!Корпоративное право 2023-2024 / 2013-study-analysis_en

	regard to his own
	property (diligentia
	quam in suis).
	Courts: Directors
	do not have to
	possess all
	possible technical
	knowledge, but
	the fundamental
	knowledge
	enabling them to
	identify and
	prevent impending
	damage
	2) Objective
Denmark	1) Simple	Generally the	Directors must	Claimant
	negligence	same standard,	ensure that the
	standard	also with regard to	agent is
	2) Generally	employee elected	competent and
		and non-executive	are required to
	objective; see
		board members or	monitor the agent
	Calypso case:
		directors who do
	figurehead
		not receive
	director (semi-
		remuneration.
	skilled worker who
	did not actively	But higher
	participate in the	standard of care if
	running of the	the relevant
	company and	breach is in a field
	signed documents	in which the
	whenever he was	director holds a
	asked to do so),	professional
	but professional	qualification
	knowledge or
	qualifications
	increase the
	required standard
Estonia	1) The care that a	The required level	No case law	Director
	reasonable	of care depends
	person in the	on the area of
	same position	activity and
	under the same	operating range of
	circumstances	the company; the
	would employ	wider the
	(standard of an	operating range
	average,	and the more
	reasonable	complicated the
	business	area of activity,
	leader)104	the stricter are the
	2) Objective	requirements.
		Furthermore, the
		standard of care
		depends on the
		background,

104 It is noteworthy that directors in Estonia have been found in breach of the duty of care for taking unnecessary business risks (Supreme Court case no 3-1-1-89-11 [2011]: taking risks that exceed the company’s everyday business activities and that are contrary to the supervisory board’s guidelines are unjustified).

81 Directors’ Duties and Liability in the EU

				qualification and
				obligations of the
				director.
Finland		1) Behaviour that		The division of	Directors may	Generally the
		would be required		tasks between	delegate, but the	claimant, but Ch.
		from a careful		directors may be	liability remains	22, s. 1(3)
		individual in the		relevant when	with the directors,	provides for a
		specific situation		assessing the	who have the duty	reversal in
		2) Objective		extent of the	to monitor and	particular
				directors’ liability:	ensure that the	circumstances: ‘If
				one director may	delegated tasks	the loss has been
				bear a greater	are properly	caused by a
				responsibility than	discharged;	violation of this
				another	similarly, the	Act other than a
					directors must	violation merely of
					‘monitor’ each	the principles
					other; case law	referred to in
					exists where	chapter 1 [general
					directors have	principles of
					been found liable	equality or loyalty
					for not arranging	or general
					for a proper	mismanagement],
					bookkeeping	or if the loss has
					system105	been caused by a
						breach of the
						provisions of the
						articles of
						association, it
						shall be deemed
						to have been
						caused
						negligently, in so
						far as the person
						liable does not
						prove that he or
						she has acted
						with due care)
France		1) Standard of a		Yes; for example,	Directors have	Generally,
		reasonably careful		the care required	been found liable	claimant, but
		and diligent		from the director	for lack of	rebuttable
		director		of a listed	monitoring	presumption if the
		2) Objective, but		company is higher		director
				than that of the		participated in a
		can be raised if
				director of a small		faulty decision of
		the defendant has
				family-owned		the board
		specific
				business
		knowledge and
		experience
Germany		1) s. 93(1): The		Yes, the directors	Delegation is	Director, s. 93(2)
		care of a diligent		have to meet	permissible, but
		and conscientious		higher standards if	the management
		manager		they act within	board is required

105 Case KKO 2001:85. The chairman of the board claimed that he had agreed with another director to take charge of the bookkeeping. The Supreme Court did not free the chairman from liability. The control over accounts appropriately organised is specifically mentioned in the law. On the other hand, KKO 1997:110 seems to entitle directors to trust that matters they have delegated between themselves are properly taken care of unless they have reason to believe that this is not the case (the case concerned a bank’s irresponsible lending). This case saw the defendant’s position as chairman, preparation and presentation of a matter to the board, and self-interest as incriminating factors. Expertise, on the other hand, was not seen as equally decisive.

