Assetti organizzativi adeguati

Obligations, risks and solutions for small businesses

Article 2086 of the Civil Code, as amended by the Business Crisis Code, requires entrepreneurs operating as companies to establish an organisational, administrative and accounting structure appropriate to the nature and size of the business. This obligation, in force since 2019, serves to ensure sound management and to promptly detect any signs of business crisis. But what risks does a company (and its corporate bodies) run if it does not comply? And what are the minimum requirements for micro and small-to-medium-sized enterprises? Below, we take stock of the situation in practical terms, including a summary of the most recent rulings on the subject.

Risks of non-compliance.

Without adequate organisational structures, the company risks not noticing financial or management imbalances in time, aggravating its situation to the point of crisis or loss of business continuity. In other words, the absence of monitoring tools can cause the company to unknowingly move from a state of equilibrium to one of financial distress, making recovery more difficult.

From a legal point of view, failure to put adequate structures in place is considered a serious breach of duty on the part of directors. Several court rulings have defined such an omission as a 'serious irregularity' under Article 2409 of the Italian Civil Code, which legitimizes the intervention of the court upon notification by shareholders, auditors or statutory auditors. In proven cases, the courts have ordered the removal of directors (sometimes together with auditors) and the appointment of a judicial administrator to restore proper management. This measure effectively entails the removal of the administrative and control body in office, with a serious impact on corporate governance.

In addition, defaulting directors may be held liable for damages caused by their failure to establish adequate structures. Failure to comply with the obligation under Article 2086 of the Italian Civil Code exposes the administrative bodies to heavy civil liability towards the company and, in the event of insolvency, also towards creditors.

It should be noted that supervisory bodies (board of statutory auditors or auditor) are not exempt from risk either. The duty to monitor the adequacy of the structures falls on them by law. If auditors or statutory auditors fail to report serious deficiencies in the administrative and accounting systems, they may be held jointly liable. In some of the aforementioned rulings, the courts have also ordered the dismissal of auditors for failure to supervise. Therefore, a non-compliant structure puts the entire governance structure at risk: directors removed and potentially sanctioned for mismanagement, auditors dismissed for failure to supervise and, in the worst cases, early or aggravated insolvency proceedings.

Minimum requirements for micro and small enterprises
The legislation on adequate structures is proportional: the measures required must be commensurate with the nature and size of the enterprise. This means that a micro-enterprise does not have to equip itself with the elaborate systems typical of a large company. However, even smaller enterprises must put in place certain basic tools that are essential for monitoring the company's performance and identifying any problems as they arise. Here are the minimum requirements that a small-medium enterprise should meet in order to be considered adequately structured:

• Orderly and up-to-date accounting – Maintaining reliable and timely accounting is essential. Even those who use simplified accounting should periodically prepare an updated accounting statement (balance sheet) in order to have clear data on assets, profits/losses and liquidity. Up-to-date accounting allows you to provide complete and accurate information on the economic and financial situation to shareholders and other stakeholders, as also recommended by recent case law.
• Monitoring financial indicators – It is advisable to define some key indicators and check them regularly against warning thresholds. For example: net assets (to verify that they have not been eroded beyond the legal limits), liquidity and cash flow, degree of indebtedness and ability to repay debts. These parameters help to measure the financial and capital balance of the company. The company should be able to answer questions such as: 'Do we have sufficient liquidity for the coming months? Are short-term debts sustainable in relation to incoming receivables?' etc. A simple control dashboard can prevent surprises.
• Management of deadlines and cash flows – Even a micro-enterprise should adopt a minimum of financial planning. In practice: prepare a cash budget (e.g. 6-12 month horizon) to assess the ability to meet imminent financial commitments. In addition, keep a schedule of debts to suppliers, banks and the tax authorities, constantly monitoring planned expenditure. It is important to highlight any delays in payments immediately: for example, check whether there are any debts to suppliers that are more than 90 days overdue or loan instalments that are more than 60 days overdue. These are some of the 'signs of crisis' indicated by the Crisis Code, which must also be monitored in small businesses. Careful cash management helps to prevent financial tensions and to take timely action (e.g. renegotiating debts or seeking new financing) before the situation becomes critical.
• Clear internal organisation (even simplified) – In a micro-enterprise, functions are often concentrated on the entrepreneur or a few employees. However, it is essential to clearly define roles and responsibilities for administrative and financial management. For example: identify who is responsible for recording accounting transactions (even if it is an external accountant), who monitors payments and receipts, and who periodically checks performance (often the administrator together with the consultant). Even with a minimal organisational chart, it is important that someone has the specific task of monitoring the accounts and immediately reporting any anomalies to the administrators. The firm or external consultant can provide operational checklists to periodically verify the company's health. This ensures that the entrepreneur has the necessary information on the economic and financial balance, indebtedness and 12-month outlook required by law.

