BOARD DIVERSITY E PRINCIPIO DI LIBERA SCELTA DEGLI AMMINISTRATORI TRA PROFITTO E SOSTENIBILITÀ

The thesis examines the issue of diversity in the composition of the management body (so-called board diversity) of listed joint-stock companies, analysing how this aspect fits into the constraints on the shareholders’ meeting’s power to appoint directors. In particular, in an era where the ultimate purpose of companies is being reconsidered, assigning the board of directors the task of guiding the company in pursuit of its “sustainable success”, the question arises whether this change in perspective can also influence the configuration of the board itself. From this perspective, the paper starts by reconstructing the historical and economic reasons that led to the limitation of the shareholders’ meeting’s freedom in choosing the members of the management body. Starting from the introduction of figures such as the independent and minority director, it reaches the current focus on gender equality and the overall “diversity” of the board. The second chapter is therefore focused on a careful examination of the regulatory constraints that circumscribe the discretion of the shareholders’ meeting, analysing the exceptions to the principle of appointment by the shareholders’ meeting, the rules on the origin of candidate lists, structural and temporal constraints, as well as the subjective, individual and collective requirements demanded of directors. Subsequently, the study delves into the concept of “diversity” in the composition of the management body. The treatment of this topic in international corporate governance principles and national codes is examined, with particular attention to European banking regulations. The link between diversity and ESG issues is also explored, analysing the most recent directives and standards in this area. The chapter concludes with reflections on the distinction between intrinsic and extrinsic diversity, emphasizing the importance of the principles of proportionality and flexibility in applying these concepts. Finally, the third chapter focuses on the practical aspects related to identifying the “optimal” composition of the board of directors. The tools provided for this purpose are examined, such as the diversity policy, the board’s self-assessment, and guidelines on its composition. The analysis extends to the various phases of the appointment process, the role of the subjects involved, and the possible consequences of failing to appoint an “optimal” board of directors. Lastly, the chapter reflects on the potential role of board diversity in the context of adequate organizational structures that directors are required to set up pursuant to Article 2086 of the Italian Civil Code.