amount to mismanagement (mala gestio). Assessment tends instead to focus on the soundness of the decision-making process: available information, any conflicts of interest, adequate preparatory investigation, and the reasonableness of the decision when it was made. The 2026 reform reinforces precisely this central importance of information and organisation.

A managing director does not automatically release the other directors from responsibility

The new system makes it even more important to avoid a common misconception: “There is a managing director, so the others cannot be held liable.” Article 2392 of the Civil Code continues to require directors to discharge their duties with the diligence called for by the nature of their appointment and their particular expertise. Joint and several liability is excluded in principle for functions belonging to the executive committee or specifically entrusted to one or more directors; however, the same provision states that the other directors may still be liable if, knowing of harmful circumstances, they failed to do what they could to prevent the harmful acts or eliminate or mitigate their consequences. The new text expressly coordinates this liability with Articles 2381-bis and 2381-ter.

Suppose the managing director undertakes a seriously damaging transaction. If the board had no information, and could not reasonably have obtained information, revealing the problem, the position of the non-executive directors will be different. If, however, the minutes show repeated warning signs, requests from auditors, financial pressures or unusual transactions, and the other directors do nothing, delegation is unlikely to provide an absolute shield. Delegation changes the content of duties, but does not remove the duty to act on an informed basis and intervene when the legal conditions are met.

Dissent must be genuine and documented

Here too, the rules are practical. Article 2392 provides that liability does not extend to a director free from fault who has had their dissent recorded without delay in the book of board meetings and resolutions, immediately notifying the chair of the supervisory body in writing. Merely thinking a decision is wrong or expressing disagreement informally is therefore insufficient. Where a matter is sufficiently serious, the director's position must be evident from corporate records. This gives board minutes importance well beyond formal compliance: they also provide a documentary record of what information was available, what observations were made and who took particular positions.

Conflicts of interest: saying “everyone knew” is not enough

Legislative Decree 47/2026 also rewrote Article 2391 of the Civil Code. A director with an interest, whether personal or on behalf of a third party, in a particular transaction must disclose it to the other directors and the supervisory body, specifying its nature, terms, origin and extent. A managing director must refrain from personally carrying out the transaction and refer it to the collective body; a sole director must also disclose it at the next available shareholders' meeting. When deciding on the transaction, the board must adequately explain the reasons for it and its benefit to the company. Imagine that a director is also a shareholder in a company selling a property to the company they manage. Arguing that the other directors generally knew about the shareholding would not suffice. The rules require sufficiently precise disclosure of the interest in that particular transaction. The underlying principle is clear: companies are not absolutely prohibited from entering transactions in which a director has an interest, but the decision-making process must be transparent and show why the transaction remains beneficial to the company.

A stricter prohibition on competition too

The new Article 2390 of the Civil Code broadens the prohibition on competition. Directors may not be partners with unlimited liability in competing companies, conduct competing business on their own or others' behalf, or hold certain roles in competing businesses; the reform expressly includes key management personnel and requires specific authorisation from the shareholders' meeting. The word “specific” matters. A general clause giving advance permission to conduct any competing activity should not be treated as equivalent to an informed assessment of the particular competitive position. A breach may result in removal of the director and liability for any damage.

The new rule on using information and business opportunities

Among the clearest innovations is the new Article 2390-bis of the Civil Code. It states that directors may not use, for their own or third parties' benefit, data, information or business opportunities learned of while performing their duties. A breach may lead to removal and liability for damages. Consider a director who, through their position, learns of an opportunity for the company to buy strategically important land, but instead arranges for a company they personally own to acquire it. The problem is not merely using confidential information: the director has taken away an opportunity discovered precisely because of their role. The reform makes a principle previously emerging mainly from the rules on directors' interests into a standalone provision. The message is clear: information obtained in the exercise of the role is not the director's personal property.

