This is the translation of the article: Responsabilità dell’amministratore di S.r.l.: evoluzione normativa e strumenti di tutela
By Leonardo Arienti (2025 update)
1. Introduction
Italina Legislative Decree No. 14 of 12 January 2019 (the “Business Crisis and Insolvency Code”), as amended by Legislative Decree No. 83/2022, has significantly reformed the regulation of directors’ duties and liabilities in capital companies, with particular impact on limited liability companies (S.r.l.).
The legislative intervention anticipated the early detection of business crisis and the safeguarding of business continuity, introducing more stringent obligations and broader liabilities.
The reforms have been effective since 16 March 2019 and particularly impact Articles 2086, 2475, 2476, and 2486 of the Italian Civil Code.
At the heart of the reform lies the increasing accountability of the management body, now required to ensure conscious, well-documented management consistent with the economic and organisational structure of the company.
2. Organisational Structures and Management Duties
Article 2086, paragraph 2, of the Italian Civil Code requires the management body to adopt an adequate organisational, administrative and accounting structure, suitable not only for ordinary management but also for the timely detection of crisis and the loss of business continuity. In the presence of distress signals, directors must act without delay, making use of the tools provided by the Crisis Code, such as negotiated settlement, restructuring agreements and certified plans.
3. Personal Liability and Asset Protection
Article 2476, paragraph 6, as amended by Legislative Decree 14/2019, introduced direct liability of directors towards corporate creditors in the event of breach of duties aimed at preserving the company’s equity integrity.
Such liability arises from actions or omissions that worsen the financial situation of the company to the detriment of creditors.
All directors in an S.r.l. are jointly liable to the company for obligations undertaken towards third parties.
Creditors can bring a direct liability action without prior enforcement against the company. The action is based on an objective prerequisite: the inadequacy of company assets to cover total debts. Breach may consist of managerial inactivity (e.g. failure to timely detect crisis status), imprudent decisions or omissions (e.g. taking on unsustainable obligations or failing to initiate crisis resolution procedures).
Good faith of the director is irrelevant for the purpose of liability: what matters is the breach of legal obligations aimed at safeguarding equity. Creditors can bring the action even if the company waives it, and may challenge prejudicial transactions via revocatory action.
This framework significantly increases directors’ exposure, aligning it with that of directors in joint stock companies, making it essential to adopt a management approach based on adequate organisation, information flow control and timely crisis response.
Liability is no longer limited to pathological business phases, but extends to the entire management process. Passive behaviour or failure to act now constitutes an autonomous source of liability. In this context, asset protection becomes a critical part of advance planning and a tool to ensure continuity of the business while protecting creditors’ rights.
4. Relevant Case Law
Case law has consistently held that directors’ liability towards corporate creditors does not require proof of fraud or gross negligence, but is based on breach of legal obligations and the ordinary diligence of a mandatary.
Cass. civ., Sec. I, Order, 15/03/2025, No. 6925
In terms of directors’ liability, directors must prove they took all precautions, checks and prior information normally required to make prudent and diligent decisions, failing which they incur non-contractual liability under Article 2476, paragraph 6, of the Civil Code.
Cass. civ., Sec. I, Order, 22/04/2024, No. 10742
In terms of directors’ liability, directors are liable for the resulting inadequacy of company assets to satisfy creditor claims according to mandatary diligence, taking into account any failure to adopt precautions, checks, and prior information normally required for such decisions and the diligence shown in assessing risks.
Cass. civ., Sec. I, Judgment, 26/01/2018, No. 2038
Joint liability of S.r.l. directors for damages resulting from breach of statutory and constitutional duties does not amount to strict liability. Exemption requires not mere dissent recorded in board minutes, but actual absence of any culpable conduct.
5. Liability of Directors
The liability of directors under Article 2476, paragraph 6, is tortious and arises when breach of management duties harms creditors’ interest in preserving the company’s assets as general security.
The strengthening of the equity preservation duty has significantly redefined directors’ liability in relation to creditors.
Case law confirms an increasingly prescriptive approach, presuming breach and facilitating creditor actions, thus raising the diligence threshold for directors.
6. Presumed Damage and Net Asset Criterion
Article 2486 of the Civil Code presumes recoverable damage to be equal to the difference between net assets at the time of the director’s termination (or insolvency opening) and those at the moment the dissolution cause arose.
In absence of reliable accounting, damage can be determined based on the difference between recorded assets and liabilities.
7. Reflections on Expanding Liability
Directors now operate in a stricter regulatory framework and a structurally unstable business environment.
Expectations have grown: from mere managers to stewards of continuity, even amid systemic uncertainty. Directors must ensure an organisational structure able to prevent and manage crisis.
Omissive liability, i.e., liability for failing to trigger crisis warnings or detect early signs of distress, has become a concrete risk, regardless of actual insolvency.
Even failure to adopt the organisational measures under Article 2086, paragraph 2, or to monitor asset adequacy, can trigger personal liability, even without fraud.
8. Personal and Unlimited Liability on Assets
Case law supports the view that directors’ liability is personal and financial, even without fraudulent intent. Failure to exercise management functions diligently is sufficient.
Thus, liability no longer stems solely from corporate collapse but covers the entire company life cycle. Directors must constantly monitor financial balance and act preventively.
The imperative is to “plan and prevent to avoid liability”. Directors may be held liable for all proven damages, without limitation.
This expansion of liability calls for a systemic approach: sound governance, documented decision-making and proactive use of personal and corporate asset protection tools.
9. Asset Planning as a Protection Strategy
Given the high exposure to liability, strategic personal and family asset planning is vital.
Preventive planning allows directors, often also entrepreneurs, to protect their personal and family assets using lawful and recognised asset protection instruments.
10. Conclusion
Today’s legal framework requires a professional, transparent and documented approach to company management.
The director is no longer merely a manager, but a planner and protector, exposed to potentially unlimited liability extending to personal and family assets.
This makes it essential to consider legal instruments for asset protection and planning, such as trusts, fiduciary administration with a fiduciary company, family assets and destination restrictions.
