Director and board of directors of SRL in Italy
The Administrative Body
of the società a responsabilità limitata SRL
The forms of management of a limited company in Italy
Usually the S.R.L. management is performed by one or more partners of the company which are often selected by the shareholders themselves; anyway the Articles of Association may state also different solutions, in fact, the directors can also be chosen out of partners (as per art. 2475 cc).
So that, a S.R.L. could be managed also by a sole director or by more directors; so, if the administration is entrusted to several people, it is expressly provided that they want to set up a board of directors.
In case the S.R.L. is managed by multiple directors, the company may choose one of the following management systems:
1) Board of Directors: the Articles of Association may state that the decisions of the BoD shall be approved by written consent; the BoD may delegate any powers to a Managing Director;
2) Several Administrators: in this case the management is performed by multiple directors which can act individually; for any enlisted matters it is necessary a collective decision:
- draft of financial statements;
- capital increases;
- spin offs;
3) Joint Administration: in this case the administration of the company is performed by multiple directors; anyway the management can be entrusted only to specific directors.
The civil code and other applicable laws don’t provide for a deadline for the performance of the assignment; It is therefore up to the shareholders to indicate the term of office in the articles of association (which, unlike in s.p.a., can also be indefinite) and to govern the extinctive causes of the administrative relationship, their effects and the procedures to be followed for replacement of directors who have left office.
The directors (art. 2476) are jointly and severally liable to the company for damages resulting from the failure to comply with the duties imposed by law and the articles of association.
Furthermore, the liability of directors also extends jointly to non-directors who have intentionally decided or authorized the harmful operation (art. 2476, paragraph 7).
If the in a s.r.l. there is the board of directors, the delegation of functions to a chief executive (or to an executive committee) is possible only by virtue of an explicit statutory clause or a decision taken by the shareholders.
A clause providing for participation in the meetings of the board of directors by mandate is not admissible, given the purely fiduciary nature of the administrative role.
It is lawful a clause in the statute of a s.r.l. providing for means of telecommunication for the meetings of the board of directors.
The provision of the appointment of a general agent or general managers who fully absorb the managerial powers of the BoD is lawless; special powers of attorney are allowed for fulfillment of certain acts or categories of acts.
A two-member board of directors is eligible.
The appointment of a company as director of a limited is admissible even in the absence of a specific statutory provision.
It is lawful the clause that in the event of a tie, the President's vote prevails, provided that the board is composed of more than two members.
If in the statute of a s.r.l. is provided the clause which states that following the termination of one or more directors all directors also terminate, this clause operates also in the case of joint or disjunctive co-administration.
If any changes in the statute are adopted which are relating to the composition of the administrative body and those changes are incompatible with the pre-existing provisions (e.g. reduction of the number of members of the board of directors), the administrative body in office must be deemed to automatically cease with the registration of the resolution of modification in the company register.
They are lawful the statutory clauses of s.r.l. that provide further causes of ineligibility and decay from office or which subordinate the office of director subject to the presence of certain requirements or the absence of certain impedimental causes.
In the event that a s.r.l. has chosen to have a multi-member collegiate administrative body (the Board of Directors), the articles of association may reserve one or more directors
- appointed by individual shareholders (to whom the particular right relating to their appointment has been previously recognized) or
- by minority shareholders (also through list voting),
the right of veto limited to decisions relating to the performance of deeds and / or management operations, also in a generic way and also for those not yet identified.
The so called Consiglio di Amministrazione Totalitario: it is lawful the provision of the stature according to which the administrative body of a s.r.l. is validly constituted when:
- all the directors and statutory Auditors in office have intervened, in the absence of convocation; and
- the majority of its members have intervened and all those entitled to attend have been previously informed of the meeting even without the formalities requested ordinarily for the convocation.