!Корпоративное право 2023-2024 / 2013-study-analysis_en
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company are not |
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sufficient to meet all |
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debts, Art. 530 CC |
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(requires serious fault, |
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i.e. ‘inexcusable |
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recklessness verging on |
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fraud) → comblement de |
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passif |
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2) Liability to third parties |
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based on tort law: |
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general liability provision |
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for negligent acts causing |
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damage, Art. 1382 Civil |
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Code |
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Bulgaria |
Statutory law |
1) Commercial Act: |
The director’s mandate |
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specific duties: |
under s. 280 Obligations |
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a) duty of care, s. 237(2) |
and Contracts Act is |
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interpreted as giving rise |
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b) disclosure of conflicts |
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to the general duties of |
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of interest: s. 237(3) |
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loyalty and to manage |
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c) non-competition: s. |
the company; s. 237(3)- |
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237(4) |
(5) are specific |
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d) confidentiality: s. |
expressions of the |
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general duty of loyalty; |
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237(5) |
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when interpreting the |
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e) regulation of related |
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specific duties, the courts |
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party transactions, s. |
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do so in conjunction with |
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240b |
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the respective principles |
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2) Public Offering of |
of general private law |
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Securities Act: s. 116b(1) |
regarding the mandate |
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lays down duties for |
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directors of listed |
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companies |
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3) Director’s mandate: s. |
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280 Obligations and |
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Contracts Act |
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Croatia |
Statutory law |
Companies Act specifies |
Duty of loyalty not |
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duties: |
provided for in the |
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1) Duty of care, s. 252(1) |
statute, but its existence |
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is commonly accepted |
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2) Confidentiality, s. |
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252(1) |
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4) Prohibition of |
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competition, s. 248 |
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5) Other duties in ss. |
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193, 251, 526 |
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Cyprus |
Partly case law, partly |
Companies Act: |
Not codified: |
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statutory |
1) Duty to avoid conflicts |
1) Duty of skill and care |
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of interest, s. 191 |
2) Duties of loyalty: |
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2) Other specific duties, |
a) to act in good faith for |
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such as particular |
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the benefit of the |
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disclosure obligations |
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company; |
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b) to exercise powers for |
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purposes for which they |
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31 |
Directors’ Duties and Liability in the EU |
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were conferred |
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c) to make independent |
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judgments |
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d) to avoid conflicts of |
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interest |
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Czech Republic |
Statutory law |
Commercial Code: |
Exhaustive enumeration |
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1) Follow instructions of |
of duties in the |
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Commercial Code, no |
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the general meeting, s. |
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common law duties |
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194(4) |
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2) Duty of care, s. 194(5) |
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3) Confidentiality, s. |
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194(5) |
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4) Non-competition, s. |
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196 |
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5) Conflict of interests, s. |
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196a |
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Denmark |
Statutory law |
Companies Act: |
Duties are found |
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1) General provision for |
throughout the |
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Companies Act and vary |
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liability: s. 361(1) → |
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in degree in light of the |
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directors who, in the |
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pertinent company. |