82 Directors’ Duties and Liability in the EU

		2) Objective	their field of		to provide for an
			responsibility.		internal monitoring
			In addition, the		system, s. 91(2).
					Directors are
			scope and content
					liable if they do
			of the duties
					not select the
			depends on the
					agents with due
			type and size of
					care, do not
			business, the
					instruct or
			general financial
					supervise them
			and market
					properly
			conditions etc.
Greece		1) Art. 22a:	Yes; the diligence		Failure to monitor	Director, Art.
		directors must	of the prudent		is considered as a	22a(2)
		display the care of	businessman shall		breach of the duty
		a “prudent	be judged by		of care
		businessman”	taking into
			account the
			capacity of each
			member and the
			duties that have
			been assigned to
			him (Art. 22a(2)).
			In addition, the
			standard of care
			varies depending
			on, the company’s
			size, its objective,
			and whether it is
			listed or not.
Hungary		1) The care and	Generally, the		Directors are	Director
		diligence as	standard does not		supposed to act
		generally	differ across		personally
		expected from	sectors or
		persons in the	between listed
		director’s position	and non-listed
		and giving priority	companies. The
		to the interests of	courts can,
		the company	however, adjust
		2) Objective	the required
			standard of
			conduct according
			to the specific
			facts of the case.
Ireland		1) A universally	Yes, factors		- Barings was	Claimant
		accepted	considered by the		approved by Irish
		definition of the	courts include the		courts: directors
		standard of care	size of the		are entitled to
		does not exist in	company, the type		delegate functions
		Irish law; the	of director and his		and trust the
		courts employ a	or her experience		competence and
		flexible, common-	and qualifications,		integrity of their
		sense approach	the type of duties		staff to a
		that is fact-	undertaken and		reasonable extent,
		specific.	the remuneration		but the exercise of
		2) Initially:	of the director		the power of
					delegation does
		subjective;
			83	Directors’ Duties and Liability in the EU

		recently the courts			not absolve a
		have moved			director from the
		towards a stricter			duty to supervise
		application that			the discharge of
		promotes			the delegated
		objective			functions
		minimum			- It was also held
		expectations.
					that a director who
		However, the
					relied on his co-
		courts still take
					directors ‘with an
		individual
					optimism that was
		circumstances or
					certainly not
		the director’s
					justified, but which
		knowledge and
					perhaps was
		experience into
					understandable’
		account when
					acted honestly
		defining the
					and responsibly
		standard of care.
					- Courts
					emphasise that
					non-executive
					directors perform
					an oversight role.
					It is sometimes
					contended that
					non-executive
					directors can only
					be expected to
					perform this role
					in relation to
					information given
					to them or which
					they ought to have
					requested.
Italy		1) The director	Yes: the standard		Delegation is	Director
		must exercise his	depends on the		permissible; the
		duties with the	specific role		director must
		knowledge, skill	(natura		supervise agents
		and experience	dell’incarico)		and ensure that
		that may	carried out by the		the management
		reasonably be	director		and accounting
		expected by an			structure of the
		average director			company is
		carrying out a			adequate.
		similar role and by			Delegated
		the specific care			managers have a
		and competence			duty to report to
		that the director			the board of
		has			directors and
		2) Objective, but			board of statutory
					auditors at least
		subjective
					every 6 month on
		elements increase
					the management
		the standard of
					of the company
		care
					(Art. 2381(5) Civil
					Code)). The
					directors are
					required to make
			84	Directors’ Duties and Liability in the EU

					informed
					decisions and
					may request
					clarifications on
					the management
					of the company
					(Art. 2381(5) Civil
					Code)
Latvia		1) Statutory	Probably yes:		No case law	Director
		definition: in	what it means to
		fulfilment of their	be a prudent and
		duties, directors	careful manager is
		must act as	evaluated on a
		prudent and	case-by-case
		careful managers	basis
		2) The literature
		argues that this
		should be
		interpreted as an
		objective
		standard: what
		can be expected
		from a prudent
		and careful
		manager in a
		business or in a
		particular type of
		business (stricter
		than the standard
		of care under
		general civil law)
Lithuania		1) Civil Code, Art.	The standard		Delegation of	- Art. 6.248(3)
		2.87: duty to act	depends on the		tasks does not	Civil Code: ‘A
		with reasonable	functions		lead to the	person shall be
		care	performed by the		exclusion of	deemed to have
		Literature: duty to	defendant director		liability	committed fault
						where taking into
		act in the same
						account the
		way as a
						essence of the
		reasonable
						obligation and
		person with the
						other
		necessary skills
						circumstances he
		and experience
						failed to behave
		who performs
						with the care and
		similar duties
						caution necessary
		2) Objective with
						in the
		subjective
						corresponding
		elements: the
						conditions.’
		standard of care is
						- According to the
		that of a prudent,
						Supreme Court
		diligent and
						the claimant must
		careful person,
						prove wrongful
		but in assessing
						acts (breach of
		the actions of the
						director’s duty),
		director the courts
						damages, and
		take into account
						causality. If these
		the age,
						three elements
			85	Directors’ Duties and Liability in the EU

