On 18 December 2020, the CNDCEC made available the definitive version of the new rules of conduct of the Board of Statutory Auditors of unlisted companies, in force from 1 January 2021. The document integrates and updates the previous 2015 version to take into account the relevant regulatory changes occurred in the last five years.

The new body of rules already applies upon approval of the financial statements closed on 31 December 2020. The supervisory bodies of all unlisted Spas and the Sole Statutory Auditor of Srl who have not been appointed are required to observe the new guidelines by the company to also carry out the statutory audit, the Statutory Auditors of Sapa (within the limits of compatibility with the relevant regulations) and those appointed in the cooperative companies, without prejudice, in this case, to the additional powers that the law assigns to the supervisory body , in consideration of the peculiarity of the cooperative model.

The structure of the document has not been changed, which has remained divided into 11 sections, like the previous version. In detail:

1. appointment, incompatibility and termination of members of the Board of Statutory Auditors;
2. functioning;
3. Duties;
4. participation in meetings of the corporate bodies;
5. supervisory powers;
6. reaction powers/duties of the Board of Statutory Auditors: convocation of the Shareholders’ Meeting. Complaint of reprehensible facts and serious irregularities. Liability actions;
7. report to the shareholders’ meeting;
8. opinions and proposals of the Board of Statutory Auditors;
9. activities in the event of replacement or omission of directors;
10. activity in extraordinary transactions and in other corporate events;
11. activity in the company crisis.

Compared to the previous document, significant changes have been introduced, as well as eleven new regulations; the new text, in fact, provides for 68 instead of the 57 contained in the previous version.

Each rule contains the principles, the related regulatory references and the application criteria aimed at providing the Statutory Auditors with both theoretical and practical tools in the performance of their duties. There are also comments that aim to analyze and clarify the choices made, as well as the interpretative problems that most often emerge in practice.

The rules of conduct of the Board of Statutory Auditors suggest and recommend behavioral models to be adopted in order to carry out the office of Statutory Auditor correctly. These are rules of professional ethics, in support of all professionals enrolled in the Register of Chartered Accountants and Accounting Experts, prepared with the aim of providing the correct paradigm of professional diligence (with particular regard to the responsibilities to which one is exposed in the performance of his office).

Among the main innovations of the new text, we highlight those concerning the supervision of transactions with related parties, the obligation of confidentiality, the relationship between statutory auditors and the sole director, the opinions given on the occasion of particular events, the activities to be carried out on the occasion the replacement of directors, company rentals and for the timely detection of the loss of business continuity.

As expected, the continuity of companies has been severely tested and operators have been called to deal with the negative impact that the health emergency has had on the global economy, at all levels. The motivation is to be found in the suspension of the activities to which the entrepreneurs were forced, due to the closure days imposed, as well as by the further limitations in terms of methods and times for carrying out the activities.

For the approval of the financial statements for the 2020 financial year, the document with which the National Council of Chartered Accountants, updating the previous 2016 version, provided a first revision of the document containing “Minutes and procedures of the board trade union”.

In particular, there are four new forms (applicable from 1 January 2021) and concern:

i). the meeting of the board of statutory auditors and the related minutes for the drafting and filing of the report to the shareholders’ meeting pursuant to art. 2429 of the civil code;

ii). the reasoned proposal for the appointment of the person in charge of the statutory audit, pursuant to art. 13 of Legislative Decree n. 39/2010, in the double version (which also takes into account the cases in which there is a single bidder or with a ranking);

iii). the acknowledgment of the proposed application of the temporary regulation pursuant to art. 6 of the legislative decree 23/2020, converted with amendments by law 40/2020 and modified by art. 1 paragraph 266 of law 178/2020, in the event of a reduction in capital due to losses.

The document takes into account the new rules of conduct, as well as the significant regulatory changes that the legislator has adopted to deal with the epidemiological emergency.

In the methodological premise, the working group that elaborated the new formats highlights how the minutes are merely indicative, precisely in consideration of the most varied situations which the Board of Statutory Auditors is called upon to oppose. The Statutory Auditors will be called upon to evaluate, from time to time, the appropriateness of any use and, having ascertained this opportunity, modify, adapt and/or integrate the contents of the proposed schemes, taking into account the contingent circumstances.

Carmelo Mollica