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Sistemi di controllo e doveri di vigilanza: considerazioni sulle nuove norme di comportamento del Collegio sindacale di società non quotate

Raffaele Marcello, Phd, assistant Professor and lecturer of Business economics at the “Pegaso” Online University.

Dal 1° gennaio 2021 saranno in vigore le nuove Norme di comportamento del Collegio sindacale di società non quotate redatte dal Consiglio Nazionale dei Dottori commercialisti e degli Esperti contabili. Il presente contributo analizza il nuovo set di Norme, che si sostituisce a quello precedentemente emanato nel 2015, con l’obiettivo di aggiornare i modelli comportamentali raccomandati ai membri del Collegio sindacale della s.p.a oppure al sindaco unico della s.r.l., per svolgere correttamente l’in­carico di vigilanza.

Monitoring systems and supervision duties: considerations on the new rules of conduct of the Collegio sindacale of unlisted companies

From January 1st, 2021, the new rules of conduct of the Collegio sindacale (Board of Statutory Auditors) of unlisted companies, drawn up by Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili (CNDCEC), the National Council of Chartered Accountants and Accounting Experts in Italy, will enter into force. The present contribution analyses the new set of Regulations, which replaces the one previously issued in 2015, with the aim of updating the behavioural models recommended to the members of the Board of Statutory Auditors of companies listed on the stock market or to the sole member of the Board (sindaco) of a limited liability company, in order to correctly carry out supervisory duties.

Keywords: unlisted companies – due diligence – monitoring systems – Board of Auditors

Sommario:

1. Introduction - 2. Structure and content of the new regulations - 3. I the main new elements - 4. The supervisory duties of the Board of Statutory Auditors not responsible for the statutory audit - 4.1. “Financial-business” supervisory activities of the Board of Auditors - 4.2. Monitoring the adequacy of the administrative and accounting framework adopted by the company - 4.3. Monitoring financial statements and the management report - 4.4. Board of Statutory Auditors Report pursuant to art. 2429 of the Italian Civil Code - 5. Participation of the corporate bodies in the meetings - 6. The activities of the board of statutory auditors in a business crisis - 7. Relations with the Organismo di vigilanza - 8. Concluding remarks - NOTE


1. Introduction

Public consultation [1] of the “Rules of conduct of the Collegio sindacale of unlisted companies” [2] ended in November 2020. The new text, applicable from 1st Ja­nuary 2021, replaces the old rules previously established on the subject in September 2015 [3]; it outlines principles, accompanied by application criteria and comments that integrate provisions of a deontological nature compliant with the professional code of ethics. The rules are addressed to the statutory auditors of joint stock companies [4] that do not operate in sectors subject to specific primary or regulatory provisions [5] and, while configuring deontological rules of ethics, these rules are increasingly used as a parameter, even in case law, for assessing diligence in beha­vioural patterns among the members of the Board of Statutory Auditors. The 2020 update stems firstly from the need to take into account, on the one hand, the new functions attributed to the supervisory body by the Corporate Crisis and Insolvency Code introduced by Legislative Decree no. 14/2019 [6] and, on the other, the further evolution of case law and procedures that have taken place in recent years. The document is also characterized by a renewed attention to the subject of organizational protocols and, specifically, information flows commensurate with the positions of the most accredited legal and economic doctrine which assume a central role, as a standard of action of the [continua ..]

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2. Structure and content of the new regulations

The Rules of Conduct of the Board of Statutory Auditors of unlisted companies suggest and recommend behavioural models to adopt in order to perform the duty of sindaco correctly; they are, therefore, of a technical and ethical nature and can function as a useful source of information with regard to the complex activity involved for all those who hold the office of member of the Audit Board of a non-listed company and as such, they are used for the following considerations: – in the context of the internal control system of non-listed companies, they define how the Board of Statutory Auditors must report to each of the subjects who perform a supervisory and administration function, what information flows it must implement with each of them, indirectly contributing to greater clarity with regard to the tasks and responsibilities of the various individuals that make up this system; – in the absence of detailed indications provided by legislation which, as previously mentioned, are more specific for the supervised sectors, they define which specific supervisory activities the Board of Statutory Auditors of an unlisted company must carry out with respect to the individual supervisory duties; – highlight the importance of planning control activities [7], of defining periodic as well as episodic information flows in the event that risk situations arise; – finally, they attach particular importance to the minutes of the meetings [continua ..]

