Liability of statutory auditors and limits on damages: the Court of Cassation excludes the retroactive application of the reform of Article 2407 of the Italian Civil Code

By judgment No. 1390 and order No. 1392 of 22 January 2026, the Italian Court of Cassation ruled on the scope of application of the reform of Article 2407, paragraph 2, of the Italian Civil Code, introduced by Law No. 35 of 14 March 2025, clarifying that the new limits on the liability for damages of statutory auditors do not apply to facts occurring before the reform entered into force.

As is well known, the 2025 reform introduced a quantitative limit on the liability of members of the board of statutory auditors, providing — in cases other than wilful misconduct — for a maximum cap on damages calculated as a multiple of the annual remuneration received. The issue submitted to the Court concerned the possibility of applying that limit also to proceedings already pending at the date on which the reform entered into force, or to conduct predating it.

The Supreme Court ruled out that possibility, holding that the new rules cannot operate retroactively. According to the Court, the legislative amendment affects the quantitative determination of the recoverable damage and, therefore, cannot be applied to legal situations that had already been perfected before the reform entered into force.

The decision follows the constitutional line of authority on ius superveniens, according to which the introduction of a limit on damages cannot retroactively affect claims that have already arisen or legal actions that have already been brought. A different interpretation would undermine the legitimate expectations of those who have brought proceedings to obtain compensation for damage, and would also create an unjustified difference in treatment compared with directors held jointly and severally liable in the same corporate matters.

The ruling comes in a case-law context that has not been free from interpretative uncertainty. In some first-instance decisions, the possibility had been suggested of applying the new liability limit also to pending proceedings, relying on the moment of judicial assessment of damages as the decisive stage for the application of the new rules. Other courts had instead taken the opposite view, classifying the provision as substantive in nature and therefore not capable of retroactive application.

The position adopted by the Court of Cassation therefore appears to favour a prudent interpretation of the reform, aimed at preserving the balance between the protection of the injured party and the liability of corporate control bodies. From an operational perspective, the decision recalls that the limit introduced by the legislature does not amount to a general mitigation of the liability regime applicable to statutory auditors, but applies exclusively to conduct occurring after the reform entered into force.

For professionals holding corporate control offices, the ruling highlights an often underestimated aspect: the reform of Article 2407 of the Italian Civil Code does not eliminate the risk of liability for past conduct, nor does it affect proceedings already commenced. As a result, the liability of statutory auditors continues to be assessed, in such cases, under the previous regime, which did not provide for predetermined quantitative limits.