Antonio Grieco April 8 2019 New rules for limited liability companies Grieco e Associati | Corporate & Commercial - Italy Antonio Grieco Corporate & Commercial IntroductionLegislative Decree 14New rules for auditing and legal compliance supervision of limited liability companiesNew rules and criteria applicable to management and company directors IntroductionThe most widely used company models in Italy are joint stock companies (società per azioni) and limited liability companies (società a responsabilità limitata).Both are based on stockholders' limited liability (eg, shareholders and quota holders are liable up to their contribution to the company's capital).In addition, quota holders' personal ties to limited liability companies are significant and sometimes as important as capital contributions. As a result, the bylaws of limited liability companies are often based on quota holders' personal needs and business expectations.Conversely, stockholders' personal bonds to joint stock companies are less significant than in limited liability companies and the company's capital usually plays a greater role.In fact, the two company models differ in many respects. For instance, the rules concerning the powers and liabilities of directors as well as auditing checks are different.As of 16 March 2019, the rules for in-house auditors in limited liability companies have changed. The new provision reads as follows:Statutory auditor and statutory audit 2477. Auditor and statutory auditor.1. As to the statutory audit of a company's accounting, the limited liability company's deed of incorporation may provide for the appointment of a supervisory body or an auditor and set up their tasks and powers.If the articles of association do not provide otherwise, the supervisory body is composed of only one regular member.2. The appointment of a supervisory body or an auditor becomes mandatory if the company:a) is required to draw up consolidated financial statements; orb) controls a company required to audit its accounts; orc) has exceeded at least one of the following limits for two consecutive financial years: 1) total assets in the balance sheet: 2 million euro; 2) revenues from sales and services: 2 million euros; 3) employees employed on average during the year: 10 units.3. The obligation to appoint the supervisory body or the auditor referred to in letter c) of the third paragraph shall cease when, for three consecutive financial years, none of the aforementioned limits are exceeded.4. In the event of the appointment of a supervisory body, even made by one single member, the provisions on the board of statutory auditors for joint stock companies apply.5. The quota holders' meeting approving the companies' balance sheets and financial statements whereby the figures indicated in the third paragraph sub c) are exceeded must proceed, within thirty days, to the appointment of the supervisory body or of the auditor. If the meeting fails to do so, the competent Court will appoint such a supervisory body or auditor at the request of any interested party or on the recommendation of the registrar of companies.Legislative Decree 14Following the entry into force of Legislative Decree 14 of 12 January 2019 on the financial crisis of enterprises, some of the rules concerning the corporate governance of limited liability companies were amended.Article 389(2) of the decree amended Article 2477 of the Civil Code concerning limited liability companies and their auditing and accounting. The newly issued rules became applicable to limited liability companies from 16 March 2019.The changes are twofold: some directly affect the bylaws of limited liability companies and others the requirements for the appointment of professionals who perform auditing and supervisory duties for such companies.The new provisions must be adopted immediately by newly formed companies (ie, those established after 16 March 2019) and their bylaws must comply with the new criteria.For limited liability companies that already existed on 16 March 2019, Legislative Decree 14 allows them to update their bylaws within nine months (eg, by 16 December 2019).New rules for auditing and legal compliance supervision of limited liability companies Under the changes to Article 2477 of the Civil Code, the bylaws of limited liability companies can choose to adopt one of the following options:The appointment of an in-house auditor or an in-house auditing panel and one chartered accountant to carry out accounting checks.The appointment of an in-house auditor or an in-house auditing panel (which will also supervise management's compliance with the law) and no chartered accountant. In such cases, the company's bylaws must require the in-house auditor or auditors to conduct accounting supervision. Should this task not be undertaken by the in-house auditing body, the company must appoint a chartered accountant and the in-house auditing panel must be composed only of accountants.The appointment of a chartered accountant to carry out accounting supervision and no appointment of in-house auditors. In the absence of an in-house auditing body, the supervision of legal compliance must be exercised directly by the company's quota holders.The appointment of an in-house auditor or in-house panel or chartered accountant is mandatory under the new Article 2477 if one of the situations provided for in Paragraph 2(a), (b) or (c) applies.For companies that carry out banking or financial activities, insurance companies, brokerage firms and companies listed on the stock exchange, accounting activities cannot be carried out by in-house auditors and must instead be handled by chartered accountants.New rules and criteria applicable to management and company directorsArticle 375 of Legislative Decree 14 also amended Article 2086 of the Civil Code by providing that entrepreneurs – who conduct business individually or as part of a company – must:adopt administrative and accounting measures that fit the company's size and activity in order to enable it to set up effective alerts in case of any potential crisis that may arise; andimplement proper steps to tackle any possible financial crisis and protect business continuity.The abovementioned criteria are broad and the general principles apply to all enterprises and must be implemented by all types of company.Under Article 377 of Legislative Decree 14, limited liability companies:are to be managed exclusively by the company's directors who shall run the company by carrying out any appropriate transaction for reaching the purpose of the company. Unless any contrary provision of the by-laws, the management of the company is to be granted to one or more members (quota holders) appointed by the members' meeting in accordance with article 2479 of the civil code.This provision replaced Article 2475(1) of the Civil Code, which deals with the management of limited liability companies.Article 377 also added a new provision to Article 2475 of the Civil Code which states that "Article 2381, if compatible applies". Article 2381 concerns the management, powers and duties of directors of joint stock companies.However, the involvement of quota holders in the management of a company often occurs in limited liability companies as opposed to joint stock companies, where the directors are the only parties entitled to manage the company. This is due to the strong personal ties between members and limited liability companies.Arguably, the legislature's goal was thus to limit or constrain the involvement of quota holders or members in company management and not to repeal one of the basic principles applicable to the management of limited liability companies. Notwithstanding Article 377's entry into force, the bylaws of limited liability companies can still grant one or more quota holders "ad hoc rights concerning the management of the company" (Article 2468(3) of the Civil Code) and the bylaws of limited liability companies can "grant to all quota holders, or to some of them, special powers as to the management of the company or else even delegate to quota holders all powers to manage the company" (Article 2479(1) of the Civil Code).However, should quota holders partially or wholly become involved in the management of a company, together with the directors they can be liable for their actions to the company or third parties.As a result, it appears that the new Article 377 of Legislative Decree 14 did not aim to repeal the option for quota holders to manage limited liability companies, but rather aimed to stress that whichever party is in charge of management, companies must provide a structure that is consistent with their activities so that any possible financial crisis can be detected in a timely manner and the ongoing concern's continuity can be preserved.For further information on this topic please contact Antonio Grieco at Grieco e Associati by telephone (+39 06 420 3881) or email ([email protected] ). The Grieco e Associati website can be accessed at www.griecoassociati.com.