The connection between 'corporate structures' and 'organization and management models' pursuant to Leg. Decree 231/2001 The Author examines the analogies, differences and connection between the obli-gation for companies to adopt “appropriate corporate structures” as envisaged by arts. 2381-2403 of the Italian Civil Code, and the obligation to implement suitable “or-ganization and management models”, pursuant to Leg. Decree 231/01. This analysis starts from the observation that, in terms of the goals pursued by indi-vidual regulatory systems, the operational context addressed by the creation of “ap-propriate corporate structures” also embraces the context addressed by organization and management models because, while the purpose of the former is to guarantee overall effective corporate management, the purpose of the latter is only to prevent the entity’s administrative liability should one of the crimes contemplated by Leg. De-cree 231/01 be committed. On the other hand, it is evident that the obligations that regard appropriate corporate structures address a smaller number of companies and entities than the obligation to adopt organization and management models. The au-thor also analyses both the characteristics that these corporate structures must have in order to be considered “appropriate”, and those that organization and manage-ment models must have to be considered “suitable” to meet the goals set by the re-spective regulations. He dedicates particular attention to an examination of the par-ties that must adopt corporate structures and organization and management models and of those responsible for their appropriateness and suitability. Results and conclusions: The final part of the study considers whether, and to what extent, based on an examination of the various disciplines, it is possible to establish that, in the context of modern company law, corporate structures and models consti-tute two sides of the same coin: a mainstay of correct governance and a benchmark by which to judge the diligence of the management and control bodies.
Sommario:
1. Introduction. – 1.1. Novelties in the obligation to create appropriate corporate structures. – 1.2. General principles of organization and management models pursuant to Leg. Decree 231/2001. – 1.3. Organizational structures and models: the need for comparison. – 2. Purpose and parties addressed. – 2.1. The areas affected by the duty to adopt corporate structures and organization and management models respectively. – 2.2. Parties obliged to prepare corporate structures and organization and management models. – 3. Content. – 4. The roles. – 5. The characteristics: appropriateness and suitability. – 6. Conclusions: an integrated system?
1. Introduction
1.1. Novelties in the obligation to create appropriate corporate structures
The obligation, introduced for common law joint-stock companies by the reform of company law in arts. 2381 and 2403 of the Civil Code, to adopt appropriate organizational, administrative and accounting structures is «the ‘newest’ novelty of the recent reform of joint-stock companies, which will have the effect (…) of modifying the ‘fundamentals’ of the issue of corporate liability and to a certain extent the personal liability of the managers of a business» (Buonocore, 2006).
The duty to adopt appropriate structures highlights the emergence in a juridical context of consolidated conventions borrowed from business sciences (Irrera, 2005). For some time now, company doctrine (Bianchi, 2016) has underlined the essential, or at least strategic, importance of the corporate organization for the success of a company’s operations: management control, the standardization of procedures governing the various stages of its activities, integrated processes and risk management are the various elements that make up a company’s corporate organization. The novelty lies in the fact that the creation of adequate structures is now a legal requirement and no longer simply good managerial practice.
1.2. General principles of organization and management models pursuant to Leg. Decree 231/2001
Leg. Decree 231/2001 was passed almost simultaneously with the reform of company law. This Decree introduced into Italian law the liability of legal entities, companies and associations for administrative offences resulting from a crime: the administrative liability of the entities is summed to the liability of the individual committing the crime. Members of entities, company stockholders and members of associations are no longer unconnected – at least from an economic standpoint – with any criminal proceedings regarding crimes committed for the company’s benefit or in its interest. And this circumstance clearly triggers considerable interest among stakeholders regarding the control of the regularity and legality of the organization’s activities.
Art. 6 of Leg. Decree 231/2001 introduces [continua..]
