An action for liability against directors serves to protect the company's assets when management not compliant with legal duties or the bylaws has caused damage. If you are a shareholder, creditor, or member of a corporate body, the doubt does not concern only the seriousness of a choice: it is necessary to understand who suffered the damage, which duty was violated, and who can take action.
I will explain the difference between the action brought in the interest of the company, the protection recognized for creditors, and the compensation due to anyone who has suffered personal and direct prejudice. We will also see why a negative economic result is not enough on its own and which facts make an allegation of mala gestio concrete.
Liability Does Not Arise from Every Wrong Choice
A loss does not prove mala gestio on its own. Administering entails entrepreneurial decisions that may turn out unfortunate without automatically transforming into compensatory liability. The action gains foundation when the damage derives from the violation of obligations imposed by law, by the bylaws, or by the office: for example, transactions carried out without the necessary precautions, unmanaged conflicts of interest, improper use of corporate resources, accounting omissions, or failure to react to known prejudicial facts.
In S.p.A.s, Article 2392 of the civil code links liability to the diligence required by the nature of the office and the specific skills of the director. The rule also concerns those who did not personally carry out the damaging act when, while knowing about the problem, they did not do what they could to prevent it or limit its consequences. The text of the article and the discipline of the corporate action have been updated by Legislative Decree No. 47 of March 27, 2026.
A breach and a connected damage are needed. It is not sufficient to indicate questionable conduct: it is necessary to identify the concrete duty that the director failed to respect, the financial loss suffered by the company, and the nexus between that conduct and the loss. If a company would have suffered the same damage due to causes extraneous to the contested conduct, that connection may be lacking or reduced.
The Corporate Action Protects the Company's Assets
Compensation is owed to the company. The corporate action for liability does not serve to directly distribute compensation to the shareholders who promoted it. Instead, it aims to replenish the corporate assets, which may have been impoverished by the unlawful management. For this reason, it must be distinguished from the claim with which a shareholder asks for compensation for damage suffered personally.
In the S.p.A. the Company or, in Certain Cases, the Minority Acts
In the S.p.A., the corporate action is normally promoted following a resolution of the assembly, even if the company is in liquidation. The resolution can be adopted during the approval of the financial statements if it concerns facts of the financial year to which the financial statements refer. Current legislation also provides that the action may be exercised by shareholders representing at least one-fifth of the capital, or the lower threshold established by the bylaws, which however cannot exceed one-third of the capital. In companies that resort to the risk capital market, the threshold is one-fortieth of the capital, barring a lower statutory threshold.
The minority does not act for private advantage. Even when shareholders promote the action, the company must be summoned in court and any economic utility of the initiative remains within its assets. The shareholders who act appoint a common representative; if the claim is upheld, the company reimburses unrecovered expenses within the limits provided by law. These rules result from Article 2393-bis in the text coordinated by Legislative Decree No. 47 of 2026.
The assembly resolution can also lead to the revocation of the directors against whom the action is proposed, but only if it is approved with the favorable vote of at least one-fifth of the share capital. Revocation is therefore not an inevitable consequence of every contestation: it depends both on the corporate decision and on the threshold required by law.
In the S.r.l. Every Shareholder Can Promote the Action
In the S.r.l. a minimum share is not required. Article 2476 of the civil code allows each shareholder to promote the action for liability against directors. The rule also recognizes shareholders who do not administer the right to receive news on the progress of business and to consult corporate books and documents relating to administration, also through trusted professionals. These are useful tools for understanding specific facts, not an authorization to permanently replace management.
When there are serious irregularities in management, the shareholder can also ask for an interim measure for the revocation of the director. It is a provisional measure, not an automatism: the seriousness of the irregularity and the need for immediate protection must emerge in a concrete way. Article 2476 also provides that the approval of the financial statements does not, on its own, release directors and statutory auditors from liabilities accrued during management. The current text can be consulted on Normattiva, Article 2476 of the civil code.
Shareholders, Creditors, and Third Parties Do Not Have the Same Protection
The nature of the damage decides which action to use. A shareholder may economically feel the decrease in value of their shareholding, but this prejudice often derives from the damage suffered first by the company. In such a situation, the appropriate tool is the corporate action: the relief enters the corporate assets and may indirectly reflect also on the value of the shareholding.
Individual compensation instead becomes relevant when the shareholder or a third party suffers direct damage, meaning one not coinciding with the simple impoverishment of the company. A payment received personally by the director based on deceptive conduct, or a lesion that immediately impacts the assets of a third party, poses a problem different from the corporate action. In S.p.A.s, Article 2395 expressly preserves the action of the shareholder or third party directly damaged; for such action, the term indicated by the rule is five years from the commission of the damaging act.
Creditors act when assets are not enough. The action of corporate creditors concerns the violation of obligations to preserve the integrity of the company's assets. Therefore, the failure to pay a single debt is not enough: it is necessary that the corporate assets prove insufficient to satisfy the claims. This protection is provided for S.p.A.s by Article 2394 and, for S.r.l.s, was expressly introduced into Article 2476 by Article 378 of the Crisis and Insolvency Code, available in the Official Journal of Legislative Decree No. 14 of January 12, 2019.
The company's waiver of the action does not prevent creditors from exercising their protection when the prerequisites exist. A settlement concluded by the company, instead, can be contested by creditors only with the revocation action and only if the conditions provided for that remedy recur. Company and creditors pursue different interests: the former aims at its own assets, the latter at the patrimonial guarantee necessary for the payment of debts.
