!Корпоративное право 2023-2024 / 2013-study-analysis_en

competition), but it

derives from

general fiduciary

principles

Greece

- The duty of

-

-

Application of the

loyalty can be

general principle

derived from Art.

of good faith and

22a(3): directors

the prohibition of

have a duty to

abusive behaviour

manage corporate

laid down in Art.

assets in the best

288 Civil Code

interests of the

company; this

encompasses the

requirement to

avoid any action

that could conflict

with the corporate

interests or

obstruct the

corporate

objectives

- In addition,

specific aspects of

the duty of loyalty

are expressly

regulated, e.g.

non-competition

(Art. 23) or related

party transactions

(Art. 23a)

Hungary

The general duty

Principles of

-

-

of loyalty is not

general civil law

regulated in the

apply (law of

Companies Act,

service

only certain cases

contract/breach of

of conflicts of

contract)

interest

Ireland

Generally no, but

Yes, comprising

-

-

some rules in Part

three elements:

3 of the

1) duty to act in

Companies Act

the best interest of

1990

the company

2) duty to act for

proper purposes

3) duty to avoid

conflicts of

interests and

secret profits

Italy

1) General duty to

-

-

-

act in good faith

when fulfilling

contractual

obligations, Arts.

1175, 1375 Civil

121

Directors’ Duties and Liability in the EU

Code

2) Self-dealing,

Art. 2391 Civil

Code

3) Corporate

opportunities, Art.

2391(5) Civil

Code

Latvia

Some aspects of

Yes, derived from

-

-

the duty of loyalty

the law of agency

regulated in the

(Civil Code, s.

Commercial Law,

2304) and the

e.g. the duty to

fiduciary nature of

disclose conflicts

the director’s role

of interest (s.

as an agent

309(3))

Lithuania

Yes, Civil Code,

-

-

-

Art. 2.87:

1) duty to act in

good faith

2) duty of loyalty

3) duty to avoid

conflicts of

interest

4) duty to avoid

commingling the

property of the

company and

private property

5) duty to declare

interest in

proposed

transactions

Luxembourg

Some aspects of

General duty of

-

-

the duty of loyalty

loyalty derives

regulated in the

from the position

Companies Act,

of the director, the

e.g. the duty to

agency

disclose conflicts

relationship

of interest (Art.

between the

57)

director and the

company, Art. 59

Companies Act,

and Art. 1134 Civil

Code (duty of

parties to a

contract to

execute their

obligations under

the contract in

good faith)

Malta

Yes, Companies

General fiduciary

-

-

Act, Art. 136A:

obligations laid

1) Duty to act

down in the Civil

122

Directors’ Duties and Liability in the EU

honestly and in

Code also apply,

good faith in the

but they largely

best interests of

overlap with Art.

the company, Art.

136A Companies

136A(1)

Act

2) Duty not to

make profits from

the position of

director, Art.

136A(3)(b)

3) Duty to ensure

that their personal

interests do not

conflict with the

interests of the

company, Art.

136A(3)(c)

4) Duty not to use

any property,

information or

opportunity of the

company for their

own benefit, Art.

136A(3)(d)

Netherlands

s. 2:146: in case

-

A director who is

-

the company has

prohibited from

a conflict of

acting because of

interest with one

a conflict of

or more directors,

interest (see left)

the company is

may be liable to

represented by its

third parties on

supervisory

the basis of tort

directors.

law (s. 6:162)

The conflicted

director who

nevertheless

represents the

company is liable

pursuant to s. 2:9

to the company

Poland

No, but some

The duty of loyalty

-

-

statutory

derives from the

provisions are

fiduciary

considered as

relationship

expressions of the

between the

duty of loyalty

company and the

(e.g., Arts. 15, 370

director and

Code of

provisions in the

Commercial

Code of

Companies).

