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

			board shall not:			prohibited)
			1) be a sole
			proprietor in the
			area of activity of
			the company;
			2) be a partner of
			a partnership
			which operates in
			the same area of
			activity as the
			company;
			3) be a member of
			the managing
			body of a
			company which
			operates in the
			same area of
			activity (except for
			groups)
Finland		Companies Act,	Ch. 1, s. 8 would		- Possibly	General duty to
		Ch. 6 § 4: a	apply: the director		application of Ch.	act in the best
		director is	may be judged as		1, s. 8, but the	interest of the
		prohibited from	not having		duties only apply	company
		participating in	promoted the		as long as the
		decisions	interests of the		director holds
		regarding matters	company and thus		office.
		between the	be held liable if		- Directors are
		company and	there was an
					bound by
		himself	identifiable harm
					confidentiality as
			to the company
					regards
					information
					received as a
					board member
					also after
					resignation and
					can be held liable
					for violation of
					business secrets
					in accordance
					with the Criminal
					Code Ch. 30, § 5
France		The law	The case law on		Resigning	General duty to
		distinguishes	the corporate		directors who set	act in the best
		between:	opportunities		up a competing	interests of the
		1) Prohibited	doctrine is not well		business and	company, which
			developed.		attracted other	comprises the
		agreements (e.g.
			Directors (but not		employees of their	duty not to
		loans or
			the managers of		former company	disclose
		guarantees by the
			the SARL) are		to the new	confidential
		company to the
			allowed to run		business were	information and
		director): directors
			competing		found liable for	not to compete
		cannot enter into
			businesses.		breach of the duty	with the company
		the agreement;
					of loyalty
		ratification by GM
		not possible
		2) Regulated
			131	Directors’ Duties and Liability in the EU

		agreements:
		transactions
		between the
		company and the
		director that are
		not prohibited, but
		also not entered
		into in the ordinary
		course of
		business; valid if
		prior authorisation
		by the board (the
		interested director
		must not vote).
		If the director
		takes part in the
		vote, the
		transaction is
		void, regardless of
		whether the
		director’s vote is
		essential or the
		transaction is
		beneficial to the
		company.
		Shareholder
		authorization does
		not exempt the
		director from
		liability.
		3) Transactions
		entered into in the
		ordinary course of
		business and at
		arm’s length: valid
		without
		authorisation; not
		even disclosure is
		required
Germany		The supervisory	1) Duty not to		Resigning	-
		board represents	compete, s. 88:		directors continue
		the company in	members of the		to be subject to
		dealings with the	management		the prohibition to
		members of the	board are not		exploit corporate
		management	permitted to		opportunities
		board, s. 112	operate a trading		(BGH WM 1985,
			business		1443: director
			(Handelsgewerbe)		resigns and forms
			or enter into		a new company to
			transactions in the		exploit the
			company’s line of		business
			business, unless		opportunity)
			the supervisory
			board gives its
			consent
			2) Unwritten
			corporate
			132	Directors’ Duties and Liability in the EU

			opportunities
			doctrine:
			encompasses
			corporate
			opportunities
			made available to
			family members
			and other cases
			that do not fall
			within s. 88
Greece		Art. 23a:	- Art. 23: directors		- The duty	Duty of
		1) Absolutely	participating in the		stemming from	confidentiality, Art.
			management of		Art. 23 continues	22a(3)
		prohibited
			the company and		for a ‘reasonable
		contracts, e.g.
			managers must		time’ after the
		loan, credit or
			not take on their		director resigns
		guarantee/security
			own account or on		(Art. 23 in
		agreements
			the account of a		conjunction with
		between the
			third party any		Arts. 288, 281 of
		company and a
			action that falls		the Civil Code)
		director (or a
			within the
		related person)			- This prohibition
			company’s
		2) Contracts			may be extended
			objectives, or be
					contractually
		subject to certain
			partner in an
		limitations:
			unlimited
		contracts that do
			company that
		not fall under the
			conducts the
		definition of
			same business,
		absolutely
			without
		prohibited
			permission of the
		contracts and that
			general meeting
		are not within the
			- This prohibition
		scope of ordinary
			covers mainly the
		business
			executive
		transactions need
			directors, de
		approval by the
			factor directors,
		GM
			and major
		3) Other contracts
			shareholders who
		can be freely
			can exercise
		concluded without
			influence over the
		approval by the
			board’s decisions
		GM, provided that
			- Literature: non-
		they fall within the
			executive
		company’s
			directors are
		ordinary business
			considered to
		transactions (Art.
			participate in the
		23a(2))
			company’s
			management
			indirectly; hence
			they are caught by
			Art. 23
			- No case law on
			this issue
Hungary		No specific rules	1) Directors are		Solved by asking	Duty of
		(except for private	prohibited from:		whether a causal	confidentiality
		limited companies	- acquiring shares,		link exists
			133	Directors’ Duties and Liability in the EU

