Code of business crisis and insolvency (D.Lgs. 14/2019)
The recent reform of the corporate crisis and insolvency code, published in G.U. February 14, 2019 and downloadable in full by clicking here, it reviews the insolvency procedures significantly. The entry into force of the provision is scheduled for 08/15/2020, except for articles 27, paragraph 1, 350, 356, 357, 359, 363, 364, 366, 375, 377, 378, 379, 385, 386, 387 and 388 which entered into force on 03/16/2019. For companies and professionals, therefore, there is a period of particular turbulence.
The first deadline requires, by December 2019, a large number of companies to date, to have the control body and / or the auditor.
From now until 15 August 2020, companies will also need to have adequate organizational, administrative and accounting structures, also aimed at the prompt emergence of crisis situations and the loss of business continuity.
The new code of business crisis and insolvency (Legislative Decree 12 January 2019 No. 14), published in the Official Journal on February 14, 2019, in Article 2086 of the Civil Code, after paragraph 1, adds the following:
“The entrepreneur, who operates in corporate or collective form, has the duty to establish an organizational, administrative and accounting structure appropriate to the nature and size of the company, also in function of the timely detection of the company crisis and the loss of the business continuity, as well as to take action without delay for the adoption and implementation of one of the instruments envisaged by the regulations for overcoming the crisis and recovering the business continuity “.
The new art. 2477 of the civil code, in the formulation in force from June 18, 2019 after the conversion of the decree c.d. “Unblock Cantieri”, also provides for the S.r.l. that:
“The appointment of the control body or the auditor is mandatory if the company:
- It is required to prepare consolidated financial statements;
- Check a company required to audit the accounts;
- He has passed at least one of the following limits for two consecutive years:
a. Total balance sheet assets: 4 million euros
b. Revenues from sales and services: 4 million euros
c. Employees employed on average during the year: 20 units “
The alert procedures foreseen by the new Crisis and Insolvency Code are substantiated in:
Alert instruments (art. 12), Crisis indicators (art. 13), Reporting obligation of corporate control bodies (art. 14), Reporting obligation of qualified public creditors (art. 15), Crisis resolution body business – OCRI (Article 16), Composition of the crisis (Article 19), Protective measures (Article 20), Award measures (Articles 24 and 25).
Another important change is the introduction of the co. 6 of the art. 2475 of the Civil Code, which requires the application, insofar as it is compatible, of art. 2381 of the Civil Code, containing the rules on the functioning of the management body, with the unchanged provision that the board of directors:
- evaluates the adequacy of the organizational, administrative and accounting structure of the company;
- examines the strategic, industrial and financial plans, if prepared;
- it can delegate its own attributions to some of its members, establishing the relative limits.
From this last point of view, the delegated bodies are required to verify that the organizational, administrative and accounting structure is adequate to the nature and size of the company, and to report – to the board of directors and the board of statutory auditors, with the frequency established by the articles of association and, in any case, at least every six months – on the general performance of the management and on its foreseeable evolution, as well as on the most significant transactions, due to their size or characteristics, carried out by the company and its subsidiaries. This timing could even be reduced, in light of the new regulation on alert indicators in force since 15 August 2020 (sustainability of the debt in terms of cash flow, and adequacy of own resources with respect to debts), which in fact require at least monitoring quarterly and, therefore, the preparation of a report with this frequency.