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			company are not
			sufficient to meet all
			debts, Art. 530 CC
			(requires serious fault,
			i.e. ‘inexcusable
			recklessness verging on
			fraud) → comblement de
			passif
			2) Liability to third parties
			based on tort law:
			general liability provision
			for negligent acts causing
			damage, Art. 1382 Civil
			Code
Bulgaria		Statutory law	1) Commercial Act:		The director’s mandate
			specific duties:		under s. 280 Obligations
			a) duty of care, s. 237(2)		and Contracts Act is
					interpreted as giving rise
			b) disclosure of conflicts
					to the general duties of
			of interest: s. 237(3)
					loyalty and to manage
			c) non-competition: s.		the company; s. 237(3)-
			237(4)		(5) are specific
			d) confidentiality: s.		expressions of the
					general duty of loyalty;
			237(5)
					when interpreting the
			e) regulation of related
					specific duties, the courts
			party transactions, s.
					do so in conjunction with
			240b
					the respective principles
			2) Public Offering of		of general private law
			Securities Act: s. 116b(1)		regarding the mandate
			lays down duties for
			directors of listed
			companies
			3) Director’s mandate: s.
			280 Obligations and
			Contracts Act
Croatia		Statutory law	Companies Act specifies		Duty of loyalty not
			duties:		provided for in the
			1) Duty of care, s. 252(1)		statute, but its existence
					is commonly accepted
			2) Confidentiality, s.
			252(1)
			4) Prohibition of
			competition, s. 248
			5) Other duties in ss.
			193, 251, 526
Cyprus		Partly case law, partly	Companies Act:		Not codified:
		statutory	1) Duty to avoid conflicts		1) Duty of skill and care
			of interest, s. 191		2) Duties of loyalty:
			2) Other specific duties,		a) to act in good faith for
			such as particular
					the benefit of the
			disclosure obligations
					company;
					b) to exercise powers for
					purposes for which they
			31	Directors’ Duties and Liability in the EU

					were conferred
					c) to make independent
					judgments
					d) to avoid conflicts of
					interest
Czech Republic		Statutory law	Commercial Code:		Exhaustive enumeration
			1) Follow instructions of		of duties in the
					Commercial Code, no
			the general meeting, s.
					common law duties
			194(4)
			2) Duty of care, s. 194(5)
			3) Confidentiality, s.
			194(5)
			4) Non-competition, s.
			196
			5) Conflict of interests, s.
			196a
Denmark		Statutory law	Companies Act:		Duties are found
			1) General provision for		throughout the
					Companies Act and vary
			liability: s. 361(1) →
					in degree in light of the
			directors who, in the
					pertinent company.
			performance of their
					Furthermore, the duties
			duties, have intentionally
					can be derived from the
			or negligently caused
					company’s articles of
			damage to the company,
					association, the
			shareholder, or third
					company’s rules of
			parties, are liable to pay
					procedure and the
			damages
					Danish corporate
			2) Risk management,
					governance
			internal control, and
					recommendations.
			information duties, s. 115
			3) Duty of loyalty only
			fragmentarily regulated:
			a) related party
			transactions, s. 131
			b) duty of confidentiality,
			s. 132
Estonia		Statutory law	1) Duty to act in good		Exhaustive
			faith, Civil Code, § 32
			Comprises:
			a) duty to share
			information
			b) equal treatment
			c) duty not to exercise
			voting rights in a way that
			is detrimental to the
			company or its members
			2) Duty of care, Civil
			Code, § 35; Commercial
			Code, § 315(1)
			Comprises:
			32	Directors’ Duties and Liability in the EU

			a) duty to be diligent
			b) duty to be sufficiently
			informed for making
			decisions
			c) duty to restrain from
			taking unnecessary risks
			3) Duty of loyalty, Civil
			Code, § 35
Finland		Statutory law (case law is	1) Companies Act:		Ch. 1, s. 8 is interpreted
		used as a reference in	a) Chapter 1, s. 8:		as including an unwritten
		the literature and in			duty of loyalty
			general clause; duty of
		private practice when
			care and duty to promote
		interpreting the law)
			the interests of the
			company (includes
			loyalty to the company
			and shareholders);
			b) Chapter 1, s. 7: equal
			treatment of
			shareholders, typically
			but not exclusively
			applied in the context of
			the distribution of assets
			c) Chapter 6, s. 2: duty to
			see to the administration
			and organisation of the
			company
			d) basis of liability:
			- to the company for
			breaches of the duty of
			care: Ch. 22, s. 1(1)
			- to the company,
			shareholders or third
			parties for breaches of
			other provisions of the
			Companies Act: Ch. 22,
			s. 1(2)
			2) Non-competition and
			confidentiality are not
			specifically mentioned in
			the law, but are typically
			included in the
			agreements with
			directors
France		Partly statutory law,	Commercial Code: Art.		Also common law duties,
		partly general principles	225-251 for the one-tier		in particular with respect
			SA, 225-256, 257 for the		to the duty of loyalty
			two-tier SA
			According to 225-251
			and 256, directors are
			liable for:
			1) infringements of laws
			2) breaches of the
			articles
			33	Directors’ Duties and Liability in the EU