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performance of their |
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Furthermore, the duties |
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duties, have intentionally |
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can be derived from the |
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or negligently caused |
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company’s articles of |
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damage to the company, |
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association, the |
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shareholder, or third |
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company’s rules of |
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parties, are liable to pay |
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procedure and the |
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damages |
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Danish corporate |
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2) Risk management, |
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governance |
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internal control, and |
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recommendations. |
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information duties, s. 115 |
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3) Duty of loyalty only |
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fragmentarily regulated: |
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a) related party |
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transactions, s. 131 |
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b) duty of confidentiality, |
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s. 132 |
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Estonia |
Statutory law |
1) Duty to act in good |
Exhaustive |
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faith, Civil Code, § 32 |
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Comprises: |
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a) duty to share |
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information |
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b) equal treatment |
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c) duty not to exercise |
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voting rights in a way that |
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is detrimental to the |
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company or its members |
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2) Duty of care, Civil |
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Code, § 35; Commercial |
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Code, § 315(1) |
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Comprises: |
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32 |
Directors’ Duties and Liability in the EU |
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a) duty to be diligent |
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b) duty to be sufficiently |
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informed for making |
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decisions |
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c) duty to restrain from |
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taking unnecessary risks |
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3) Duty of loyalty, Civil |
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Code, § 35 |
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Finland |
Statutory law (case law is |
1) Companies Act: |
Ch. 1, s. 8 is interpreted |
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used as a reference in |
a) Chapter 1, s. 8: |
as including an unwritten |
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the literature and in |
duty of loyalty |
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general clause; duty of |
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private practice when |
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care and duty to promote |
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interpreting the law) |
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the interests of the |
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company (includes |
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loyalty to the company |
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and shareholders); |
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b) Chapter 1, s. 7: equal |
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treatment of |
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shareholders, typically |
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but not exclusively |
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applied in the context of |
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the distribution of assets |
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c) Chapter 6, s. 2: duty to |
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see to the administration |
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and organisation of the |
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company |
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d) basis of liability: |
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- to the company for |
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breaches of the duty of |
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care: Ch. 22, s. 1(1) |
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- to the company, |
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shareholders or third |
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parties for breaches of |
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other provisions of the |
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Companies Act: Ch. 22, |
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s. 1(2) |
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2) Non-competition and |
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confidentiality are not |
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specifically mentioned in |
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the law, but are typically |
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included in the |
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agreements with |
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directors |
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France |
Partly statutory law, |
Commercial Code: Art. |
Also common law duties, |
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partly general principles |
225-251 for the one-tier |
in particular with respect |
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SA, 225-256, 257 for the |
to the duty of loyalty |
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two-tier SA |
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According to 225-251 |
