It is now known that thearticle 375 of the code of business crisis and insolvency – in force since March 16, 2019 – by modifying thearticle 2086 of the cod. civ. introduced the new duty, for all entrepreneurs, whether operating in a corporate or collective form to establish an adequate organizational, administrative and accounting structure the nature and size of the company.
In addition to this aspect, the assets must be adequate to be adequate also to be able to detect promptly the business crisis and the loss of business continuityas well as of take action without delay for the adoption and implementation of one of the instruments provided for by the law.
The new rewriting of article 3 of the Crisis Code therefore allows for that organizational link which allows the constant relief the economic and financial situation of result in immediate activation by the administrator – when there are signs of crisis – thus reaching the guiding principle of the reform or “allow healthy firms in difficulty to restructure at an early stage to avoid insolvency and continue their business” (recommendation 2014/135 / EU).
For organizational structure means the system function and organization chart, in particular the complex of established policies and procedures to ensure that decision-making power is assigned and effectively exercised at an appropriate level of competence and responsibility.
Instead, the administrative and accounting structure it concerns the whole of directives, procedures and operating practices aimed at guaranteeing the completeness, correctness and timeliness of corporate information, in accordance with the accounting principles adopted by the company.
This new regulation necessarily leads many companies to having to reorganize their structure administrative in order to correctly fulfill the burden introduced by the crisis code, in particular in the need for quickly grasp the signs of warning – which may jeopardize the business continuity – e act without delay.
The norm inevitably produced a impact on corporate bodies as well as on the activity of the supervisory body.
The role more relevant is “reserved” for administratorsin line with the provisions of the civil code according to which “the management of the company is carried out in compliance with the provision referred to in article 2086, second paragraph, and it is up to exclusively to the administrators“.
It follows that administrators have a duty to establish adequate structures and of constantly monitor the economic and financial equilibrium of the company regardless of any signs of a crisis.
In preparing the structures, the directors must bear in mind that they must be able to consent the detection of any imbalances of an economic and financial naturefrom verify the sustainability of debts and the perspective of business continuity for the following twelve months and to obtain the information necessary to use the detailed checklist and carry out the practical test for the verification of the reasonable prosecution of the recovery.
The further power / duty borne by the directors is governed by article 120-BIS of the crisis code, according to which the management body in addition to prompt intervention in the event of signs of a crisis, it must also implement corporate operations in execution of the plan prepared for its overcoming.
There failure to adopt any organizational measure will inevitably involve one responsibility of the management body.
The system of governance company does not refer only to the administrative body, which, as described above, has a new charge in charge, but it also includes the management body which carries out the control function relating to the work of the directors.
This activity is divided into two different controls: the audit of the financial statements And supervision of compliance with the law and the statute.
The proper operation of the governance allows you to detect promptly the risk that business continuity is jeopardized and reduce the negative consequences of the crisis.
The mayors, as now well clarified in the doctrine, are responsible for the supervision of compliance with the law and the statute or the verification of compliance of the deeds and resolutions by the corporate bodies with the respective provisions of law as well as the statute.
Activities and functions distinct from role of the statutory auditor which has that as its purpose of the expression of a judgment as to whether the financial statements are drawn upin all significant aspects, in accordance to the reference regulatory framework.
There distinction between the various functions implies that only the members of the board of statutory auditors are in charge of supervision about the establishment and proper functioning of the structures organizational, administrative and accounting also based on the timely detection of the business crisis and the loss of continuity.
Translated into practice, the auditors must necessarily request one at least quarterly accounting situation as updated as possible bearing in mind that the structures can be defined as adequate only if they are able to promptly produce the accounting information necessary for the constant monitoring of company management.
It is unequivocal that the controls they don’t have to stop to the sole vision of the accounting situation but the auditors will also have to analyze the deviations between forecast data and final data, the regularity of collections and payments and control of any reports qualified creditors.
Should any critical issues the comparison with the person in charge of the statutory audit.
Although the new CCII no longer provides for the application of specific indicators, it is advisable for the board of statutory auditors to proceed with the analysis of prospective cash flows based on the provisions of the so-called “cash flow“.
This control can take place using the calculations provided by the practical test present in Section I of the document annexed to the Decree of the Director General of Internal Affairs of 28 September 2021.
In light of the division of the tasks and functions of the directors, statutory auditors and auditors, it follows that, for a correct functioning of the governance corporatethe appointment of both the control body and the statutory auditor is absolutely necessary.
In fact, the reintroduction of the obligation to appoint the board of statutory auditors also in limited liability company which exceeded certain parameters (2003 company law reform).
This is because the possibility of “choice” between control body or auditor – article 2477 cod. civ. – beyond compromise the work of governance corporategiven the necessary coordination between the supervisory body and the auditing body, it could aggravate the responsibility of the administrative body for not having established an adequate corporate organizational structure, in the event of loss of capital or insolvency.