	education,			are shown, fault is
	experience, etc. of			presumed. Then it
	the director			is left for the
	(however, this			director to prove
	does not mean			that there was no
	that subjective			fault (3K-7-
	elements lower			444/2009). There
	the standard of			is a close link
	care; from the			between the
	case law of the			breach of
	Supreme Court it			director’s duties
	can be inferred			and fault, but they
	that the objective			are considered as
	standard shall			two separate
	serve as an			elements.
	irreducible
	minimum)
Luxembourg	1) No statutory	- In determining	Delegation to an	Claimant (different
	definition; case	the standard of	Administrateur-	for responsabilité
	law and literature:	care, the courts	délégué or	légale under Art.
	what can	distinguish	Directeur délégué	59(2) for breaches
	reasonably be	between a director	à la gestion	of the Companies
	expected of a	who is paid for his	journalière	Act or the articles
	director of	services and a	permissible	of association:
	average and	director who does	(Companies Act,	once a breach is
	reasonable	not receive	Art. 60) and	established, the
	prudence and	compensation	common in	director is
	competence	(see left)	practice	presumed to have
	acting under the	- In general, the		committed a fault)
	same
		definition of the
	circumstances,
		standard of care is
	called ‘le critère
		flexible enough to
	du bon père de
		allow the courts to
	famille’
		distinguish
	2) Objective for	according to the
	paid directors;	facts of the
	subjective for	individual case
	unpaid directors,
	i.e. the courts take
	into account the
	abilities of the
	particular director
Malta	1) Art. 136A(3)(a):	The standard	- The model	Claimant
	the degree of	applies to all	articles allow the
	care, diligence	directors,	directors to
	and	irrespective of	delegate
	skill which would	whether they act	competences
		as executive or
	be exercised by a		- Art. 136A(2)(b):
		non-executive
	reasonably		the directors are
		directors
	diligent person		responsible for the
	having both –		general
	a) the knowledge,		supervision of the
			company’s affairs
	skill and
	experience that		- Some case law
	may reasonably		holds that
	be expected of a		directors are

86 Directors’ Duties and Liability in the EU

	person carrying		entitled to focus
	out the same		their attention on
	functions as are		the essential
	carried out by that		aspects of the
	director in relation		company’s
	to the company;		business and rely
	and		on the work of
	b) the knowledge,		employees;
			however, it has
	skill and
			been argued that
	experience that
			delegation does
	the director has
			not completely
	2) Objective, but
			absolve the
	subjective
			directors from
	elements increase
			supervising the
	the standard of
			delegates
	care
Netherlands	1) Case law: a	Courts consider	While the	- Internal liability
	director is	all circumstances	management of	(s. 2:9): Claimant,
	required to meet	of the case,	the company is	but the burden of
	the standard of	including: the	the task of the	proof is on the
	care which can be	nature of the	board of directors	director to show
	expected of a	activities of the	as a whole,	that he cannot be
	director who is	company, the	delegation is	held responsible
	competent for his	risks which	permissible.	for an unlawful act
	task and performs	generally result	However, where	adopted by all
	his/her duties with	from this type of	tasks are	directors (s. 2:9
	diligence	activity, the	delegated, the	second sentence)
	2) Objective	division of tasks	board is required	- External liability
		within the board of	to monitor the
				(general tort and
		directors and the	performance of
				liability in
		knowledge that	these tasks.
				bankruptcy):
		the director had or
				Generally the
		should have had
				claimant, but the
		at the time of the
				burden of proof is
		disputed action
				on the directors if
				they have total
				control over the
				company, did not
				keep proper
				books or did not
				file the annual
				accounts with the
				chamber of
				commerce
				- s. 2:139
				(misleading
				accounts): fault of
				the directors is
				presumed
Poland	1) Directors shall	Benchmark is the	A clear	Director
	exercise a degree	knowledge and	assignment of
	of diligence	experience	tasks between
	proper for the	relevant to the	directors can help
	professional	size and profile of	to limit the
	nature of their	the company; it is	exposure of
		expected that a	individual

