Part Four – The new role of the Board of Directors and the strategic direction function (Article 2380-bis and related provisions)

Part Four – The new role of the Board of Directors

The revision of Article 2380-bis of the Italian Civil Code and the new role of the BOD

Among the most significant changes introduced by Legislative Decree 47/2026 is the revision of Article 2380-bis of the Civil Code, a provision designed to reshape the role of the administrative body within the governance system. The legislator reaffirms the now well-established principle that the management of the company is the exclusive responsibility of the directors, but significantly broadens its scope, emphasising the strategic direction function and responsibility for establishing organisational structures. The administration of the company is no longer viewed as the mere implementation of shareholders’ meeting resolutions or day-to-day management, but as a function of corporate governance, called upon to ensure a balance between economic development, proper organisation and the protection of the interests involved in the company’s activities.

Here too, it is worth quoting the text of the provision, in the version in force since 29 April 2026, to appreciate precisely how the legislator has redefined the scope of managerial powers:

‘The management and organisation of the company, including the establishment of its organisational, administrative and accounting structure, are the exclusive responsibility of the directors, who carry out the operations necessary for the fulfilment of the company’s objects.

The management of the company may also be entrusted to non-shareholders.

Where entrusted to more than one person, the management is exercised collectively and the directors form a board.

If the articles of association do not specify the number of directors, but merely indicate a maximum and minimum number, the decision rests with the body responsible for appointing them.’

(Civil Code, Article 2380-bis – Management of the company, text in force from 29 April 2026)

The new provision places the board of directors at the centre of corporate strategy-making: decisions on the organisation of the company, industrial policy, the management of key risks and the assessment of the adequacy of organisational structures remain within the remit of the board, even where part of the operational functions has been delegated to one or more directors. In this context, collective decision-making is not merely a procedural formality, but a tool to encourage the exchange of different expertise and improve the quality of decisions through the sharing of information and assessments amongst all board members.

An important point, further clarified by a number of in-depth analyses published following the decree’s entry into force, concerns the fate of the former Article 2381 of the Civil Code, which, prior to the reform, provided a unified framework governing delegations of authority, information flows and the allocation of management responsibilities within the board of directors. Legislative Decree 47/2026 has divided this provision into three separate provisions, to make the structure of information flows clearer and more operational: Article 2381 of the Civil Code, now reserved solely for the chair of the administrative body; Article 2381-bis of the Civil Code, dedicated to the delegation of functions; and Article 2381-ter of the Civil Code, specifically concerning information to the board.

The new Article 2381-bis of the Civil Code regulates delegations of management powers independently, stipulating that it is the board’s responsibility to expressly determine their content, limits and manner of exercise, as well as to issue directives to the delegated bodies and to assume responsibility for transactions even where these fall within the scope of the delegation granted. The provision also specifies certain matters that cannot be delegated: according to specialist sources, these include the preparation of the draft financial statements, merger transactions, increases or reductions in share capital, and decisions on access to crisis and insolvency resolution mechanisms – matters which cannot be left solely to the discretion of the chief executive or individual members of the management body, but require a collective assessment. Finally, the bodies to which powers have been delegated are required to report periodically to the board on the transactions carried out and on foreseeable developments in the management of the company, so as to ensure a flow of information that provides all directors with a greater level of awareness.

The delegation of powers is undoubtedly a tool for organisational efficiency, but it does not in any way entail the transfer of strategic responsibility from the board as a whole to the delegates: managing directors operate within the framework of the guidelines set by the board, which retains the responsibility to constantly assess the performance of the business, verify the adequacy of organisational structures and intervene whenever situations arise that could affect the company’s economic, equity or financial stability. The directors’ responsibility therefore remains a collective one and presupposes the effective participation of all board members in the most significant decisions.

Finally, the reform places particular emphasis on organisational, administrative and accounting structures, which are now regarded as an integral part of the management function: management also involves designing and maintaining an organisation commensurate with the scale, nature and complexity of the activities carried out, with a forward-looking approach that requires constant adaptation in response to changes within the company, in the market and to the emergence of new operational and financial risks. In this regard, the decree has introduced, through the new Article 2396-quinquies of the Civil Code, an explicit duty for the supervisory body to oversee the internal control and risk management system and the coordination of corporate functions; Article 2393 of the Civil Code, concerning liability actions against directors, has instead been rewritten in a more analytical manner, whilst leaving the five-year limitation period unchanged; meanwhile, the power of the board of statutory auditors to bring such an action with a two-thirds majority of its members has been transferred to the new and separate Article 2396-terdecies of the Civil Code. For the sake of completeness, it should be noted that some commentators have highlighted a lack of regulatory coordination regarding limited liability companies: Article 2475, paragraph 4, of the Civil Code continues, in so far as it is compatible, to refer to Article 2381 of the Civil Code, without this reference having been updated to take account of the splitting of the provision into the new Articles 2381-bis and 2381-ter; according to these commentators, this gives rise to an interpretative doubt as to whether the new rules on delegated powers and information flows apply directly to the limited liability company (s.r.l.) model as well.