Commercial

Liability for breach

Companies

of the duty of

prohibiting specific

loyalty is based on

types of action,

the general

e.g. the duty not

liability provisions

to compete with

of Art. 483 CCC or

the company

Art. 415 Civil

Code (tort law)

Portugal

Yes, Art. 64(1)(b)

-

-

-

Code of

Commercial

Companies

Romania

Yes, Art. 144

Initially fiduciary

-

-

Companies Act

principles arising

from the law on

agency, but since

2006 codified in

the Companies

Act

Slovakia

Derived from s.

-

-

-

194(5)

Commercial Code

Slovenia

Companies Act:

-

-

-

- General duty to

avoid conflicts of

interest and

regulation of

related party

transactions, Art.

38a

- Duty of non-

competition, Art.

41

- Confidentiality,

Art. 263(1)

Spain

Yes, regulated in

-

-

-

the LSC are:

1) General duty of

loyalty, s. 226

2) Prohibition to

use the company

name, s. 227

3) Prohibition to

take advantage of

business

opportunities, s.

228

4) Conflict of

interest, s. 229

5) Duty of non-

competition, s.

230

Sweden

The duty of loyalty

Not all of the

-

-

is set forth in the

duties of the

general clause of

directors can be

Ch. 8 § 34 in the

determined on the

Companies Act,

basis of the

providing that the

Companies Act.

board and the

The mandate of a

managing director

board member is

may not

accompanied by

undertake

the general duty

measures which

of loyalty towards

might provide an

the company.

undue advantage

to a shareholder

or other person to

the disadvantage

of the company or

another

shareholder.

United Kingdom

Now statutory

-

-

-

corporate law, in

particular:

1) Duty to avoid

conflicts of

interest, s. 175

2) Duty to declare

interest in

proposed

transaction, s. 177

Country

Requirements

Requirements

Resigning

Other

for self-dealing

for corporate

directors

behavioural

opportunities

expectations

Austria

The supervisory

s. 79: duty not to

s. 79 (non-

Confidentiality, s.

board represents

compete →

competition): duty

84(1) last

the company in

1) Members of the

generally ends

sentence: duty not

dealings with the

when the director

to reveal business

management

members of the

ceases to be a

secrets; this duty

board may not

management

director

extends beyond

operate another

board, s. 97 AktG

the end of the

business;

director’s term in

2) be member of

office

another

company’s

supervisory board;

3) be a personally

liable partner of

another business

association;

4) enter into

transactions in the

company’s line of

business;

--unless

authorised by the

supervisory board

(authorisation in

the articles or by

shareholder

resolution not

sufficient)

Belgium

Art. 523 CC:

- No specific

- The duty of

Duty to act in

1) Ex ante

corporate

loyalty ends when

good faith, which

opportunities

the service

also gives rise to

disclosure to the

regulation in the

contract ends.

the duty not to

board and auditor

Companies Code.

However, non-

compete and the

2) The conflicted

The literature has

compete clauses

duty of

director does not

may be construed

confidentiality

developed a

need to abstain

to apply after

corporate

from voting,

resignation.

opportunities

unless the

doctrine based on

- Resignation can

company has

the general duty

in itself be a basis

issued securities

to act in good faith

for liability if it is

to the public

(which comprises,

given in an

(which includes

for directors, a

untimely and

listed companies)

duty of loyalty)

harmful way, but

3)

and inspired by

no case law exists

Anglo-Saxon tests

on this point

Notwithstanding

(business line,

compliance with

etc.), but opinion

Art. 523, liability is

differs as to the

triggered if the

exact scope of the

transaction results

doctrine and there

in an ‘abusive’ or

is no established

‘excessive’

case law.

advantage to the

director (e.g.,

- Enforcement has

misuse of assets),

to rely on the

Art. 529 CC

general rules of

Art. 527 CC

- Possibly

application of the

conflicts of

interest regime or

the prohibition of

‘abuse of

company assets’

Bulgaria

s. 240b:

1) Duty of non-

Only the duty of

1) Disclosure of

1) Directors must

competition, s.