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and 256, directors are |
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liable for: |
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1) infringements of laws |
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2) breaches of the |
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articles |
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33 |
Directors’ Duties and Liability in the EU |
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3) mismanagement |
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225-257: members of the |
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supervisory board are |
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liable for negligence in |
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the discharge of their |
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duties |
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Germany |
Statutory law |
1) Duty of care, s. 93(1), |
General duty of loyalty |
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sentence 1 Stock |
not explicitly regulated, |
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Corporation Act |
but accepted by the |
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2) Duty of confidentiality, |
courts |
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s. 93(1), sentence 3 |
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3) Duty of non- |
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competition, s. 88 |
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Greece |
Statutory Law |
Law 2190/1920: |
Non-exhaustive |
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1) General provision |
enumeration: general |
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fiduciary duty derived |
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encompassing the duty of |
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from the agency- |
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loyalty and duty of care, |
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relationship between the |
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Art. 22a (dual nature: to |
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director and the company |
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achieve the objectives of |
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and the principle of good |
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the corporation with the |
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faith stemming from the |
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due diligence of a |
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Civil Code. |
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prudent businessman |
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and not to use the |
All agents have the |
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position of director for |
responsibility to promote |
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personal benefits to the |
the company’s |
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company’s detriment) |
performance and |
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2) Duty of confidentiality, |
maximise its market |
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value. |
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Art. 22a(3) |
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3) Duty of non- |
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competition, Art. 23 |
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4) Regulation of related |
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party transactions, Art. |
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23a |
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Hungary |
Statutory law |
1) General rules of the |
No exhaustive |
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Civil Code apply to the |
enumeration of duties. |
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liability of directors for |
The general fiduciary |
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breach of duty. |
principles of the Civil |
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2) The Companies Act |
Code apply to define the |
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duties of care and loyalty. |
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specifies: |
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a) certain cases of |
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conflicts of interests |
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b) duty not to disclose |
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business secrets |
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c) duty of non- |
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competition |
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Ireland |
Mainly case law, |
1) Different types of |
- |
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supplemented by |
common law and |
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statutory rules on |
equitable duties |
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conflicts of interest |
equivalent to those under |
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English law: |
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a) duty of care |
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b) duty to act in the best |
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34 |
Directors’ Duties and Liability in the EU |
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interest of the company |
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c) duty to act for proper |
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purposes |
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d) duty to avoid conflicts |
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of interests and secret |
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profits |
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2) Companies Act 1990: |
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additional rules in relation |
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to loans to directors and |
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substantial property |
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transactions involving |
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directors |
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3) Companies Act 1963: |
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rules on reckless trading |
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and fraudulent trading |
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Italy |
Statutory law |
1) General clause from |
Exhaustive enumeration, |
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the Civil Code, Arts. |
but the courts take an |
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1175, 1375 (law of |
active role in interpreting |
