Some of the measures set forth in Legislative Decree no. 14 of 12 January 2019 and published in the Official Gazette on the following 14 February entered into force on 16 March 2019, implementing delegating law no. 155 of 19 October 2017, and laying down the new “Code of corporate crises and insolvency” (the “Code“).
Appointment of control bodies in limited liability companies
Net of a series of implementing provisions to be enacted – and pending the entry into force of most reforms, 18 months from publication in the Official Gazette (and therefore on 14 August 2020) – in accordance with Article 389 of the Code, the entry into force, inter alia, of Article 379 is brought forward. This article, which amends Article 2477 of the Italian Civil Code, governs the “appointment of the control bodies of limited liability companies.”
Effective from 16 March 2019, the appointment of a control body or auditor is mandatory if a limited liability company:
The above mandatory appointment ceases if none of the above limits is exceeded for three consecutive financial years.
In addition to any other stakeholder, the Registrar of Companies may report infringement of the above so that the control body is appointed ex-officio.
It is interesting to note that, as estimated by the Bank of Italy, the limited liability companies that might be concerned by the aforementioned obligation are about 140,000.
Therefore, the limited liability companies the articles of association of which:
More in detail, in terms of organizational arrangement (and therefore, in the articles of association) it is possible to select one of the following options:
It is proper to note that the rationale of the whole reform, and therefore, of the Code, lies in (i) the strengthening of the instruments to anticipate a crisis, on the one hand, (ii) the preservation of the going concern (business continuity, as required transnationally) and (iii) debt write-off together with management discontinuity, on the other hand.
This reform, which increases the awareness and “accountability” of entrepreneurs (a concept of European origin, just like the GDPR and the personal data protection reform), must certainly be welcomed. However, it is necessary to verify in the future if the new “limit of 10 employees” will foster elusive behaviours, and therefore the parcelization of companies, which in Italy already are of a small size.