			3) mismanagement
			225-257: members of the
			supervisory board are
			liable for negligence in
			the discharge of their
			duties
Germany		Statutory law	1) Duty of care, s. 93(1),		General duty of loyalty
			sentence 1 Stock		not explicitly regulated,
			Corporation Act		but accepted by the
			2) Duty of confidentiality,		courts
			s. 93(1), sentence 3
			3) Duty of non-
			competition, s. 88
Greece		Statutory Law	Law 2190/1920:		Non-exhaustive
			1) General provision		enumeration: general
					fiduciary duty derived
			encompassing the duty of
					from the agency-
			loyalty and duty of care,
					relationship between the
			Art. 22a (dual nature: to
					director and the company
			achieve the objectives of
					and the principle of good
			the corporation with the
					faith stemming from the
			due diligence of a
					Civil Code.
			prudent businessman
			and not to use the		All agents have the
			position of director for		responsibility to promote
			personal benefits to the		the company’s
			company’s detriment)		performance and
			2) Duty of confidentiality,		maximise its market
					value.
			Art. 22a(3)
			3) Duty of non-
			competition, Art. 23
			4) Regulation of related
			party transactions, Art.
			23a
Hungary		Statutory law	1) General rules of the		No exhaustive
			Civil Code apply to the		enumeration of duties.
			liability of directors for		The general fiduciary
			breach of duty.		principles of the Civil
			2) The Companies Act		Code apply to define the
					duties of care and loyalty.
			specifies:
			a) certain cases of
			conflicts of interests
			b) duty not to disclose
			business secrets
			c) duty of non-
			competition
Ireland		Mainly case law,	1) Different types of		-
		supplemented by	common law and
		statutory rules on	equitable duties
		conflicts of interest	equivalent to those under
			English law:
			a) duty of care
			b) duty to act in the best
			34	Directors’ Duties and Liability in the EU

			interest of the company
			c) duty to act for proper
			purposes
			d) duty to avoid conflicts
			of interests and secret
			profits
			2) Companies Act 1990:
			additional rules in relation
			to loans to directors and
			substantial property
			transactions involving
			directors
			3) Companies Act 1963:
			rules on reckless trading
			and fraudulent trading
Italy		Statutory law	1) General clause from		Exhaustive enumeration,
			the Civil Code, Arts.		but the courts take an
			1175, 1375 (law of		active role in interpreting
			obligations): duty to act in		the existing law and filling
			good faith when fulfilling		gaps
			contractual obligations
			2) Self-dealing, Art. 2391
			Civil Code
			3) Corporate
			opportunities, Art.
			2391(5) Civil Code
			4) Duty of non-
			competition, Art. 2390
			Civil Code
			5) Duty of care, Art.
			2392(1) Civil Code
Latvia		Statutory law	1) The general duty to act		The duty of loyalty is not
			as a prudent and careful		explicitly regulated in
			manager is laid down in		company law; it follows
			Commercial Law 2000, s		from the law of agency
			169(1). Case law and the		(Civil Code, s. 2304) and
			legal literature interpret		the fiduciary nature of the
			the general principle to		director’s role as an
			give rise to:		agent.
			a) the duty to obey the		Elements:
			law, the articles of		1) Duty to act in the best
			association and decisions
					interests of the company
			of the general meeting
					2) Duty to act loyal
			b) the duty of care
					towards the shareholders
			elements (developed by		as an aggregate
			case law and the legal
			literature):
			- duty to employ an
			adequate level of skill
			and care
			- risks must be
			reasonable given the
			market circumstances
			35	Directors’ Duties and Liability in the EU