		where	other than shares		between the
		authorisation of	in public limited		director’s conduct
		the general	companies, in any		and the loss
		meeting is	business		suffered by the
		required).	organization		company in spite
		According to	whose main		of the resignation
		general rules of	activity is similar
		the Civil Code	to that of the
		covering	company
		representation	- accept an
		and agency, the
			executive office in
		agent is prohibited
			a business
		from acting if the
			association whose
		other party is
			main business
		himself or
			activity is similar
		represented by
			to that of the
		him as well. The
			company
		supervisory board
			Exceptions: if
		is not supposed to
			permitted in the
		represent the
			articles of
		company and act
			association or the
		on behalf of it,
			supreme body of
		either in general
			the company has
		or in this specific
			given its consent
		situation. The law
		is unsatisfactory	2) Directors are
		and the New Civil	also prohibited
		Code does not	from entering into
		seem to change	any transactions
		that.	falling within the
			scope of the main
			activities of the
			company, unless
			permitted in the
			articles of
			association. The
			authority to grant
			permission may
			be delegated to
			the supervisory
			board. Otherwise
			the supervisory
			board has no role
			to play in this
			situation.
Ireland		A director must	- A director must		- The no-conflict	1) Duty to act in
		not have an	not make a secret		and no-profit rules	the best interest of
		unauthorised	profit through the		continue to apply	the company
		personal interest	use of		after resignation	(applies also
		in transactions	opportunities		where post-	where related a
		with the company	which have arisen		resignation	party transaction
		1) fairness of the	in the course of		behaviour is	has been
			his or her		tainted by prior	disclosed
		transaction is
			management of		breaches of duty	pursuant to
		irrelevant
			the company’s			Companies Act
		2) duty to disclose			- Whether the
			affairs.			1963, s.194)
					English maturing
		any interest in a
			The requirements		business	2) Duty to act for
		transaction with
			134	Directors’ Duties and Liability in the EU

