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NEWSLETTER 2013
80
Transfer of the Power to Appoint or Release Representatives
The non-transferable and inalienable powers of the board of directors
are significant in determining the possibility to delegate the representative
authority. Art. 375/1(d) TCC specified “
the appointment and dismissal
of managers and persons performing the same function and authorized
signatories
” as one of the non-transferable and inalienable powers of the
board of directors.
When assessing the obligation to register and announce signatories
under Art. 373 TCC together with the appointment and dismissal of
signatories being a non-transferable and inalienable right, it is possible
to reach the following conclusion: the legislator might have aimed for a
structure whereby all signatories are appointed and are announced by the
same body in order for these signatories to be publicly known.
Through analysis of the legislative justification of Art. 375 TCC,
it could be concluded that the non-transferable and inalienable powers
cannot be delegated to one or more directors or third persons. The wording
of this article comprises the appointment and dismissal of all signatories,
managers and persons performing the same function, and is not limited
with the senior managers having the representative authority.
In practice, the board of directors regulates the representation powers
of the top management through signature circulars. Nevertheless, the
impossibility to delegate the power to appoint and dismiss each and every
signatory may result in severe problems in practice. First and foremost,
requiring a board resolution for the appointment and dismissal of every
single signatory (for instance each person authorized to sign on behalf of
one branch of a bank) will result in an immense workload for the board of
directors. Additionally, especially in multinational companies, the board
members are not in a position to convene and render decisions at any given
time. Therefore, the obligation to appoint and dismiss each signatory will
be a burden on the board of directors. Therefore, it is crucial to designate
the scope and limits of the expression in the aforementioned article
which reads: “
managers and persons performing the same function and
authorized signatories
”.
The scope of persons with representative authority is disputed among
scholars. Pursuant to an opinion, commercial representatives and agents