			- duty not to delay
			decision-making
			- duty to make well-
			informed decisions with
			an aim to reduce possible
			risks
			- duty to act
			independently
			2) Duty of non-
			competition, Commercial
			Law, s. 171
			3) Duty to disclose
			conflicts of interest,
			Commercial Law, s.
			309(3)
			4) Duty of confidentiality,
			Commercial Law, s. 19
Lithuania		Statutory law	Civil Code, Art. 2.87:		-
			1) Duty of care
			2) Duty to act in good
			faith
			3) Duty of loyalty
			4) Duty to avoid conflicts
			of interest
			5) Duty to avoid
			commingling the property
			of the company and
			private property
			6) Duty to declare
			interest in proposed
			transactions
Luxembourg		Statutory law	1) Art. 1382 Civil Code:		General duty of loyalty,
			general tort law provision		which derives from the
			2) Companies Act:		position of the director,
					the agency relationship
			a) Art. 57: duty to declare
					between the director and
			conflict of interest
					the company, Art. 59
			b) Art. 59(1) (one-tier		Companies Act (general
			board), Art. 60bis-10(1),		liability provision, see
			60bis-18(1) (two-tier		left), and Art. 1134 Civil
			board): liability for		Code (duty of parties to a
			contractual breaches or		contract to execute their
			management mistakes		obligations under the
			(breaches of the duty of		contract in good faith):
			care)		duty to exercise powers
			c) Art. 59(2) (one-tier		in the best interest of the
					company
			board), Art. 60bis-10(1),
			60bis-18(2) (two-tier
			board): liability for breach
			of the articles or the
			Companies Act
			d) Art. 66: duty of
			confidentiality
			36	Directors’ Duties and Liability in the EU

		e) Arts. 72-75: general
		information duties
		NOTE: Art. 59 constitutes
		the legal basis for liability
		for breaches of all duties
Malta	Mainly statutory law	Companies Act:	Directors’ duties are also
		1) Duty to act honestly	derived from general
			principles of law, in
		and in good faith in the
			particular the provisions
		best interests of the
			of the Civil Code on
		company, Art. 136A(1)
			agency relationships and
		2) Duty of care, Art.
			the fiduciary duties laid
		136A(3)(a)
			down in the Civil Code
		3) Duty not to make
		profits from the position
		of director, Art.
		136A(3)(b)
		4) Duty to ensure that
		their personal interests
		do not conflict with the
		interests of the company,
		Art. 136A(3)(c)
		5) Duty not to use any
		property, information or
		opportunity of the
		company for their own
		benefit, Art. 136A(3)(d)
		6) Duty to exercise the
		powers they have for the
		purposes for which the
		powers were conferred,
		Art. 136A(3)(e)
		7) Duty not to compete
		with the company, Art.
		143(1)
		8) Prohibition of making
		loans or payments for
		loss of office to directors,
		Art. 144
Netherlands	Mainly statutory law	1) Internal	Liability derives from the
		responsibilities:	statute, but the detailed
		a) s. 2:8(1): the corporate	requirements have been
			developed by case law
		organs must behave
		towards each other in
		accordance with what is
		required by standards of
		reasonableness and
		fairness
		b) s. 2:9: directors are
		responsible towards the
		legal person for a proper
		performance of the tasks
		assigned to them
		2) External liability (to the

37 Directors’ Duties and Liability in the EU

			shareholders or
			creditors): based on tort
			law and applied by the
			courts to hold directors
			liable, inter alia, in the
			following situations:
			- entering into obligations
			with a third party, whilst
			the director knew or
			should
			have known that the
			company would not be
			able to fulfil them
			- knowingly frustrating
			creditors’ claims
			- selective payment,
			frustrating a single
			creditor’s claim and
			benefiting another
			3) s. 2:138 Civil Code:
			liability in case of
			insolvency (lex specialis
			to general tort law)
			4) s. 2:139 Civil Code
			(lex specialis to general
			tort law): if the interim
			figures or the annual
			accounts misrepresent
			the condition of the
			company, the directors
			shall be liable to the
			shareholders or third
			parties for any loss
			suffered by them as a
			result thereof
			NOTE: while the statute
			distinguishes between
			liability according to s.
			2:9, s. 2:138, or tort law,
			it is increasingly argued
			in the literature that the
			three grounds have
			converged into the same
			standard of assessment
Poland		Partly statutory law,	1) Code of Commercial		Duty of loyalty not
		partly case law	Companies:		codified, but its existence
			a) duty to abstain from		is commonly accepted; it
					derives from the fiduciary
			deciding on conflicted
					relationship between the
			transactions, Art. 377
					company and the director
			b) duty of non-
					and provisions in the
			competition, Art. 380
					Code of Commercial
			c) duty of care, Art. 483		Companies prohibiting
			d) loan agreements and		specific types of action,
					e.g. the duty not to
			other transactions with
			38	Directors’ Duties and Liability in the EU