		the company,	are not well		opportunities	proper purposes
		Companies Act	established, but it		doctrine is
		1963, s.194	has been held that		applicable has not
		3) authorisation:	liability can arise		yet been decided;
			irrespective of		the decisions in
		a) the articles of
			whether the		Island Export
		association or
			company could		Finance Ltd v.
		shareholder
			have made a		Umunna [1986]
		agreements may
			profit →		BCLC 460;
		authorise the
			comparable to		Balston Ltd v.
		directors to enter
			English cases that		Headline Filters
		into certain types
			generally do not		Ltd [1990] FSR
		of contract; OR
			allow capacity		385; and
		b) approval: it is	facts as an		Framlington
		controversial	excuse		Group plc v.
		whether consent	- Authorisation by		Anderson [1995] 1
		has to be declared			BCLC 475 would
			the board of
		by the company in			have persuasive
			directors is
		general meeting			value for courts in
			possible; Irish
		or the board of			Ireland
			case law suggests
		directors (most
			that the conflicted
		authority supports
			director should not
		the latter view; but
			participate in the
		note that there is
			decision of the
		persuasive
			board, but the
		authority
			issue has not
		suggesting that for
			been the subject
		the purposes of
			of the direct ruling
		compliance with
			and the model
		s.194 it is
			articles would
		irrelevant whether
			allow the director
		the contract is
			to vote
		approved by the
		board or not so
		long as the
		requisite
		disclosure has
		been made)
		3) consequences
		of violation: the
		company can
		avoid the contract
Italy		Art. 2391:	Art. 2391(5):		Directors cannot	Heightened
		1) Duty to declare	1) Corporate		take advantage of	requirements for
					corporate	related-party
		the nature and	opportunity:
					opportunities after	transactions if the
		extent of any	questionable
					they resign if they	company is listed
		direct or indirect	whether this has
					resign because	or widely held: a
		interest to the	to be within the
					they want to use	committee, with a
		directors and the	company’s line of
					the opportunity, as	majority of
		statutory auditors	business (no case
					this would be a	independent
		2) The conflicted	law yet, but
					way of avoiding	directors, must
			unlikely because
		director can
					the mandatory	give its opinion on
			otherwise 2391(5)
		attend and vote at
					rule	any related-party
			would be
		the board
						transaction
			redundant and
		meeting, provided
			already covered
		that the board’s
			by the duty of
		resolution
			135	Directors’ Duties and Liability in the EU

	appropriately	non-competition)
	justifies the	2) The article
	reasons and the
		requires that the
	opportunity for
		director must have
	entering into the
		obtained the
	transaction
		opportunity ‘in
	3) If there has not	connection with
	been the required	the appointment’
	disclosure by the	→ unclear
	conflicted director	whether the
	and the	director must have
	resolution, which	learned of the
	was adopted with	opportunity in his
	the determining	role as director
	vote of the	3) No breach of
	interested
		duty if the
	director, may
		company is
	harm the
		unable to take
	company, it may
		advantage of the
	be challenged by
		opportunity
	the remaining
	directors and the
	board of statutory
	auditors (voidable)
Latvia	1) The	Duty of non-	Unclear	-
	supervisory board	competition, s.
	represents the	171 Commercial
	company in	Law: without prior
	dealings with the	consent of the
	members of the	supervisory board
	management	(or the general
	board	meeting if no
	2) The member of	supervisory board
		is formed) a
	the management
		director may not:
	board must
	disclose any	- be a partner of a
	conflict of interest	partnership acting
	between the	in the same field
	company and him-	of business as the
	/herself or his/her	company;
	spouse, a relative	- enter into
	or brother/sister-
		transactions in the
	in-law before the
		same field of
	board meeting
		business;
	and is not entitled
		- be a member of
	to vote in the
		the management
	meeting
		board of any other
	(Commercial Law,
		company in the
	154
	s. 309(3))	same field of
		business
Lithuania	1) Civil Code, Art.	1) 2.87(3): duty to	No special	1) General duty of
	2.87(5): a director	avoid conflicts of	statutory rules for	loyalty: case law

154 Note: In a decision from 2009 the Riga City Vidzeme Municipality Court did not recognise that a conflict of interest existed in a situation where the management board member concluded an agreement with a company owned by him. The court argued that the Commercial Law does not prohibit the management board member from entering into agreements with a related company.