Liability to the company

The first form of liability is towards the company itself. Article 2392 of the Civil Code requires directors to perform their statutory and constitutional duties with the diligence required by the nature of the appointment and their particular expertise. If a breach causes damage, directors may be required to compensate it. The framework can be represented simply: Breach of a duty → damage to the company → causal link → liability. Imagine directors purchasing equipment from a company connected to one of them for 2 million when its actual value is 1.2 million. If the breach of duties, conflict and damage are proven, the company may seek compensation for its loss. Merely showing in general terms that “the director managed badly” is insufficient. The alleged conduct and the resulting harm must be identified.

Liability to company creditors

Directors may also be liable to the company's creditors. Article 2394 of the Civil Code links this liability to breaches of duties to preserve the integrity of the company's assets where those assets are insufficient to satisfy creditors. This highlights a concept of particular importance when a business encounters difficulties: duties to preserve assets also apply while the company is healthy; insufficiency of assets makes the creditors' action under Article 2394 available. Value-destroying management can therefore undermine the assets on which creditors rely. For this reason, directors' responsibility becomes more acute particularly in periods of distress, loss of capital and approaching insolvency.

What happens when the company enters a crisis?

Article 2086 of the Civil Code requires structures capable of detecting financial distress and the loss of the ability to continue as a going concern promptly, and activation without delay of the tools provided by law. Legislative Decree 47/2026 strengthens the link between organisation and crisis management by providing, as discussed, that decisions to access financial distress and insolvency resolution tools cannot be delegated. Article 2486 of the Civil Code also applies when a ground for dissolution arises. From that point, directors must manage the company with a view to preserving the integrity and value of its assets. Continuing to operate is not automatically prohibited, but must be consistent with this preservation objective. This is precisely where liability actions for worsening financial distress become particularly relevant.

Liability to individual shareholders or third parties

There is also a third dimension of liability. Where a director's intentional or negligent conduct causes direct damage to the assets of an individual shareholder or third party, rather than merely an indirect loss resulting from damage to the company, the individual action under Article 2395 of the Civil Code may apply. The distinction matters. If a director causes a loss of 1 million to the company and the value of shareholdings consequently decreases, the shareholder's loss normally derives from the company's loss. If, instead, a director directly supplies false information to an investor, personally inducing that investor to enter a harmful transaction, direct damage may arise. Not every shareholder loss therefore automatically gives rise to an individual action against a director.

What about S.r.l. companies?

The S.r.l. requires separate consideration. Its fundamental rules remain in Articles 2475 and 2476 of the Civil Code. Here too, management belongs to the directors, and the duty to establish the structures required by Article 2086 remains central. Regarding liability, Article 2476 makes directors jointly and severally liable to the company for damage resulting from breaches of duties imposed by law and the incorporation document. A director can escape liability by proving freedom from fault and, where aware of an act about to be carried out, having placed their dissent on record. The S.r.l. rules also contain a particularly significant feature: members who do not participate in management are entitled to information from directors about company affairs and to inspect corporate books and management documents, including through trusted professionals. This is a very broad oversight power. Article 2476 also contains a provision that must not be underestimated: members who intentionally decided upon or authorised harmful acts against the company, its members or third parties may be jointly and severally liable alongside directors.

Being a member therefore does not always provide a shield when that member knowingly participates in harmful management decisions.

The issue Legislative Decree 47/2026 left unresolved for S.r.l. companies

Particular precision is needed here. The decree reorganised the S.p.A. rules, distributing the former provisions of Article 2381 across several articles. Article 2381 now focuses on the chair of the management body, while delegated powers and board information are governed by Articles 2381-bis and 2381-ter respectively. Article 2475, however, continues to refer only to Article 2381 for S.r.l. companies. This creates a problem because that reference was drafted when Article 2381 also contained the rules now moved into the subsequent articles. Article 2477 also continues to refer to Article 2409, which the reform repealed, relocating its provisions to the new Article 2396-quater. The National Council of Notaries has expressly highlighted these anomalies and the need to address them through interpretation or future corrective legislation. As of 13 October 2026, the process of correcting the reform also remains open: the Ministry of Economy and Finance has launched a consultation ahead of further supplementary and corrective measures, requesting contributions by 26 October.