			the directors require the		compete with the
			consent of the GM, Art.		company
			15
			2) General tort law, Art.
			415 Civil Code: ‘whoever
			by his fault caused a
			damage to another
			person shall be obliged to
			redress it’
Portugal		Statutory law	Code of Commercial		Some duties that are not
			Companies:		expressly regulated in the
			1) Duty of care, Art.		statute are recognised by
					the courts as deriving
			64(1)(a)
					from the general duty of
			2) Duty of loyalty, Art.
					loyalty. Directors are
			64(1)(b)
					prohibited from:
			Liability for a violation of		1) enjoying advantages
			both duties exists
					from transactions
			pursuant to the rules laid
					between the company
			down in Art. 72
					and third parties
			3) Duty to disclose		2) using means or
			related party
					information of the
			transactions, Art. 397(2)
					company to their own
			4) Duty of non-		benefit
			competition, Art. 398(3)		3) revealing confidential
					information about the
					company
Romania		Statutory law	1) Art. 72 Companies		- Where the Companies
			Act: the duties and		Act does not contain any
			liability of directors are		regulation, the rules
			governed by general		under the New Civil Code
			agency law (i.e. the law		on agency (the mandate)
			on the mandate under		can be used to fill gaps
			the New Civil Code) and		(see left). In accordance
			the rules specifically		with the nature of the
			provided for in the		mandate as a fiduciary
			Companies Act		relationship, the rules
			2) Companies Act, Art.		arising under the
					mandate are described
			73: duty to fulfil all
					as fiduciary duties.
			obligations prescribed by
			law and the articles of		These include:
			association (e.g., duty to		a) duty to act in good
			observe the capital
					faith, Art. 14 (this duty is
			maintenance provisions,
					considered as the
			to keep company
					essence of the duty of
			records, etc.)
					loyalty)
			3) Formerly fiduciary		b) general duty of loyalty
			duties arising from the
					(Art. 803(2)),
			agency relationship
					encompassing the duties
			(mandate) between the
					of disclosure and of
			director and the
					confidentiality
			company, but since 2006
					- Dogmatically, breach of
			codified in the
					the mandate leads to
			Companies Act:
					contractual liability.
			a) duty of loyalty, Art.
			39	Directors’ Duties and Liability in the EU

			144(1), encompassing:
			- duty to treat the
			business of the company
			fairly and honestly
			- to act intra vires
			- to promote exclusively
			the interests of the
			company
			- to avoid conflicts of
			interest
			- to refrain from using
			corporate opportunities
			b) duty not to compete
			with the company, Art.
			15311
			c) duty of care, Art.
			144(1)
Slovakia		Statutory law	Commercial Code, ss.		Directors’ duties are not
			191-196a		exhaustively regulated in
			1) s. 194(5):		ss. 191-196a Commercial
					Code; in order to fill gaps,
			a) duty of care
					the rules on agency law
			b) duty to exercise		(ss. 566-576 Commercial
			powers in accordance		Code) apply pursuant to
			with the interests of the		s. 66(3)
			company / duty of loyalty
			c) duty of confidentiality
			2) Duty to act in good
			faith, s. 194(7)
			3) Duty of non-
			competition, s. 196
			4) Prohibition of certain
			transactions (regarding
			loans, credit, property
			etc.) with the director, s.
			196a
Slovenia		Statutory law	1) Companies Act (ZGD-		High Court of Ljubljana:
			1):		directors may not only be
			a) duty of care, Art.		liable on the basis of
					ZGD-1 rules on liability,
			263(1)
					but also because of a
			b) confidentiality, Art.
					breach of the agency
			263(1)
					agreement that exists
			c) regulation of related		between the company
			party transactions and		and the director
			general duty to avoid
			conflicts of interest, Art.
			38a
			d) duty of non-
			competition, Art. 41
			2) Directors’ duties with
			respect to the financial
			operations of the
			40	Directors’ Duties and Liability in the EU