In summary, a small business should not 'embark' on costly bureaucratic reorganisations, but neither can it ignore the obligation to equip itself with basic control tools. Adequacy must be commensurate with the size of the company. What matters is that the entrepreneur, possibly with the support of external consultants, has the company's key figures under control and can make informed decisions in a timely manner. In addition to avoiding penalties, even a basic but effective structure allows for more peaceful management and can improve the confidence of banks and partners (e.g. by facilitating access to credit).

Recent case law: liability, revocations and penalties
The Italian courts are strongly confirming the legislator's line: omissions or deficiencies in internal organisational structures do not go unpunished. Here is a brief overview of significant rulings in recent years, highlighting the possible liabilities for directors and auditors:

• Court of Milan – Decree 29/02/2024: failure to adopt adequate corporate structures is classified as a 'serious irregularity' pursuant to Article 2409 of the Italian Civil Code, sufficient to justify the revocation of directors (as well as auditors) at the request of shareholders. In this ruling, the court reiterates that the reporting of irregularities to the judge may also be initiated by minority shareholders, given the significance of the obligation violated.
• Court of Catania – Judgment 08/02/2023: having ascertained the absence of adequate structures, the court ordered the removal of the entire board of directors and its replacement with a judicial administrator. In this case too, the omission in the structures was defined as a serious management irregularity; recourse to the provision of Article 2409 of the Italian Civil Code was triggered to protect the company from further damage.
• Venice Court of Appeal – Decree 29/11/2022 (upholding the Court) and Court of Cagliari – Decree 19/01/2022: both decisions confirm that the lack of adequate structures constitutes such a serious irregularity as to justify the activation of the inspection and judicial administration measures provided for in Article 2409 of the Italian Civil Code. In essence, even without other offences, the mere lack of internal organisation in accordance with the law is sufficient for the court to intervene on the basis of a complaint by shareholders or supervisory bodies.
• Court of Rome – Judgments of 15/09/2020 and 24/09/2020: these rulings, among the first on the new Article 2086 of the Italian Civil Code, did consider the failure to set up structures as an act of 'mala gestio' (mismanagement) by the directors, but with an important clarification. The Roman court applied the business judgement rule, stating that a director who has taken organisational measures deemed adequate ex ante cannot be held liable, even if they subsequently prove to be insufficient. In practice, it is reiterated that directors are required to act with diligence and take timely action: total inaction is culpable, while those who have put in place some proportionate control or h struments will not be judged with hindsight if those instruments – reasonable at the time of the decisions – did not prevent the crisis.
• Court of Catanzaro - Decree 06/02/2024: finally, we would like to highlight this provision, which emphasises a particular aspect. The Calabrian court pointed out that the absence of adequate structures is even more serious in companies that are not apparently in crisis. Precisely because a solvent company could suddenly slip into crisis if the warning signs are not picked up in time, the lack of structures is judged more severely. This reinforces the message that prevention is key: corporate bodies must act before the crisis manifests itself, not after.

These rulings demonstrate that the obligation to have adequate structures in place has concrete effects and that its violation has tangible consequences. In terms of liability, an administrative body that fails to organise the company adequately may be held liable for damages due to mismanagement (pursuant to Article 2476 of the Italian Civil Code, in limited liability companies) if its actions result in losses to the company's assets or creditors. The judicial removal of directors who are unable to ensure appropriate structures is now a reality in the courts, as is the removal of complacent auditors. In extreme cases, organisational inertia can lead to the opening of insolvency proceedings or even trigger criminal liability. Ultimately, the most recent case law sends a clear warning: those who manage a company must equip it with adequate tools, otherwise the judicial authorities will intervene to protect the continuity of the company and the interests of shareholders and creditors.

The support of the Firm
In light of the above, adapting organisational structures is not only a legal obligation but also an investment in the health of the company. Studio Bampo can support micro, small and medium-sized enterprises in verifying and implementing the minimum structures required by law. Through specific operating models, checklists and documentary support, the firm assists directors and supervisory bodies in implementing effective planning and control tools. Relying on experienced professionals allows you to secure your company, complying with Article 2086 of the Italian Civil Code and the Crisis Code, and to prevent crisis situations with a proactive approach.