DL Milleproroghe 2023 (converted into L. no. 14/2023)

Online meetings even without statutory provision: new deadline

Among the novelties of the “Milleproroghe” 2023 there is the reintroduction of the deadline until 07/31/2023 to be able to hold company assemblies by videoconference even without a special statutory provision.

The “new” deadline resumes the emergency regime, which had ended on 07/31/2022: the legislature has “reopened” this favorable regime, also on the basis of the remarkable practicality of this system, which can be freely used even where the bylaws do not expressly provide for the possibility of holding meetings (and meetings of the administrative department, which follow the same logic) by videoconference, as the civilist norm expressly provides.

The provision of the “Milleproroghe” stipulates that assemblies can be “held” – in any case – by videoconference until 07/31/2023: therefore, it is consequential that the relevant convocation (except in the case of total assembly) must have been made previously, within the timeframe provided by law.

Other changes in the Milleproroghe include, in particular:

• the postponement to March 31, 2023, of the deadline for reporting the transfer of credit involving building bonuses;
• the waiver of the 24-month limit for temporary employment until June 30, 2025;
• the postponement to Dec. 31, 2023, of the deadline for completing investments in ordinary tangible and intangible assets 4.0 “booked” in 2022;
• the waiver of the 24-month limit for contracted labor until June 30, 2025

Corporate

Liability action against sole director and no need for prior shareholders’ resolution

For the purposes of bringing a corporate liability action against a limited liability company, a prior resolution of the shareholders’ meeting authorizing the bringing of such an action is necessary. This does not apply, however, in cases where the capacity of director and that of sole shareholder are held by a single person. In that hypothesis, jurisprudence has deemed it possible to recognize an “implicit authorization”: a liability action by the sole director against the previous sole director responsible for having made choices that caused damage to the company (and therefore not merely the result of entrepreneurial discretion according to the business judgement rule) has been deemed legitimately explained.

Challenging financial statements: for the co-owner of participation “reduced challenge”

The co-owner of a shareholding – for which a joint representative has been appointed for the purpose of exercising rights according to the rules of community – is not entitled to challenge the financial statements as a shareholder, but only as a third party with an interest in asserting their nullity. In an action for nullity -but not in an action for the annulment of a shareholders’ resolution – the third party must allege and prove a concrete and current interest in the declaration of nullity, since it is the source of his legitimacy. Such an interest is to be excluded in the case of the co-owner of the shareholding who bases the appeal on the right to correct and truthful information on the company’s asset, economic, and financial situation without, however, clarifying what injury justifying the adoption of the requested measure he has suffered in concrete terms.

Contracts

Waiver of goodwill allowance valid if included in a settlement

The regulations for commercial leases – for properties involving the conduct of activities with direct contact with the public (Law No. 392/78) – provide that in the event of termination of the lease relationship, a goodwill indemnity is due to the tenant. The amount of this indemnity is equal to 18 monthly payments, and it is therefore necessary that the relevant clause providing for it be adequately regulated in the contract. Recent jurisprudence  has established that it is possible to agree on the waiver of that goodwill indemnity even after the lease agreement has been entered into (in particular, in the decided case, during the minutes of conciliation defining a validation proceeding for terminated tenancy: this agreement is in the nature of a transaction and therefore may validly contain a waiver of the goodwill indemnity due to the tenant).

Sale of the company and several liability for tenant’s debts

In the case of a lease of business, if the business returns to the hands of the grantor, all the services pursued by both the same grantor and the tenant revert to the latter while the debts contracted, instead, by the tenant remain with the latter, albeit with application of the rule for joint and several liability of the transferee. With the lease of a business, in fact, the tenant takes over the contracts entered into by the lessor for the duration of the lease (in this as if it were a business transfer). In the case recently decided by the jurisprudence,  a tenant of a business, under a contract of administration entered into by the grantor prior to the lease, was liable for non-performance that triggered a penalty, formally demanded by the third party (party to the supply contract) after the termination of the business lease.  When the payment of this penalty the tenant declared that he was not liable, holding only the grantor, to whom the business had already been demised, responsible instead, it was decided that the rule of joint and several liability of lessor and lessee applies. This means that the penalty debt incurred by the lessee remains his responsibility, the rule of joint and several liability for this purpose for both lessee and lessor being applicable in any case, since the penalty debt had arisen at the time when the business was still the subject of the lease contract.

Responsability D.LGS. 231/2001

Suitability of organizational models according to the opinion of the GdF

According to a recent event on the matter, to which the Guardia di Finanza was invited to give its opinion, interesting indications have emerged in relation to the question of the suitability and adequacy of organizational models: the latter play, within the entity, the role of real “sensors” of the risks of crime, being therefore necessary for both monitoring and prevention. Legislative Decree 231/2001 requires not only that they be adopted, but that they be suitable, that is, adapted to the specific structure and concrete activity of the entity in internal and external relations, and effectively implemented. On the investigative level, the activity of the operational units of the GdF is, therefore, aimed at verifying that the model meets the need to proceduralize, after mapping the areas of operation exposed to the risk of crime, the training of personnel and the implementation of the decisions of top management, the management of financial resources, the effective establishment of a Supervisory Board and a system of continuous updating of the model. Refferring to that structure, it appears necessary to provide for an internal disciplinary apparatus and a system of protection against “acts of retaliation and discrimination” against whistleblowers (the rules of which are currently being updated). The GdF specifies that in order for the model to be said to be effectively implemented, it is essential for the entity to be able to document each operation, for the reconstruction of the elements subject to reporting, as well as for the entity to have a code of ethics. These elements are considered by the GdF to be mandatory for assessing the entity’s work, in terms of transparency, fairness, loyalty in relations with its stakeholders, including directors and shareholders but also the Public Administration and the entire economic system.

LDP remains at your disposal for any further information or in-depth study of the topics discussed above.

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