A write-up of our associate Dott. Gianni Mario Colombo, administrative and tax expert, about general legality control techniques and control techniques specific to Third Sector Associations.
This article appeared on Ratio Quotidiano.
Regulations in Section 30 of Decree 117/2017 mostly borrow from rules regarding Boards of Auditors for public limited companies included in the Civil Code.
Those regulations pertain to both the composition of the Board (chosen among the subject categories stated in Section 2397) and the powers, duties and responsibilities of the Board of Auditors.
The fundamental question to ask at this point is whether members of supervisory bodies for Third Sector Associations hold the same duties as the auditors, in addition to the general reference included in Section 13 of the Third Sector Code and given the frequent references to the Civil Code.
In that case, how does that agree with the nature and, potentially, the size of Third Sector Associations?
Section 30 of Decree 117/2017 (Third Sector Code) establishes the following duties for the designated supervisory body
- It monitors the enforcement of laws and by-laws;
- It monitors the compliance with principles of proper administration, as per Decree 8.6.2001 n. 231, if applicable;
- It monitors the organisational, administrative and accounting set-up and its working order and adequacy;
- It monitors the compliance with civic, solidarity and social utility purposes as stated in Sections 5, 6, 7 and 8 of the Third Sector Code;
- It guarantees that the CSR report complies with the guidelines listed in Section 14 of the Third Sector Code;
- It might perform legal auditing, when the limits described in Section 31 clause 1 of the Third Sector Code are overstepped. In that case, the collective supervisory body is made up of legal auditors enrolled in the designated registry.
If we compare what is included in Section 30 of the Third Sector Code with the matter of Section 2403 of the Civil Code for public limited companies we can find:
- A full overlap of the activities described in number 1, 2 and 3 mentioned above;
- A substantial comparability with the activity described in number 6, even though a different terminology is employed following some compromises;
- An additional activity specific to Third Sector Associations as stated in number 4 and 5 listed above.
Therefore, we might assume that the supervisory body for Third Sector Associations, whether comprised of multiple judges or a single presiding judge, carries out the same activities that Boards of Auditors for Plc. and Ltd. companies perform, with the additional duty of:
- Attesting that the CSR report complies with the guidelines listed in Section 14 of the Third Sector Code (see D.M 4/7/2019);
- Supervising the effective pursuit of purposes of general interest, with respect to the non-profit performance of civic, solidarity and social utility activities (Section 5);
- Monitoring the proper correlation between general interest activities and different activities (Section 6);
- Monitoring the compliance with fundraising laws (Section 7);
- Monitoring the compliance with unavailability restrictions on capital (section 8), regarding in particular the direct distribution of earnings;
- Monitoring the assignment of the association’s assets if the association is terminated (section 9);
On the other hand, there is a lack of regulations regarding the supervisory body’s operation (see Section. 2404, Civil Code) and powers (Sections 2405 and 2406, Civil Code).
In conclusion, legal supervision and legal auditing are clearly distinguished.
The legal supervision system is described in Section 30 of the Third Sector Code, which is based on Section 2403 of the Civil Code.
Section 31 of the Third Sector Code and Decree 39/2010 outline the procedures of legal auditing.