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obligations): duty to act in |
the existing law and filling |
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good faith when fulfilling |
gaps |
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contractual obligations |
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2) Self-dealing, Art. 2391 |
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Civil Code |
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3) Corporate |
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opportunities, Art. |
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2391(5) Civil Code |
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4) Duty of non- |
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competition, Art. 2390 |
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Civil Code |
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5) Duty of care, Art. |
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2392(1) Civil Code |
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Latvia |
Statutory law |
1) The general duty to act |
The duty of loyalty is not |
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as a prudent and careful |
explicitly regulated in |
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manager is laid down in |
company law; it follows |
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Commercial Law 2000, s |
from the law of agency |
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169(1). Case law and the |
(Civil Code, s. 2304) and |
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legal literature interpret |
the fiduciary nature of the |
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the general principle to |
director’s role as an |
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give rise to: |
agent. |
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a) the duty to obey the |
Elements: |
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law, the articles of |
1) Duty to act in the best |
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association and decisions |
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interests of the company |
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of the general meeting |
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2) Duty to act loyal |
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b) the duty of care |
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towards the shareholders |
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elements (developed by |
as an aggregate |
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case law and the legal |
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literature): |
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- duty to employ an |
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adequate level of skill |
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and care |
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- risks must be |
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reasonable given the |
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market circumstances |
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35 |
Directors’ Duties and Liability in the EU |
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- duty not to delay |
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decision-making |
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- duty to make well- |
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informed decisions with |
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an aim to reduce possible |
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risks |
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- duty to act |
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independently |
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2) Duty of non- |
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competition, Commercial |
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Law, s. 171 |
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3) Duty to disclose |
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conflicts of interest, |
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Commercial Law, s. |
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309(3) |
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4) Duty of confidentiality, |
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Commercial Law, s. 19 |
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||
Lithuania |
Statutory law |
Civil Code, Art. 2.87: |
- |
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1) Duty of care |
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2) Duty to act in good |
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faith |
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3) Duty of loyalty |
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4) Duty to avoid conflicts |
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of interest |
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5) Duty to avoid |
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commingling the property |
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of the company and |
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private property |
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6) Duty to declare |
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interest in proposed |
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transactions |
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||
Luxembourg |
Statutory law |
1) Art. 1382 Civil Code: |
General duty of loyalty, |
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general tort law provision |
which derives from the |
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2) Companies Act: |
position of the director, |
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|
the agency relationship |
|
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a) Art. 57: duty to declare |
|
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between the director and |
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conflict of interest |
|
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the company, Art. 59 |
|
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b) Art. 59(1) (one-tier |
Companies Act (general |
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|
board), Art. 60bis-10(1), |
liability provision, see |
|
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60bis-18(1) (two-tier |
left), and Art. 1134 Civil |
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|
board): liability for |
Code (duty of parties to a |
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contractual breaches or |
contract to execute their |
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management mistakes |
obligations under the |
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(breaches of the duty of |
contract in good faith): |
|
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care) |
duty to exercise powers |
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c) Art. 59(2) (one-tier |
