The reform of Italian insolvency law: Introduction of new thresholds for the statutory appointment of the monitoring body

​published on February 20, 2019 | reading time approx. 2 minutes

On February 14, 2019, the legislative decree implementing delegation law no. 155/2017 for the reform of business crisis and insolvency regulations was published in the Official Gazette of the Italian Republic. The legislative decree introduces a decrease in the thresholds for the statutory appointment of a monitoring body (organo di controllo) and/or auditor (revisore legale) in limited liability companies and cooperative companies. While the majority of the decree's provisions will come into force 18 months after its publication, certain provisions, including those relating to the appointment of the monitoring body, will already come into force on March 16, 2019.

 
The thresholds that render the statutory appointment of a monitoring body and/or of an auditor obligatory will change as follows:

The decree provides for a transition period of 9 months from the entry into force of the relevant provisions to allow the companies to adjust their memorandum of association and articles of association to the new provisions.

The monitoring body and/or the auditor must therefore be appointed by December 16, 2019. In order to avoid appointment in a current, almost completed financial year, we recommend resolving on the appointment when approving the FY 2018 financial statements.

We remind you that each S.r.l., preparing consolidated financial statements or controlling a company which requires a statutory audit, is obliged to always appoint a monitoring body and/or auditor, regardless of whether or not the above thresholds are exceeded.

We also remind you that the function of the monitoring body of an S.r.l., which may be performed by an individual or by a board (Sindaco Unico/Collegio Sindacale), or also by an auditor, the latter either as a natural person or as an audit company, is to oversee the chosen organizational, administrative and accounting structure of the company and its effective functioning, as well as the compliance of the company's activities with the law, the articles of association and the principles of proper administration. For such reason, the monitoring body is entitled – and obliged – to attend shareholders' meetings and meetings of the managing body and may challenge their decisions.

Finally, we would like to point out that the new rules oblige the corporate monitoring bodies to issue alerts to the Corporate Crisis and Restructuring Observatory (OCRI – Osservatorio Crisi e Risanamento), to be set up at each Register of Companies, if there are well-founded indications of a business crisis.