136 Directors’ Duties and Liability in the EU

		must notify other	interest → a		resigning	ambiguous
		members of the	director must		directors. Usually	(requires directors
		board or	avoid a situation		non-competition	to avoid conflicts
		shareholders	where his		clauses are	of interest or act in
		about any	personal interests		included in the	accordance with
		circumstances	conflict with the		contract that apply	the articles and
		where his/her	interests of the		after resignation.	the decisions of
		personal interests	company; this			other corporate
		conflict, or may	includes the			bodies).
		conflict, with the				Literature: duty to
			obligation not to
		interests of the				act for the benefit
			use the property
		company				of the company,
			or information that
						its shareholders,
		2) Civil Code, Art.	he/she obtains in
						creditors,
		2.87(6): directors	the capacity of a
						employees and
		may enter into a	director for
						the public welfare
		contract with the	personal gain
		company, but they	(note: no case law			2) Duty to act in
		must notify the	on this issue; a			good faith
		other corporate	systematic			3) Duty to avoid
		bodies or	interpretation of
						commingling the
		shareholders of	the Civil Code
						property of the
		the contract (if	would lead to the
						company and
		there is a collegial	conclusion that
						private property
		management	the director can
						(all Civil Code,
		body then the	pursue a business
						Art. 2.87)
		notification is	opportunity that
		usually made to	he acquired in a
		such body; if there	personal capacity
		is only a	as long as his
		managing director	personal interests
		then shareholders	do not conflict with
		must be notified)	the interests of the
		3) No approval	company) without
			the consent of the
		requirements.
			shareholders.
		Failure to disclose
		the conflict results	If the opportunity
		in the invalidity of	does not fall within
		the contract (3K-	the company’s
		3-557/2009).	line of business, it
		4) The conflicted	may be
			considered not to
		director must
			be against the
		abstain from the
			interests of the
		decision-making,
			company
		Art 35(6) of the
			(however, usually
		Law on
			the articles state
		Companies: A
			that the company
		director is not
			is interested in
		entitled to vote
			pursuing any type
		when the board
			of economic
		discusses issues
			activity that is not
		related to his work
			prohibited by law)
		or his
		responsibility.	2) See Art. 2.87(5)
			(left)
Luxembourg		Companies Act,	Not regulated		Not regulated	Companies Act,
		Art. 57: duty to				Art. 66: duty of
		declare conflict of
			137	Directors’ Duties and Liability in the EU

		interest in a				confidentiality
		transaction
		submitted for
		approval to the
		board, unless the
		transaction falls
		within the scope
		of the company’s
		current operations
		and is entered into
		under normal
		conditions.
		The director may
		not take part in
		the decision-
		making. In
		addition, the
		conflict of interest
		must be reported
		to the next
		general meeting
		of shareholders.
Malta		Art. 136A(3)(c):	1) Art. 136A(3)(d):		It is argued by the	1) Duty to act
		duty of directors to	Duty not to use		literature that the	honestly and in
		ensure that their	any property,		corporate	good faith in the
		personal interests	information or		opportunities	best interests of
		do not conflict with	opportunity of the		doctrine	the company, Art.
		the interests of the	company for their		developed by the	136A(1):
		company.	own or anyone		English courts	subjective
		Conflicted interest	else’s benefit, nor		should apply, but	standard,
			obtain benefit in		no case law exists	directors must
		transactions are
			any other way in			have honestly
		only valid under
			connection with			believed to act in
		the following
			the exercise of			the best interests
		conditions:
			their powers,			of the company
		1) The director
			except with the			2) Duty not to
		must declare the
			consent of the
						make secret or
		nature of the
			company in
						personal profits
		conflict to the
			general meeting
						from their position
		other directors at
			or except as
						without the
		the first meeting at
			permitted by the
						consent of the
		which he/she
			company’s
						company, nor
		knows about the
			memorandum or
						make personal
		potential conflict,
			articles of
						gain from
		Art. 145(1)
			association
						confidential
		2) Model articles:
			2) Art. 143(1):			information, Art.
		the director must
			duty not to			136A(3)(b)
		not vote at the
			compete with the			3) Duty to act
		board meeting
			company → only
						within powers and
		deciding on the
			applies to
						not for an
		conflicted
			activities actually
						improper purpose,
		transaction (but
			performed by the
						Art. 136A(3)(e)
		the articles or the
			company, or
		GM can provide
			which could
		for a different rule
			reasonably be
		and allow the
			foreseen to be
		director to vote)
			undertaken by the
			138	Directors’ Duties and Liability in the EU