in the best interest of the |
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company |
|
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board), Art. 60bis-10(1), |
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60bis-18(2) (two-tier |
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board): liability for breach |
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of the articles or the |
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Companies Act |
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d) Art. 66: duty of |
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confidentiality |
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36 |
Directors’ Duties and Liability in the EU |
|
|
e) Arts. 72-75: general |
|
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|
information duties |
|
|
|
NOTE: Art. 59 constitutes |
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|
|
the legal basis for liability |
|
|
|
for breaches of all duties |
|
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|
|
Malta |
Mainly statutory law |
Companies Act: |
Directors’ duties are also |
|
|
1) Duty to act honestly |
derived from general |
|
|
principles of law, in |
|
|
|
and in good faith in the |
|
|
|
particular the provisions |
|
|
|
best interests of the |
|
|
|
of the Civil Code on |
|
|
|
company, Art. 136A(1) |
|
|
|
agency relationships and |
|
|
|
2) Duty of care, Art. |
|
|
|
the fiduciary duties laid |
|
|
|
136A(3)(a) |
|
|
|
down in the Civil Code |
|
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3) Duty not to make |
|
|
|
profits from the position |
|
|
|
of director, Art. |
|
|
|
136A(3)(b) |
|
|
|
4) Duty to ensure that |
|
|
|
their personal interests |
|
|
|
do not conflict with the |
|
|
|
interests of the company, |
|
|
|
Art. 136A(3)(c) |
|
|
|
5) Duty not to use any |
|
|
|
property, information or |
|
|
|
opportunity of the |
|
|
|
company for their own |
|
|
|
benefit, Art. 136A(3)(d) |
|
|
|
6) Duty to exercise the |
|
|
|
powers they have for the |
|
|
|
purposes for which the |
|
|
|
powers were conferred, |
|
|
|
Art. 136A(3)(e) |
|
|
|
7) Duty not to compete |
|
|
|
with the company, Art. |
|
|
|
143(1) |
|
|
|
8) Prohibition of making |
|
|
|
loans or payments for |
|
|
|
loss of office to directors, |
|
|
|
Art. 144 |
|
|
|
|
|
Netherlands |
Mainly statutory law |
1) Internal |
Liability derives from the |
|
|
responsibilities: |
statute, but the detailed |
|
|
a) s. 2:8(1): the corporate |
requirements have been |
|
|
developed by case law |
|
|
|
organs must behave |
|
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|
|
towards each other in |
|
|
|
accordance with what is |
|
|
|
required by standards of |
|
|
|
reasonableness and |
|
|
|
fairness |
|
|
|
b) s. 2:9: directors are |
|
|
|
responsible towards the |
|
|
|
legal person for a proper |
|
|
|
performance of the tasks |
|
|
|
assigned to them |
|
|
|
2) External liability (to the |
|
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|
|
|
37 Directors’ Duties and Liability in the EU
|
|
|
shareholders or |
|
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|
|
|
creditors): based on tort |
|
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|
|
law and applied by the |
|
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|
|
courts to hold directors |
|
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|
|
liable, inter alia, in the |
|
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|
|
|
following situations: |
|
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|
|
- entering into obligations |
|
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|
|
with a third party, whilst |
|
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|
|
the director knew or |
|
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|
|
should |
|
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|
|
have known that the |
|
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|
|
company would not be |
|
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|
|
able to fulfil them |
|
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|
|
- knowingly frustrating |
|
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|
|
creditors’ claims |
|
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|
|
- selective payment, |
|
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|
|
frustrating a single |
|
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|
|
creditor’s claim and |
|
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|
|
benefiting another |
|
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|
|
|
3) s. 2:138 Civil Code: |
|
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|
|
liability in case of |
|
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|
|
insolvency (lex specialis |
|
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|
|
to general tort law) |
|
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|
|
4) s. 2:139 Civil Code |
|
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|
|
(lex specialis to general |
|
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|
|
|
tort law): if the interim |
|
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|
|
figures or the annual |
|
|
|
|
|
|
accounts misrepresent |
|
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|
|
the condition of the |
|
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|
|
company, the directors |
|
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|
|
shall be liable to the |
|
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|
|
shareholders or third |
|
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|
|
parties for any loss |
|
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|
|
suffered by them as a |
|
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|
|
result thereof |
|
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|
|
NOTE: while the statute |
|
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|
|
distinguishes between |
|
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|
|
liability according to s. |
|
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|
|
2:9, s. 2:138, or tort law, |
|
|
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|
|
it is increasingly argued |
|
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|
|
in the literature that the |
|
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|
|
three grounds have |
|
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|
|
converged into the same |
|
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|
|
standard of assessment |
|
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|
|
|
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|
||
Poland |
Partly statutory law, |
1) Code of Commercial |
Duty of loyalty not |
|
||
|
|
partly case law |
Companies: |
codified, but its existence |
|
|
|
|
|
a) duty to abstain from |
is commonly accepted; it |
|
|
|
|
|
derives from the fiduciary |
|
||
|
|
|
deciding on conflicted |
|
||
|
|
|
relationship between the |
|
||
|
|
|
transactions, Art. 377 |
|
||
|
|
|
company and the director |
|
||
|
|
|
b) duty of non- |
|
||
|
|
|
and provisions in the |