87 Directors’ Duties and Liability in the EU

	actions	director of an	directors. E.g., if
	2) Objective; a	investment fund or	one director
		bank has higher	supervises
	person who
		degree of	financial
	accepts an
			operations and
	appointment as	experience or
			the damage
	director while	knowledge than a
			occurred in this
	lacking the	director of an
			field, the
	relevant	ordinary company
			responsibility of
	knowledge and
			this manager is
	experience for the
			heightened.
	position may be
			However, division
	considered as
			or delegation of
	being in breach of
			tasks does not
	the standard care
			lead to the
			complete
			exclusion of
			liability
Portugal	1) Art. 64(1)(a):	- The standard of	Duties can be	Director, Art. 72(1)
	directors must	care depends on	allocated among
	display the	the type, object	the directors (Art.
	willingness,	and size of the	407(1)) or the
	technical	company, the	current
	competence and	economic sector	management of
	understanding of	where the	the company
	the company’s	company is active,	delegated to one
	business that is	the nature and	or more directors
	appropriate to	importance of the	or an executive
	their role, and	decision taken	committee (Art.
	execute their	(day-to-day	407(3)). In that
	duties with the	management	case, the other
	diligence of a	decision or	directors are
	careful and	extraordinary	responsible for the
	organised	decision), the time	general vigilance
	manager	available to obtain	of the
	2) Objective	information, and	performance of
		the type of	the delegatees
	Supreme Court:
		behaviour usually	and for any losses
	the standard is not
		adopted under	incurred through
	that of the ‘bonus
		such	acts or omissions
	pater familias, but
		circumstances.	on their part,
	a manager with
		- In addition, it	when, having
	certain capacities
			knowledge of
		varies according
	… From the
			such acts or
		to the functions
	objective nature of
			omissions, they
		performed by
	the standard of
			fail to seek the
		directors in the
	care results the
			intervention of the
		different corporate
	indifference to the
			board to adopt the
		governance
	personal
			necessary
		models available
	circumstances of
			measures (Art.
		under Portuguese
	the director,
			407(8)) →
		law (Latin,
	namely his
			oversight liability,
		German, or Anglo-
	incapacity or		but lower standard
		106
		Saxon model)

106 (1) In the classic or Latin model, although it is possible to assign certain functions to specific members, all the directors on the board are competent to make business decisions. Thus, the same standard of care applies and the directors are jointly and severally liable for a breach of duty. Internally, they enjoy a right to recourse according to the proportion of their fault (Code of

88 Directors’ Duties and Liability in the EU

		incompetence.’	- Directors with	than that
			supervisory	applicable to
			functions are	executive
			generally subject	directors (duty to
			to the same	monitor, examine
			standard of care	critically the
			as executive	information
			directors, Art.	received by the
			81(1). They are	other directors or
			jointly liable with	agents, and make
			the managers if	enquiries if
			the damage would	necessary)
			not have occurred
			had they properly
			executed their
			supervision
			duties, Art. 81(2)
Romania		1) The standard	The standard of	- Delegation of	The initial burden
		required from a	care depends on	duties to a	of proof is on the
		‘good	the ‘particular	management	director to show
		administrator’ →	situation’ of the	committee is	that he/she acted
		the level of	director	common in the	with prudence and
		diligence,		one-tier system; in	diligence. If the
		prudence, and		the two-tier	director adduces
		competences that		system, duties	evidence to the
		would be required		can also be	contrary, the
		from a good		allocated among	burden may be
		administrator		the members of	reversed (Court of
		found in the		the executive	Appeal of
		particular		board or	Bucharest,
		business situation		delegated	Commercial
		of the director		- In this case: duty	Division, no. 167
					13.04.2011).
		2) Objective; no		to gather
		reference to the		information (Art.	See now also Art.
		knowledge, skill or		140) and monitor	1548 New Civil
		experience of the		the managers	Code, in force
		director		(Art. 142(2))	since 2011, which
				- Courts: the duty	provides for a
					presumption of
				of inquiry entails
					fault if the debtor
				the obligation of
					does not fulfil a
				the directors to be
					contractual
				proactive and
					obligation
				solicit documents
					(however, it is
				and information
					problematic
				from executives
					whether the article
				- The duty to