confidentiality

conflicts of

237(4):

applies after

interest, s. 237(3):

inform in writing

resignation

A person

the board of

- Directors shall

nominated as

directors (or the

not execute

director must,

management

business

prior to his

board in two-tier

transactions or

election, notify the

systems) when

participate in

general meeting

they (or related

companies as

or the supervisory

persons) enter

managers or

board of his

into a contract

board members if

participation in

with the company

this would

any companies as

that goes beyond

constitute a

an unlimited

its usual business

competitive

liability partner, of

or materially

activity

holding over 25

deviates from

- Competitive

per cent of the

market terms

activity: the

equity in any other

2) The board of

transaction must

company, and of

directors (or

fall within the

his participation in

management

actual line of

the management

board) decides

business of the

of other

about the

company; it is not

companies. When

conclusion of such

sufficient if it falls

these

contracts. The

within its

circumstances

interested director

objectives as

arise after the

cannot vote or

specified in the

election, the

participate in the

articles

director must

decision-making

- Exception: if the

issue a written

process.

articles of

notice

association allow

2) Confidentiality,

the competitive

s. 237(5)

activity expressly,

or the body which

elects the board

member has given

127

Directors’ Duties and Liability in the EU

its express

consent (this is in

one-tier systems

the GM and in

two-tier systems

the supervisory

board)

2) Very little case

law and no

developed

corporate

opportunities

doctrine

Croatia

Supervisory board

1) Prohibition of

Unclear

General unwritten

represents

competition, s.

duty of loyalty

company in

248: without the

dealings with the

consent of the

management

supervisory board,

board

a member of the

management

board cannot,

either for his

account or for the

account of others,

perform activities

pursued by the

PLC, act as a

member of the

management or

supervisory board

in another

company engaged

in business similar

to that of the PLC,

or use the PLC’s

premises to

conduct any

business. Without

such consent, the

director also

cannot be a

member of

another company

or be personally

liable for its

obligations if that

company

performs the

same activities as

the PLC in

question.

2) Directors are

required not to

use confidential

information,

acquired in the

course of their

128

Directors’ Duties and Liability in the EU

duty, for their

personal benefit

Cyprus

- s. 191 CA:

- Directors must

No provision

1) Duty to act in

directors who are

not make use of

under Cyprus law

good faith for the

directly or

the company’s

on the

benefit of the

indirectly

property or any

continuation of the

company and

interested in a

information and

duty of a director

exercise their

contract or

not to make use of

powers for the

opportunities

proposed contract

corporate

purposes for

which arise from

with the company

opportunities even

which they were

holding office

must declare the

after his

conferred:

- Cypriot courts

nature of their

resignation as

subjective test

may apply the

interest at a

director, or for the

2) Duty not to put

English

meeting of the

continuation of

themselves in a

precedents

board of directors;

any other

position where

s. 191 does not

director’s duty

their own interest

require the

after resignation

conflicts with the

interested director

interests of the

from abstaining

company: no

from voting, but

violation if the

the articles

company

commonly contain

consents after full

such a provision

and proper

- Failure to comply

disclosure

with s. 191

renders the

agreement

voidable, but it

may be accepted

by the company in

general meeting

Czech Republic

1) s. 196a(1), (2)

s. 196(1)

No rules dealing

Confidentiality, s.

Commercial

Commercial

with resigning

194(5)

Code: credit or

Code: duty not to

directors

loan contract with

compete →

directors; contract

directors shall not

securing the debts

carry on business

of directors; free-

activities in a

of-charge transfer

similar line of

of property from

business as the

the company to

company

directors require:

a) approval by GM

b) conclusion

‘under the

conditions usual in

trade’

2) s. 196a(3):

transfer of assets

for consideration

exceeding 10% of

the company’s

capital requires:

a) that the price is

determined by an

129

Directors’ Duties and Liability in the EU

expert; and

b) the GM gives

ex ante consent

Does not apply to

assets acquired in

the ordinary

course of

business

Denmark

s. 131: no

No corporate

Duties no longer

Confidentiality, s.

member of the

opportunities

apply

132

management may

doctrine under

participate in a

company law; only

transaction that

regulation: the

involves an

service contract

agreement

usually includes a

between the

non-competition

company and that

clause → contract