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3. I the main new elements

Among the most innovative regulations, we highlight those relating to indepen­dence (Regulation 1.4) [9] and the causes of ineligibility, adequacy checks and opera­tion of the organizational structure of the company (Regulation 3.4) which is of fun­damental importance, as highlighted in Standard 11.1, in order to intercept going concern risks and signs of crisis. Regulation 6.3 has also been implemented which clarifies the role of the sindaci in alleged cases of “bad management” on the directors’ part reported by the shareholders pursuant to art. 2408 of the Italian Civil Code, and Rule 6.4, relating to judicial control, has been amended to take into account the changes made by the Crisis Code regarding the recourse tool pursuant to art. 2409 of the Italian Civil Code, also extended to limited liability companies [10]. Further changes were introduced to regulations 3.7 and 7.1 to better clarify, with regard to financial statements, the specific duties and the various different responsibilities attributable to sindaci and statutory auditors. In rule 7.1, in particular, the sindaci are allowed to not submit a proposal regarding the approval of financial statements in the event of the auditor’s “no-opinion” [11]. It should be noted that in addition to the significant changes and additions made to many extant regulations, 10 new ones have been introduced with respect to the regulations in force since 2015. Among [continua ..]

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4. The supervisory duties of the Board of Statutory Auditors not responsible for the statutory audit

Matters concerning company control have been considerably modified in recent years [17]. At this point, it would be beneficial to our discourse, which will be further developed below, to anticipate what the conclusions should be: the general regulatory framework highlights that, despite strong pressure on some parts for a resizing of the concept and, more precisely, of the control framework, relegating these two ma­ters solely and exclusively to the ex post verification carried out by the auditor, the legislator continues to rely heavily on the Board of Statutory Auditors which, pre­sumably, continues to prove itself well. And indeed, it does not seem a mere coincidence that the Legislative Decree no. 39/2010 (art. 19) has identified the Board of Statutory Auditors of public interest entities – or the other supervisory bodies of alternative governance systems – as the committee for internal control and account auditing, and that Law no. 183/2011 established that the functions of the Supervisory Board (SB) can be carried out by the Board of Statutory Auditors (or by one of the supervisory bodies of systems alternative to the traditional) [18]. Within this perspective and dwelling further upon the interference with statutory audit, it is appropriate to highlight right from the start, that the internal control and audit committee established pursuant to art. 19 Legislative Decree no. 39/2010 is required by law to supervise: – the [continua ..]

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4.1. “Financial-business” supervisory activities of the Board of Auditors

As part of the powers attributable to the supervisory activity referred to in art. 2403 of the Italian Civil Code, there are areas of intervention on the part of the Board of Statutory Auditors in which the financial-business aspects and competencies are more prevalent compared to those of a typically legal nature. In particular, we refer to: supervising the adequacy of the accounting framework adopted by the company and its efficient functioning; evaluating the possibility of entering on the balance sheet, through the expression of consent, costs of installation and expansion and development costs, in accor­dance with art. 2426, first paragraph, n. 5, of the Italian Civil Code, as well as the goodwill pursuant to art. 2426, first paragraph, n. 6 of the Italian Civil Code; supervisory activity in compliance with the law and the bylaws and with the balance sheet. Points 1 and 3 focus on the annual report drawn up pursuant to art. 2429 of the Italian Civil Code. In addition to those mentioned above, there are also other specific tasks that are carried out in the event particular circumstances occur in the company, such as: – expressing an opinion on the fairness of the issue price of shares in the event of excluding or limiting option rights (in accordance with art. 2441, sixth paragraph, of the Italian Civil Code); – expressing observations on the situation of the company in the event that the capital appears to have decreased by more [continua ..]

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4.2. Monitoring the adequacy of the administrative and accounting framework adopted by the company

With reference to the adoption and monitoring of the frameworks, art. 2403, first paragraph, of the Italian Civil Code provides for a triplicity of obligations, in the sense that the delegated bodies ensure the use of adequate frameworks, the Board of Directors assesses the adequacy on the basis of the information received and finally, the Board of Statutory Auditors supervises this adequacy and the efficient functioning of the frameworks [33]. In addition to specifying the activities that need to be carried out to monitor the frameworks, the code of conduct 3.6. (Monitoring the adequacy and functioning of the administrative-accounting system) interprets the definition of the administrative-accounting system as follows: “The administrative-accounting system can be defined as the set of directives, procedures and operational practices aimed at ensuring the completeness, accuracy and timeliness of reliable corporate information, in accordance with the accounting principles adopted by the company. An administrative-accounting system is adequate if it allows for: – complete, timely and reliable accounting recognition and representation of management operations; – valid and useful information to aid in management decisions and in the protection of company assets; – reliable data for the preparation of the annual financial statement”. Therefore, monitoring activity carried out by the Board of Statutory Auditors, even through [continua ..]