For this reason, it would be wrong simply to write that all the new provisions of Articles 2381-bis and 2381-ter “automatically apply to S.r.l. companies”. The issue is more complex and must be assessed in light of the individual company's structure, its articles of association and a systematic interpretation of the rules.

An example: a board with delegated powers

Imagine an industrial company managed by five directors. One is the managing director and runs the business operationally. The company begins losing customers, inventory grows rapidly and cash decreases. Monthly reports also show a sharp increase in bank borrowing. Saying that responsibility automatically falls solely on the managing director would be too simplistic. The managing director certainly has a duty to maintain the structures and inform the board. Once information reaches the other directors, however, they too must assess it. If a potentially serious situation emerges, they must seek clarification, assess the adequacy of remedial action and, where necessary, issue directions or take back particular decisions. If instead the board receives unequivocal information for months and continues merely recording that it has “taken note”, without further examination, the issue extends beyond what the managing director did. What the other directors could and should have done with knowledge of the situation also becomes relevant. This is one of the most practical effects of the model established by the reform.

Directors must also document the decision-making process

The practical consequence of the new framework is that good governance cannot consist solely of sound decisions: it must leave a verifiable record of the process through which those decisions were made. A well-organised board should therefore allow reconstruction of:

• what information was provided before the decision;
• what risks were identified;
• what questions directors asked;
• what personal interests were disclosed;
• what alternatives were considered;
• what reasons led to the resolution;
• any dissent and the reasons behind it.

This does not mean turning every set of minutes into a treatise. It means avoiding purely formal minutes that reveal nothing about the decision-making process. In litigation years later, the difference between “the board assessed the matter” and documentation of what was actually assessed can be enormous.

S.p.A. and S.r.l.: similar liability, but different rules

Some fundamental differences can be summarised.

The table shows why mechanically transferring all S.p.A. rules to S.r.l. companies is incorrect, even though many underlying principles are shared.

What actually changes for someone accepting a directorship today

Legislative Decree 47/2026 does not make directors personally liable for every corporate loss. That would be an excessive interpretation, incompatible with the nature of business itself. It does, however, make treating the appointment as a purely formal role even harder. A director must know how the business is organised, what powers have been delegated, what information they will receive, what controls are operating and what the principal business risks are. Directors must read board documents, seek information when what they receive is insufficient, disclose personal interests, respond to signs of distress and document dissent when they believe a decision may be harmful. The mistake is therefore to think that liability begins only when a director signs an ill-advised contract. Under the system established by the reform, liability may arise much earlier: when the business is inadequately organised, when information is not requested, when warning signs are ignored or when management functions are exercised without a sufficiently informed decision-making process.

A reform shifting attention from individual transactions to the governance system

This is probably the most important underlying theme of Legislative Decree 47/2026. The legislature does not merely ask directors to avoid manifestly unlawful conduct. It establishes a governance framework centred on organisation, information, allocation of responsibilities and the ability to respond. An effective board is therefore not one that meets only to approve decisions already taken elsewhere. It must be a body capable of receiving information, assessing it critically and intervening when necessary. The principle can be summarised as follows: delegating does not mean disengaging; being a director does not mean guaranteeing results, but being able to demonstrate that the process used to pursue those results was properly governed. Following Legislative Decree 47/2026, this is where an increasingly important part of directors' liability in limited liability corporate entities is determined.

This article is intended exclusively for informational and educational purposes. Directors' liability depends on the corporate structure, the powers actually delegated, the articles of association, the economic and financial position and the specific conduct of those involved. The content does not replace a professional assessment of an individual case.