Commercial Companies, Art. 73). The internal division of powers by delegation Code of Commercial Companies, Art. 407(1) and (2)) may have an impact on the internal relationships between the directors and their right to recourse.

(2)In the one-tier or Anglo-Saxon model, the members of the executive board of directors (“Conselho de Administração Executivo”) are bound by the ordinary standard of care. Non-executive directors who are members of the audit committee perform functions similar to those of the audit board in the classic model. As they perform the auditing functions, they are subject to the duty of care and must employ high standards of professional diligence in the interest of the company (Art. 64(2)). Special, analytic and specific monitoring is demanded.

(3)In the two-tier or German model, the members of the executive board of directors (“Conselho de Administração Executivo”) are subject to the ordinary standard of care. The standard applicable to the members of the “general and supervisory board” (“Conselho Geral e de Supervisão”) corresponds to that of the audit committee’s members in the Anglo-Saxon model. However, in relation to matters which, under the law or the articles of association, belong to the executive board, but require the prior consent of the general and supervisory board (Art. 442), the ordinary standard of care is applicable.

.

89 Directors’ Duties and Liability in the EU

			monitor does not	also applies to the
			require the day-to-	non-fulfilment of
			day supervision of	means, such as
			management, but	the duty of care,
			it is understood as	or only obligations
			the more general	of results; no case
			task of being	law applying the
			familiar with the	new article to
			internal operations	directors’ duties)
			of the company
Slovakia	1) The director	No case law on	No explicit rules	- Supreme Court:
	must act with due	the question of	on monitoring and	the claimant must
	professional care,	whether factors	no case law; it is	prove all elements
	obtain and use all	such as the size	argued that where	of the claim, but
	relevant	and nature of the	directors delegate	the issue is not
	information	business and the	functions, the act	settled and the
	2) Objective	function and role	of delegation will	prevailing opinion
		of the director	have to conform	in the literature
		determine what	to the duty of care	disagrees with the
		‘professional care’	standards and	court
		means in the	directors have to	- Literature: the
		relevant context	monitor the
				burden of proof is
			discharge of the
				on the director
			delegated tasks
Slovenia	1) Directors must	The required	The ZFPPIPP	Director, Art.
	act with the	standard of care is	specifies risk	263(2)
	diligence of a	determined by	management and
	conscientious and	considering the	monitoring
	fair manager, Art.	rules, customs	obligations: The
	263(1)	and expertise	directors are
	Supreme Court:	established within	required to ensure
		the particular	that the company
	this should be
		profession. It	provides for
	construed as the
		differs according	adequate risk
	highest diligence
		to the size of the	management
	of a good expert,
		company, its	procedures, which
	and not the
		activities and	shall include the
	diligence that is in
		particular	determination,
	any case required
		situation, as well	measurement or
	from reasonable
		as the allocation	assessment,
	persons in
		of responsibilities	management and
	commercial
		among the	monitoring of
	transactions
		directors.	risks, including
	2) Objective
			reporting on the
			risks to which the
			company is or
			could be exposed
			in its operations
			(Art. 30).
Spain	1) Care of an	The standard of	Outside directors	Claimant (but s.
	orderly	care depends on	are not liable for	237 may be of
	businessman;	the type of	the executive	assistance if
	expressly	business activity,	management, but	liability is based
	regulated: duty to	whether or not the	they are required	on a decision by
	be informed	company is listed,	to select the	the whole board,
	2) Objective	the position of the	agents carefully,	see below 2.6)
		director held on	instruct and

90 Directors’ Duties and Liability in the EU