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4.3. Monitoring financial statements and the management report

Even if it is not in charge of the control, the Board of Statutory Auditors retains some supervisory tasks related to the preparation, approval and publication of the financial statements which are far from being considered residual tasks. This activity is summarized in both the Code of Conduct 3.7. (Supervision of the financial statement and management report) and 3.8. (Supervision of the consolidated financial statement and the management report). In all the cases considered above, the Code of Conduct highlights the general principle according to which the Board of Statutory Auditors is required to ensure that the directors comply with the procedural rules relating to the preparation, approval, filing and publication of the financial statements (also consolidated). Furthermore, the listing of the company on the markets will necessitate compliance with the specific rules provided for in the reference standard. As regards the subject of this contribution, the so-called ‘closed’ companies, in addition to specifying the above, Regulation 3.7 highlights that the Board not in char­ge of the statutory audit is not required to carry out analytical checks on the content of the financial statements, nor is it required to express an opinion on its reliability. It is, however, required to verify: – the correspondence of the financial statements and report to the facts and information of which the Board of Statutory Auditors is made aware subsequent to [continua ..]

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4.4. Board of Statutory Auditors Report pursuant to art. 2429 of the Italian Civil Code

In terms of content, among the many innovations previously mentioned, Regulation 7 particularly stands out, concerning the report of the Board of statutory auditors at the shareholders’ meeting [37], where the supervisory board is granted for the first time the possibility not to comment on the approval of the financial statements in case the auditors do not express an opinion [38]. As mentioned, the legislator has used rather broad and generic terms to indicate the content of the report pursuant to art. 2429 of the Italian Civil Code [39]. Although the statutory audit has been removed from the powers of the Board of Statutory Auditors, with the exception of the express statutory provision of the cases indicated in art. 2409-bis of the Italian Civil Code, the observations made pursuant to art. 2429 of the Italian Civil Code could in principle be in conflict with the conclusions of the person in charge of the statutory audit regarding the correct application of the law and auditing standards. The observations expressed at the moment of derogation from the criteria identified for the drafting of the financial statements and the budgetary structure must therefore not be limited to indicating the reasons that motivated the derogation which have already been indicated in the explanatory notes, but must focus on the validity and rationality of it: in this case it must be an analytical control. On a systematic level, the greater flexibility introduced by [continua ..]

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5. Participation of the corporate bodies in the meetings

Among the most significant changes, there is the revision of the regulation regarding participation in meetings of the Board of Directors or of the Executive Com­mittee (Rule 4.2), with the express provision for the Chairman of the Board of Directors to provide adequate information [50] to the statutory auditors on the matters that will be subject to evaluation and deliberation by the advisors [51]. As is well known, in art. 2381 of the Italian Civil Code, the legislator prescribes that adequate information on the items on the agenda be provided to all directors however it does not mention the statutory auditors; the principles of the Code of Conduct therefore fill this particularly important void. Among the application criteria, it is also considered appropriate that the statutory auditors, even on an individual basis, request that the Chairman of the Board of Directors send the directors and the Board of Statutory Auditors the supporting do­cumentation for the decisions on the agenda concurrently with the notice of call of the Board of Directors. In the event the President refuses to comply with the request, the statutory auditors proceed to inform all the members of the Board of Directors for the purpose of requesting a resolution. Sindaci are always permitted, even on an individual basis, to request further information, documentation and clarifications from the chairman and the delegated bo­dy in addition to those sent to them prior to or at the [continua ..]