Which Facts and Documents Make the Damage Verifiable
The contestation must start from controllable facts. Board or assembly resolutions, contracts, bank statements, financial statements, accounting records, corporate correspondence, and reports of the control body can clarify who decided, when a commitment was undertaken, what information was available, and what economic effect the operation produced. Not every document has the same weight: a resolution proves a decision, but does not automatically demonstrate either fault or the amount of the damage.
A point that is often decisive concerns the distribution of functions. In a board of directors, not all directors necessarily follow every operation in the same way. However, the existence of delegations does not automatically release the other components: what counts is whether they knew about damaging facts and whether they had concrete tools to intervene. On the other hand, the director who proves to be free of fault and to have promptly expressed dissent in the required forms can escape joint and several liability.
Damage must be distinguished from simple disbursement. If the company sold an asset or stipulated a contract, comparing the price with an abstract value is not enough. It is necessary to understand what effective loss the corporate assets suffered and whether there were utilities, recoveries, or alternative causes. When the contestation concerns the continuation of activity after a cause of dissolution, rules on the obligations of directors in the phase of preserving corporate assets also assume relevance.
To prepare a useful comparison, it is appropriate to order facts in sequence: the contested decision, the information available at that moment, any opposition or lack of vigilance, the damage that emerged, and the documents showing it. Chronology avoids misunderstandings between an entrepreneurial decision that turned out unfavorable and conduct that violated precise duties.
Deadlines, Waiver, and Company Crisis
Time matters, but deadlines change according to the action. For the corporate action in the S.p.A., Article 2393 establishes that the action may be exercised within five years from the director ceasing to hold office. For the individual action of a shareholder or third party, Article 2395 indicates five years from the commission of the act that produced the direct damage. These two starting dates must not be confused, because they respond to different situations.
The company can waive the corporate action or reach a settlement, but the decision requires an express resolution and meets the protection of minorities provided by law. In the S.p.A., the waiver or settlement does not pass if a minority representing at least one-fifth of the capital opposes it, or one-twentieth in companies resorting to the risk capital market, barring the statutory measure recalled by the law. In the S.r.l., barring different provisions of the bylaws, the consent of shareholders representing at least two-thirds of the capital and the absence of opposition from shareholders representing at least one-tenth are required.
The crisis transfers the initiative to procedure bodies. As of April 29, 2026, the entry into date of Legislative Decree No. 47 of 2026, Article 2394-bis of the civil code provides that, in judicial liquidation, liquidation concordat, compulsory administrative liquidation, and extraordinary administration, liability actions belong respectively to the bankruptcy trustee, judicial liquidator, commissioner liquidator, or extraordinary commissioner. The same provision establishes a forfeiture term of two years from the sentence opening judicial liquidation or from the sentence declaring the state of insolvency.
When the company is already involved in insolvency proceedings, it is therefore not correct to overlap without distinction the individual initiative of the creditor with that of the procedure body. The choice of action depends on the corporate phase, the nature of the damage, and the subject whom the law empowers to act at that moment.
Which Path to Consider Before Acting
The first choice is to identify the interest to be protected. If the damage is the company's and it is operational, it may be necessary to promote a resolution or, in the foreseen hypotheses, activate the corporate action of the shareholders. If the problem is immediate damage to the assets of the shareholder or a third party, it is instead necessary to separate that prejudice with precision from the one suffered by the company.
A request for precautionary revocation can be pertinent in S.r.l.s when serious irregularities emerge and the problem cannot wait for the definition of the compensatory claim. A settlement can be a sensible alternative only if it clearly quantifies what the company recovers, is adopted with the foreseen rules, and does not sacrifice the positions protected by law. Closing a dispute does not mean waiving without conditions.
Above all, two errors must be avoided: treating dissent between shareholders as automatic proof of liability and asking for personal compensation for damage that belongs to the company. If you want to clarify which protection corresponds to your position, you can contact me with an essential reconstruction of the facts and documents already available.
Frequently Asked Questions
Can I take action against a director just because the company closed at a loss?
No, the loss is not enough. You must be able to connect the damage to the violation of a duty of law, of the bylaws, or of the office. The difference is between a physiological entrepreneurial risk and management carried out without the required diligence, in a conflict of interest, or omitting mandatory controls and interventions.
Is compensation paid to the shareholder who promotes the action?
In the corporate action, compensation goes to the company. The shareholder who acts protects corporate assets, even if their value can indirectly reflect on the shareholding. A direct payment to the shareholder instead requires personal and immediate damage, different from the decrease in value deriving from damage to the company.
In an S.r.l., do I need a minimum share to start the action?
No, each shareholder can promote it. Article 2476 of the civil code recognizes this individual standing to the S.r.l. shareholder. However, it remains necessary to prove a violation of management duties, the damage suffered by the company, and the connection between conduct and prejudice.
Can I ask for the revocation of the director before the judgment?
In the S.r.l., it is possible to ask for an interim measure. The request presupposes serious irregularities in management and does not automatically replace the liability judgment. The judge evaluates the prerequisites of urgent protection and can make the measure conditional on the provision of a bond.
Can a creditor take action even if the company has waived the action?
Yes, the company's waiver does not block the creditors' action. The creditor must however prove the insufficiency of corporate assets and the violation of obligations to preserve their integrity. If a corporate settlement exists, its contestation follows instead the rules of the revocation action.
Essential Regulatory References
For the S.r.l., I recalled Article 2476 of the civil code published on Normattiva. For the discipline of S.p.A.s, including Articles 2392, 2393, 2393-bis, and 2394-bis in the text modified in 2026, the reference is Legislative Decree No. 47 of March 27, 2026. For the extension of creditor protection to S.r.l.s, the reference is Article 378 of Legislative Decree No. 14 of January 12, 2019.