Code of Crisis and Insolvency: new criteria for S.R.L. in the appointment of the control body
Over the last years there have been a number of legislative innovations, including lower thresholds for the mandatory appointment of the auditors, the possibility to differentiate among categories of quotas and crowd-funding, which impact their cost, ease of management and flexibility for equity and debt transactions. The new Code of Crisis and Insolvency, modified by the Legislative Decree n. 14/2019, intervened, on the internal organization of the S.R.L. companies. In particular, art. 379 broadens the cases in which limited liability companies must appoint statutory auditors.
The new Code of Crisis and Insolvency, implemented through the Legislative Decree 14/2019, intervened, inter alia, on the internal organization of the S.R.L. companies. In particular, art. 379 of such reform broadens the cases in which limited liability companies must appoint statutory auditors. Indeed, the criteria for the appointment of the internal control body or the external auditor, set forth in art. 2477, paras 3 and 4, of the Italian Civil Code (cc), are amended. In particular, limited liability companies must appoint such bodies whenever they, alternatively, a) are required to prepare consolidated financial statements or b) control a company which is subject to the statutory audit of the accounts or c) have exceeded for two consecutive financial years at least one of the following limits: 1) total assets of the balance sheet: 2 million euro; 2) revenues from sales and services: 2 million euro; 3) average number of employees during the financial year: 10 units.
The thresholds referred to under point c) are, therefore, particularly low compared to the previous version of art. 2477 cc, thus implying that the scope for which the same is applied also extends to certain companies that, until this moment, did not have to provide themselves with an internal control system. A retrospective analysis on whether such thresholds have been exceeded is also required, since the two-year period 2017-2018 will be taken into account to determine whether the thresholds have been exceeded.
The duty to appoint the control body or external auditor ceases if none of the above limits is exceeded for three consecutive financial years. This period has increased compared to the previous version of the Italian Civil Code, which established that the obligation thereunder ceased if the thresholds were not exceeded for two consecutive financial years.
The reform requires implementation in the short term, as it must be transposed within 9 months from the execution date, and therefore by December 2019.
Thus, limited liability companies, whose by-laws replicate the letter of art. 2477, will need to amend it.
The Legislative Decrees 50/2017 and 129/2017 opened up for limited liability companies to opportunities that were previously reserved for joint-stock companies, concerning the organization, the financing and the circulation of quotas.
This has happened by extending to SMEs in the form of S.R.L. - regardless of the "innovative" nature of the same - the exceptions to company law initially provided for innovative start-ups and allowing the circulation of quotas through crowdfunding portals.
Most of the Italian S.R.L. are qualified as SMEs: "small and medium enterprises" are those companies that, on the basis of their annual or consolidated financial statements, meet at least two of the following requirements: 1) average number of employees less than 250; 2) total asstets not exceeding 43 million euros; 3) annual net turnover not exceeding 250 million euros. The result is an extremely broad subjective scope, encompassing the overwhelming majority of the Italian S.R.L.
Categories of quotas are characterized by the fact that they confer to all their holders "different rights" compared to those of other quotaholders and/or the quotas of other categories. However, these rights are equal amongst all quotas of the same category.
This provision has clear advantages from both an organizational and a financial standpoint. Indeed, the relationship between quotaholders, investors, lenders and developers within a company can be tailored on the basis of the real needs of each category. As pointed out in recommendation 173 of 27/11/2018, issued by the Notarial Council of Milan, each company can freely determine the content of the quota categories within the limits established by company law. The creation of such quota categories can also be combined with particular rights of quotaholders - as set forth in art. 2468 cc - that will expire at the time of transfer of the quota, since they are linked to the identity of the quotaholder.
A legal question that has not been resolved yet concerns the limit on the issuance of categories of shares provided with reference to joint-stock companies by art. 2351, para. 2, cc, according to which the value of the shares without voting rights or with limited voting rights must not exceed half of the share capital. This limit, in fact, is not referred to in the Legislative Decree 179/2012 - as amended by Legislative Decree 50/2017 - and we wonder whether the failure to recall such limit is due to a lack of coordination or rather depends on the wide statutory autonomy reserved for the limited liability companies.
Besides, Legislative Decree 129/2017 extends to all limited liability companies, qualified as small or medium enterprises, the transitional regime for circulation of quotas originally envisaged for start-ups and innovative SMEs. Crowd-funding is a form of bottom-up financing open to the participation of citizens and local stakeholders.
Such opening up to financial instrument needs to be coordinated with the right of control set forth in art. 2476, para. 2, cc, in favor of those quotaholders who are not involved in the management of the company. It is undeniable, indeed, that an unconditional access to company information can clash with the entry of investor quotaholders, exposing the company to information leakages which may alter competition within the market. A possible solution to such issue, also suggested by the recommendation of Notary Council of Milan dated 27/11/2108, may be the issuance of quota categories deprived of the control right. In this case, however, it will be necessary to provide for an internal control on the management, in order to avoid that the directors' actions take place in a context free from any gatekeeper whatsoever.