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6. The activities of the board of statutory auditors in a business crisis

In the new Code of Conduct, particular attention is placed on the function undertaken by the Board in the area of crisis prevention and emergence [52]. In anticipation of a definitive regulatory framework of reference related to business crises and insolvency, alongside the remaining regulations up to now unchanged, it is our aim to highlight the new appendices with regard to the statutory auditors’ oversight activities intended for the timely detection of the losses on a going concern basis and of company crisis (Regulations 11.1. and 11.2.) [53] derived directly from the provisions contained in art. 2086, paragraph 2, of the Italian Civil Code. The reform of the Crisis Code brings out the versatility of the functions of the internal control body within the corporate organization [54]. According to art. 2403 of the Italian Civil Code, aside from the traditional supervisory task the internal control body has, it becomes a driving force for the directors and, in the event of inaction on the part of the latter, it will take appropriate initiatives in its place. The functions that this body is called upon to perform in the emergence of the first signs of crisis require continuous monitoring of management activity in order to promptly intercept the existence of a crisis; moreover, if the control and reporting activity is timely, the alert function carried out by the internal control body can turn into an alternative corporate recovery tool that ultimately [continua ..]

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7. Relations with the Organismo di vigilanza

In the context of the Code of Conduct for the Board of Statutory Auditors, the Rule 5.5 that addresses relations with the Organismo di vigilanza (Supervisory Body) certainly deserves some reflection, particularly in light of the new duties placed on the supervisory body by both the business crisis code as well as, albeit indirectly, the growing list of predicate offenses in terms of partial inclusion of tax offences covered by the liability of the entities. The reform of the Crisis Code is inspired by the logic of the risk approach, already typically used in the drafting and evaluation of Model 231 where the prevention of corruptive acts and the sharing of information become functional and effective for a sound and adequate company management [62]. It is well known that the efficiency and adequacy of Model 231 will depend on its being constantly and continuously updated [63]. Furthermore, the adequacy assessment [64] constitutes the central element of the whole system provided for by Legislative Decree n. 231/2001, since it is on this that effectiveness depends exempting the entity’s liability. The organizational model is part of the protocols set out in the new art. 2086 of the Italian Civil Code and imposed on all companies and must be, as mentioned, adequate to the nature and size of the company, with respect to which the need arises to make an assessment of the adequacy of the organizational, administrative and accounting framework in relation to [continua ..]

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8. Concluding remarks

The issue of the Code of Conduct of the Board of Statutory Auditors of unlisted companies is part of a constantly moving legislative framework which over time has deeply reshaped the role of the Board of Statutory Auditors, directly and indirectly redefining the information profiles (both active and passive) at times even its contents, at other times only in the direction of the information flows. Therefore, the need was felt, as requested by several parties, for a rationalization of controls, which does not mean merely strengthening the “procedural apparatus”, but rather paying attention to the operational and concrete (and efficient) application of the regulatory data. In this context, one of the main reasons behind the new standards was the institutionalization of a system of interorganic and intraorganic information flows with desirable and much-needed virtuous consequences not only within the company, but also on the market, for the benefit of all stakeholders. Indeed, the effectiveness and efficiency of a company are strongly conditioned by the sharing of information on which the decision-making process in its various articulations is based. Moreover, the concept of “control” undeniably rotates in a central and decisive way around the circulation/acquisition of information relating to the functions subject to supervision as well as the activities and/or the acts and operations performed by monitoring the exercise of certain functions and the [continua ..]

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NOTE

[1] Public consultation made it possible to share the solutions identified in the Code of Conduct with subjects outside the task force, particularly experts in the field, in order to provide professionals with unique and shared models of behaviour. [2] See Marcello-De Angelis, Nuove norme di comportamento per i collegi sindacali in consultazione, in Eutekne.info, October 21, 2020. [3] For the drafting of the report issued pursuant to art. 2429 of the Civil Code, on the occasion of the approval of the financial statements for the year 2020, therefore, the supervisory body may follow the instructions contained in the document in question. [4] The rules refer to the statutory auditors of joint-stock companies and limited liability companies without a statutory audit function and which, in fact, contain provisions regarding, on the one hand, the required opinion of the Board of Statutory Auditors to appoint an auditor (rule 8.2) and the early termination of the same auditor (rule 8.3) and, on the other hand, the exchange of information between the Board of Statutory Auditors and the person in charge of the statutory audit (5.3). The rules in question also highlight the role and powers of the sole auditor in the joint-stock company and thus become refe­rence provisions also for the professionals appointed in a unipersonal company. [5] For unipersonal companies – whose category tends to coincide with that of public interest entities pursuant [continua ..]

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