The principle of collegiality

The collegial principle operates, in general terms, as a criterion for regulating decision-making processes within bodies that are, precisely, collegial in nature, that is, composed of a plurality of members.

More precisely, a body is defined as collegial when the exercise of its function is delegated to a plurality of persons, who express their will through the adoption of a decision, which in turn is formalized through an act called a "resolution" or "deliberation."

This act

• on the one hand, synthesizes, that is, reduces to unity, the wills of the individual members of the organ;
• on the other hand, and precisely because of this, it is imputed to the organ as a subject distinct from its members.

In order for the resolution to be validly passed, it is necessary that the so-called constitutive quorum be reached, which consists of the number (or percentage) of individual members, with voting rights, who must be present at the vote in order for the body to be considered regularly constituted.

Again, a so-called deliberative quorum, which is the number of affirmative votes required for the resolution to be validly passed, must be achieved.

Once the mentioned quorums have been reached, the discussion phase among the members of the body is essential, at the outcome of which the resolution, as a formal and legally relevant act, is issued.

Each body may, also by its own rules of procedure, establish its own quorums.

Typically, the deliberative quorum alternatively refers to the criteria of unanimity, absolute majority, simple or relative majority, or even qualified majority.

An absolute majority is reached when affirmative votes exceed half of those eligible to vote.

A simple majority is reached when the votes in favor exceed half of those voting.

A relative majority is achieved when the votes in favor exceed those received by any other proposal.

Finally, it is possible to provide, as mentioned above, for a qualified majority, that is, it requires that the affirmative votes exceed a percentage of those voting or eligible to vote greater than half.

The collegial method does not, as a rule, require that the majority criterion be met, since it more generally constitutes a principle of organizing the decisions of collective formations.

A clear example of multi-person bodies are corporate bodies: shareholders' meeting, board of directors and supervisory board of a limited or unlimited liability company under Italian law.

On closer inspection, the multipersonal nature of the body does not necessarily imply that it operates according to the collegial method. With regard to the board of directors, for example, the Civil Code dictates different rules depending on whether the company is a joint-stock company or a different form of limited liability company. Only in the former, in fact, it is necessarily provided for the adoption of the collegial method if the body is multi-person. For the second type of company, Article 2475, paragraph 4 of the Civil Code provides that the company's statute may stipulate that decisions of the directors shall be made "by written consultation or on the basis of consent expressed in writing".

Two ways of voting are inferred from this: written consultation and express consent in writing. In both cases, it can be understood how the discussion phase among the members of the body is eliminated.

Still different from the collegial method is the mode of operation of directors of unlimited liability companies, who can decide whether to act jointly, with the limitation of the individual director's ability to make decisions necessary in order to avoid an urgent danger to the company, or disjunctively, where each director can make decisions necessary for the accomplishment of the company's object (Articles 2257 and 2258 of the Civil Code).