|
||
|
|
|
competition, Art. 380 |
|
||
|
|
|
Code of Commercial |
|
||
|
|
|
|
|
|
|
|
|
|
c) duty of care, Art. 483 |
Companies prohibiting |
|
|
|
|
|
d) loan agreements and |
specific types of action, |
|
|
|
|
|
e.g. the duty not to |
|
||
|
|
|
other transactions with |
|
||
|
|
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|
||
|
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|
|
38 |
Directors’ Duties and Liability in the EU |
|
|
|
the directors require the |
compete with the |
|
|
|
|
|
consent of the GM, Art. |
company |
|
|
|
|
|
15 |
|
|
|
|
|
|
2) General tort law, Art. |
|
|
|
|
|
|
415 Civil Code: ‘whoever |
|
|
|
|
|
|
by his fault caused a |
|
|
|
|
|
|
damage to another |
|
|
|
|
|
|
person shall be obliged to |
|
|
|
|
|
|
redress it’ |
|
|
|
|
|
|
|
|
||
Portugal |
Statutory law |
Code of Commercial |
Some duties that are not |
|
||
|
|
|
Companies: |
expressly regulated in the |
|
|
|
|
|
1) Duty of care, Art. |
statute are recognised by |
|
|
|
|
|
the courts as deriving |
|
||
|
|
|
64(1)(a) |
|
||
|
|
|
from the general duty of |
|
||
|
|
|
2) Duty of loyalty, Art. |
|
||
|
|
|
loyalty. Directors are |
|
||
|
|
|
64(1)(b) |
|
||
|
|
|
prohibited from: |
|
||
|
|
|
|
|
|
|
|
|
|
Liability for a violation of |
1) enjoying advantages |
|
|
|
|
|
both duties exists |
|
||
|
|
|
from transactions |
|
||
|
|
|
pursuant to the rules laid |
|
||
|
|
|
between the company |
|
||
|
|
|
down in Art. 72 |
|
||
|
|
|
and third parties |
|
||
|
|
|
|
|
|
|
|
|
|
3) Duty to disclose |
2) using means or |
|
|
|
|
|
related party |
|
||
|
|
|
information of the |
|
||
|
|
|
transactions, Art. 397(2) |
|
||
|
|
|
company to their own |
|
||
|
|
|
|
|
|
|
|
|
|
4) Duty of non- |
benefit |
|
|
|
|
|
competition, Art. 398(3) |
3) revealing confidential |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
information about the |
|
|
|
|
|
|
company |
|
|
|
|
|
|
||
Romania |
Statutory law |
1) Art. 72 Companies |
- Where the Companies |
|
||
|
|
|
Act: the duties and |
Act does not contain any |
|
|
|
|
|
liability of directors are |
regulation, the rules |
|
|
|
|
|
governed by general |
under the New Civil Code |
|
|
|
|
|
agency law (i.e. the law |
on agency (the mandate) |
|
|
|
|
|
on the mandate under |
can be used to fill gaps |
|
|
|
|
|
the New Civil Code) and |
(see left). In accordance |
|
|
|
|
|
the rules specifically |
with the nature of the |
|
|
|
|
|
provided for in the |
mandate as a fiduciary |
|
|
|
|
|
Companies Act |
relationship, the rules |
|
|
|
|
|
2) Companies Act, Art. |
arising under the |
|
|
|
|
|
mandate are described |
|
||
|
|
|
73: duty to fulfil all |
|
||
|
|
|
as fiduciary duties. |
|
||
|
|
|
obligations prescribed by |
|
||
|
|
|
|
|
||
|
|
|
law and the articles of |
These include: |
|
|
|
|
|
association (e.g., duty to |
a) duty to act in good |
|
|
|
|
|
observe the capital |
|
||
|
|
|
faith, Art. 14 (this duty is |
|
||
|
|
|
maintenance provisions, |
|
||
|
|
|
considered as the |
|
||
|
|
|
to keep company |
|
||
|
|
|
essence of the duty of |
|
||
|
|
|
records, etc.) |
|
||
|
|
|
loyalty) |
|
||
|
|
|
|
|
|
|
|
|
|
3) Formerly fiduciary |
b) general duty of loyalty |
|
|
|
|
|
duties arising from the |
|
||
|
|
|
(Art. 803(2)), |
|
||
|
|
|
agency relationship |
|
||
|
|
|
encompassing the duties |
|
||
|
|
|
(mandate) between the |
|
||
|
|
|
of disclosure and of |
|
||
|
|
|
director and the |
|
||
|
|
|
confidentiality |
|
||
|
|
|
company, but since 2006 |
|
||
|
|
|
- Dogmatically, breach of |
|
||
|
|
|
codified in the |
|
||
|
|
|
the mandate leads to |
|
||
|
|
|
Companies Act: |
|
||
|
|
|
contractual liability. |
|
||
|
|
|
a) duty of loyalty, Art. |
|
||
|
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39 |
Directors’ Duties and Liability in the EU |
|
|
|
144(1), encompassing: |
|
|
|
|
|
|
- duty to treat the |
|
|
|
|
|
|
business of the company |
|
|
|
|
|
|
fairly and honestly |
|
|
|
|
|
|
- to act intra vires |
|
|
|
|
|
|
- to promote exclusively |
|
|
|
|
|
|
the interests of the |
|
|
|
|
|
|
company |
|
|
|
|
|
|
- to avoid conflicts of |
|
|
|
|
|
|
interest |
|
|
|
|
|
|
- to refrain from using |
|
|
|
|
|
|
corporate opportunities |
|
|
|
|
|
|
b) duty not to compete |
|
|
|
|
|
|
with the company, Art. |
|
|
|
|
|
|
15311 |
|
|
|
|
|
|
c) duty of care, Art. |
|
|
|
|
|
|
144(1) |
|
|
|
|
|
|
|
|
||
Slovakia |
Statutory law |
Commercial Code, ss. |
Directors’ duties are not |
|
||
|
|
|
191-196a |
exhaustively regulated in |
|
|
|
|
|
1) s. 194(5): |
ss. 191-196a Commercial |
|
|
|
|
|
Code; in order to fill gaps, |
|
||
|
|
|
a) duty of care |
|
||
|
|
|
the rules on agency law |
|
||
|
|
|
|
|
|
|
|
|
|
b) duty to exercise |
(ss. 566-576 Commercial |
|
|
|
|
|
powers in accordance |
Code) apply pursuant to |
|
|
|
|
|
with the interests of the |
s. 66(3) |
|
|
|
|
|
company / duty of loyalty |
|
|
|
|
|
|
c) duty of confidentiality |
|
|
|
|
|
|
2) Duty to act in good |
|
|
|
|
|
|
faith, s. 194(7) |
|
|
|
|
|
|
3) Duty of non- |
|
|
|
|
|
|
competition, s. 196 |
|
|
|
|
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4) Prohibition of certain |
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transactions (regarding |
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loans, credit, property |
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etc.) with the director, s. |
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196a |
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Slovenia |
Statutory law |
1) Companies Act (ZGD- |
High Court of Ljubljana: |
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1): |
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directors may not only be |
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a) duty of care, Art. |
liable on the basis of |
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ZGD-1 rules on liability, |
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263(1) |
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but also because of a |
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b) confidentiality, Art. |
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breach of the agency |
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263(1) |
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agreement that exists |
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c) regulation of related |
between the company |
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party transactions and |
and the director |
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general duty to avoid |
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conflicts of interest, Art. |
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38a |
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d) duty of non- |
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competition, Art. 41 |
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2) Directors’ duties with |
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respect to the financial |
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operations of the |
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40 |
Directors’ Duties and Liability in the EU |