Directors and balance sheet

The Italian Supreme Court ruled on directors’ liabilities concerning balance sheet and its effectiveness towards the company, the shareholders and the creditors.

The judges confirmed that the balance sheet is valid and effective as soon as it has been approved by the shareholders meeting. Therefore, it is binding towards the company and the shareholders who approved it (or who didn’t contest it at the time). If the shareholders have approved the balance sheet, they therefore cannot contest the items accounted for. But, as far as creditors are concerned, the situation is different because they did not partecipate in the approval process and therefore they cannot be penalized.

The ruling n. 390/2012 states that this principle should be used even in case the director is also a creditor. According to the Supreme Court the director should draft the balance sheet basing it on the inventory which contains profits and losses as stated by art. 2424 Italian Civil Code. Although the director has drafted and signed the balances sheet, it’s not sufficient to consitute a legal presumption of the directors’ knowledge and the existence of the facts listed in the balance sheet.

This is why the law doesn’t require the directors to check in detail the payments made in the financial year and their acquittance, requiring them only to chek the correspondence between the items recorded and the company accounts.

According to the Court a different solution would hardly meet the requirements of art. 2423 bis Italian Civil Code and would force the directors to register not only incurred but also probable losses.


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