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.
Conclusions
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.
The National Labour Inspectorate, with Circular Letter no. 1881 of 25 February 2019, has clarified aspects concerning the application of Article 4, Workers’ Statute, in the event of occurrence – following changes in the company ownership structure (mergers, transfers, incorporations, leases of company or business lines) – of a change of ownership of a company that has installed video surveillance systems or other systems allowing remote monitoring of work activities.
More specifically, the Inspectorate was asked if in these cases it is necessary to repeat the procedure with the trade unions or the authorization procedures or if instead it is enough that the occurred change of ownership be formally notified to the competent office of the Inspectorate.
Reference Regulations
Article 4 of the Workers’ Statute, which was amended in 2015, sets forth (par 1) that the audio-visual systems and other tools allowing remote control of workers’ activities, can be used exclusively for:
Moreover, even if the above conditions are met, it is necessary that:
The indications of the Inspectorate
The Inspectorate clarified that in the event of a mere “take-over” of a company’s facilities previously equipped with the aforementioned tools/systems, it not necessary to “replicate” the procedures (trade union agreement / administrative authorization) set forth in Article 4 of the Workers’ Statute. This is so provided that changes have not occurred with regard to (i) the requirements of legitimization (production and organizational needs, safety at work and protection of company assets) and (ii) the operational arrangements of the systems (framing, angles of coverage, etc.).
However, according to the Inspectorate, it is necessary that the company taking over the facilities:
In any case, the Inspectorate has clarified that any type of use of the devices other than the authorized uses is forbidden, under penalty of the obligation to repeat the described authorization procedures, just like in the event of a change of the requirements of legitimization.
Other News:
Remote control of workers: additional operating provisions from the Labour Inspectorate
On March 25 Elena Cannone attended the “RoadJob” career day to answer the questions of young people accessing the labour market.
This was an opportunity for young people to get in touch with companies beyond the standard format of career days.
This event placed the new generations at the forefront: students become protagonists.
Companies listened to the aspirations and expectations of young people and replied directly to their questions, without intermediaries.
Location and time
The event will take place at the Centro Espositivo e Congressuale Lariofiere, Viale Rosegone, Erba (CO), from 8:30 am to 1:00 pm.
Agenda of the day
Luciano Vella attended the conference “How to build an international career” organised by ELSA Verona on March 21 on access and work at a commercial law firm.
Features and skills of a commercial attorney.
These and other topics were debated at the conference organised by Elsa Verona and held on March 21 2019. “Going past the full knowledge of the Law,” clarifies Attorney Vella during the meeting, “Market requirements from professionals entering the labour market are: interests, determination and motivation.
These are the features that in a market saturated by professionals in the legal field make all the difference, turning an attorney into a company partner playing a fundamental role in the development of the company”.
On 10 January 2019, the Council of the national register of chartered accountants (“Ordine dei Commercialisti”), together with the Italian banking association ABI (“Associazione Bancaria Italiana”), the Consiglio Nazionale Forense and Confindustria, published a document titled “Consolidated principles for defining organisational models and the tasks of the supervisory body and the prospects for a review of Italian Legislative Decree No. 231 of 8 June 2001” (the “Document”). The stated aim is to ensure the adoption of a corporate compliance system that is able to effectively prevent the commission of the predicate offences set out in Legislative Decree 231/01. More in detail, the Document provides interesting information on: (i) defining the principles to be followed when preparing 231 models; (ii) identifying the rules of conduct to be observed by the supervisory bodies in performing their function – without these, even the most well-structured model will not be deemed to have been effectively implemented and will not be effective in avoiding penalties being imposed on the entity if offences are committed; (iii) drawing up proposals to amend policies in order to remedy the main failings identified with respect to the principles underlying Legislative Decree 231/01. The Document in issue, together with other important actions taken at legislative level, are concrete evidence of the importance that corporate sustainability is assuming in the Italian legal system. In fact, 231 models act as a guarantee of the legality, transparency and proper functioning of all management-related aspects of a business. In this context, worth mentioning is that the Italian Senate is currently debating a bill that, if approved, will make the 231 organisational model and the supervisory body mandatory, where certain conditions are met.
