Corporate governance and directors’ information duties

Legislative Decree No. 208 of 31 December 2025, published in the Official Gazette on 8 January 2026 and entered into force on 9 January 2026, significantly affects the corporate governance system, strengthening the information duties of management bodies and, consequently, the liability safeguards connected with the traceability and quality of the decision-making process.

The distinctive feature of the reform is not so much the introduction of new categories of liability, but rather the raising of the expected standard: increasingly, the “defence” of the management body does not turn on the merits of the business decision, but on demonstrating that the decision was taken following adequate preliminary analysis, complete information flows and reasoning consistent with the corporate interest. In other words, the documentary and procedural framework becomes an integral part of the professional diligence required of directors.

The decree broadens and clarifies the scope of disclosure, with specific regard to extraordinary transactions, actual or potential conflicts of interest, as well as intra-group relationships and related-party transactions.

This is where a concrete risk, often underestimated in practice, arises: incomplete or untimely information does not merely give rise to a “governance” issue, but may form the basis for claims concerning management liability, especially where the transaction has a significant financial impact or redistributive effects among categories of shareholders, group companies or related parties.

Although the reform does not expressly amend the Civil Code provisions governing directors’ liability under Articles 2392 et seq. of the Italian Civil Code, it substantially affects the scope of the duty of diligence, insofar as failure to comply with information duties may be relied upon as evidence of inadequate preliminary analysis, lack of decision-making traceability or absence of enhanced reasoning in the most significant resolutions.

From a prudential perspective, this means that litigation — or even internal control challenges — will tend to shift from the “merits” of the decision to “how” the decision was taken: who was informed, on the basis of which data, which alternatives were assessed and with what reasoning.

Also of particular interest is the systemic effect on limited liability companies, in relation to which there is a progressive convergence towards control standards typical of joint-stock companies, with operational implications for organisational structures, information flows and, more generally, the company’s ability to demonstrate effective risk oversight, including in intra-group relationships.

In this area, the risk is twofold: on the one hand, the adoption of safeguards that exist only formally; on the other, the absence of a culture of proper recording and traceability, which becomes decisive in conflict situations, whether among shareholders, with creditors or in the context of liability claims.

From an operational standpoint, companies are required to implement adjustments that cannot be merely documentary: the updating of articles of association and internal regulations, corporate governance procedures, organisational models and control systems must translate into a substantive review of decision-making practices and information flows, consistent with the principle of enhanced reasoning and the need to make the preliminary analysis verifiable.

Failing this, the adjustment risks producing a paradoxical effect: multiplying “paperwork” without actually increasing oversight, thereby exposing the management body to liability that may be more easily challenged precisely because of the gap between internal rules and actual practice.