			company in the
			near future.
			Authorisation can
			be given by the
			company in GM
Netherlands		- Law as of	- No statutory		The duty to	-
		January 1, 2013:	regulation (but		properly manage
		prohibition of	see Corporate		the company (s.
		directors who	Governance		2:9) is no longer
		have a direct or	Code, II.3.1(d))		applicable; but
		indirect interest in	- Legal literature:		general principles
		a transaction to			of tort law
			a business
		participate in the			continue to apply
			opportunity is a
		decision-making
			corporate
		process regarding
			opportunity if the
		that transaction. If
			company has a
		as a result of the
			reasonable
		prohibition no
			interest in the
		board resolution
			opportunity (test:
		can be passed,
			connection with
		the supervisory
			the activities of
		board decides.
			the company)
		- If the director	- Courts: have
		does not comply
			held directors who
		with these
			usurped corporate
		requirements: the
			opportunities
		director is liable
			liable for starting a
		for breach of the
			competing
		duty to properly
			company (based
		manage the
			on ss. 2:8, 2:9)
		company (s. 2:9),
			- In addition,
		provided that his
			possibly violation
		fault is personal
			of a non-
		and sufficiently
			competition
		serious
			provision in the
		- Definition of
			employment
		conflict of interest:
			contract of the
		if the director as a
			director
		result of (i) a
		personal conflict
		of interest or (ii)
		an indirect interest
		in the transaction
		(e.g. family
		interest or interest
		in another
		company) cannot
		be expected to
		protect the
		interests of the
		company as
		should be
		expected of an
		unbiased director
Poland		Art. 377: In the	Art. 380(1):		Duties no longer	-
		event of a direct	- A member of the		apply (except the
			139	Directors’ Duties and Liability in the EU

		or indirect conflict	management		duty of
		of interest	board shall not,		confidentiality)
		between the	without consent of
		company and a	the company,
		management	involve himself in
		board member (or	a competitive
		the member’s	business, nor
		spouse and other	shall he be
		close relatives)	director in a
		the management	competing
		board member	company or 10%
		shall abstain from	shareholder
		participating in	- Consent is given
		deciding such
			by the supervisory
		matters
			board
		2) Art. 379: in a
		contract between
		the company and
		a management
		board member,
		the company shall
		be represented by
		the supervisory
		board
Portugal		1) Art. 397(1): the	Business		1) A director was	Duty of non-
		company is	opportunities		held liable for	competition, Art.
		prohibited to enter	doctrine: not		breach of duty	398(3): the
		into loan or other	codified, but		who set up a	directors shall not
		credit agreements	developed in		competing	exercise any
		with directors or to	analogy to Arts.		enterprise with	activity competing
		pay in advance	254, 398(3), 428		facilities next to	with the company,
		remuneration for	by the literature		the first company	unless the GM
		more than one	1) Directors are		while holding	gives its
		month			office. He did so	authorisation.
			prohibited from
					by using
		2) Art. 397(2):	taking advantage			Competing
					information
		transactions	of business			activity: any
					regarding clients,
		between the	opportunities			activity that falls
					prices and
		company and a	without the			within the
					employees
		director are void	consent of the GM			corporate objects
					obtained during
		unless:	or the general and			of the company,
					the performance
		a) prior	supervisory board			provided that it is
					of his duties. The
						actually performed
		authorisation by	2) An opportunity
					court held that the
						by the company,
		the board (the	belongs to the
					director was liable
						Arts. 398(5),
		conflicted director	company if it falls
					because of the
						254(2)
		must abstain from	within its scope of
					unlawful use of
		voting)	activity, the
					information
			company has an
		b) assent of the			received when he
			objectively
		supervisory board			was a director in
			relevant interest in
		or audit board			favour of the new
			the opportunity, or
		c) disclosure in			company
			has expressed its
					incorporated by
		the annual report
			interest and
					him
		OR: no	received a
					2) No rules or
		authorisation or	contractual
					case law on
		other	proposal or is in
					directors who
		requirements if	negotiations
					resign to exploit
		the transaction is
			140	Directors’ Duties and Liability in the EU