A director can bring a claim, on behalf of the company, against the other directors for breach of their duties only if a shareholders’ meeting resolved to bring that action. Tribunale di Milano, January 12, 2015.

The court can raise the lack of that resolution sua sponte because a shareholders’ decision to sue directors is fundamental element to file the claim.

While the rule requiring a resolution of the shareholders’ meeting is expressly required only for the S.p.A. (which is similar to a corporation) in article 2393 Italian Civil Code, the rule applies to the S.r.l. (similar to a LLC) as well because it is a general principle deriving from the fact that the shareholders appoint directors and therefore they are the ones that can complain of their conduct. It would not be reasonable to leave to a director’s discretion to decide when to bring an action against other directors because the action (or the threat of the action) could be used by the board to extort a certain course of action from a director. Read the decision(in Italian)

More info (in Italian) in this article

For more information, contact Francesca Giannoni-Crystal