Laws and regulations - CONSOB AND ITS ACTIVITIES
Legal Framework
« Back Printable version
Legislative Decree no. 39 of 27 January 2010: Implementation of directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts, amending directives 78/660/EEC and 83/349/EEC and repealing directive 84/253/EEC[1]
CONTENTS
Chapter I
DEFINITIONS
Article 1
(Definitions)
1. In this Legislative Decree the following definitions apply:
a) «affiliate of a statutory auditing company»: an entity connected with the auditing company through common ownership, common management or a control report;
b) «Private Insurance Code»: Legislative Decree no. 209 of 7 September 2005, containing the Code of Private Insurance Companies;
c) «public interest entities»: the companies identified in accordance with Article 16;
c-bis) «entities subject to intermediate regime»: the companies identified in accordance with Article 19-bis[2];
d) «Third country audit entity»: an entity, regardless of its legal status, which is appointed to audit the annual or consolidated accounts of a company incorporated in a Third country, and which is not an entity entered in the register of a Member state following the authorization to practice the statutory audit profession [3];
e) «group»: all the companies included in the consolidation pursuant to Legislative Decree no. 127 of 9 April 1991;
f) «Third country»: a State that is not a member of the European Union;
f-bis) «International auditing standards»: the International Standards on Auditing (ISA), the International Standard on Quality Control (ISQC 1) and other related standards defined by the International Federation of Accountants (IFAC) through the International Auditing and Assurance Standards Board (IAASB), inasmuch as they are relevant for statutory audit purposes[4];
g) «Register/Register of statutory auditors»: the register held by the Ministry of Economy and Finance in which statutory auditors and auditing companies are entered in accordance with Article 2, paragraph 1[5];
h) «statutory audit report»: the document of the statutory auditor or auditing company referred to in Article 14 and, where applicable, in Article 10 of Regulation no. 537/2014 of the European Parliament and of the Council[6];
i) «responsible auditor/s»:
1) the statutory auditor/s who have been appointed to carry out a statutory audit and who sign the audit report;
2) the auditor/s designated by the statutory auditing company as responsible for carrying out the audit on behalf of the statutory auditing company and who sign the audit report, if the audit has been assigned to a statutory auditing company[7];
i-bis) «key responsible auditor/s»:
1) the statutory auditor/s responsible for the audit as defined in letter i) of this Article;
2) In the event of the statutory audit of a group, the statutory auditor/s designated by the statutory auditing company as responsible for carrying out the audit of the consolidated accounts, as well as the auditor/s designated as responsible at the level of significant subsidiaries[8];
l) «network»: the larger structure to which a statutory auditor or a statutory auditing company belongs, for the purpose of cooperation, and which;
1) is clearly aimed at profit- or cost-sharing, or
2) shares common ownership, control or management, or
3) shares common quality control policies and procedures, or common business strategy, the use of a common brand-name or trademark or a significant part of professional resources[9];
m) «statutory audit»: an audit of annual accounts or consolidated accounts carried out in accordance with the provisions of the Civil Code and this Legislative Decree or, when carried out in another EU Member State, with the provisions of the implementation of EC Directive 2006/43, as modified by EU Directive 2014/56, in force in that Member State[10];
n) «statutory auditor»: a natural person authorised to carry out statutory audits in accordance with the Civil Code and the provisions of this Legislative Decree and entered in the Register, or a natural person authorised to perform a statutory audit in another EU Member State under the provisions of the implementation of EC Directive 2006/43, as modified by EU Directive 2014/56, in force in that Member State[11];
o) «Third country auditor»: a natural person who carries out audits of the annual or consolidated accounts of a company incorporated a third country, and who is not a natural person entered in the register of a member state following the authorization to practice the statutory audit profession [12];
p) «group auditor»: the statutory auditor or statutory auditing company charged with the statutory audit of the consolidated accounts;
q) «statutory auditing company»: a company authorised to carry out statutory audits in accordance with the provisions of this Legislative Decree and entered in the Register, or a company authorised to carry out statutory audits in another EU Member State under the provisions of the implementation of EC Directive 2006/43, as modified by EU Directive 2014/56, in force in that Member State[13];
r) «Consolidated Law on Banking»: the consolidated law on banking and credit in accordance with Legislative Decree no. 385 of 1 September 1993;
s) «Consolidated Law on Financial Intermediation»: the consolidated law on financial intermediation procedures in accordance with Legislative Decree no. 58 of 24 February 1998[14].
s-bis) «small-size companies»: the companies that at the balance sheet date do not exceed the numerical limits of at least two of the following three criteria:
1 ) total balance sheet: 4,000,000 Euro;
2) net revenues from sales and services: 8,000,000 Euro;
3) 50 workers employed on average during the year[15];
s-ter) «Home member state»: a member State in which a statutory auditor or statutory auditing company is authorized under the provisions of the implementation of EC Directive 2006/43, as modified by EU Directive 2014/56[16];
s-quater) «Host member state»: a member State in which a statutory auditor authorized in his/her home member state also seeks authorization in that state, or a member state in which a statutory auding company authorized in its home member state also seeks entry in the register or has been entered in the register in accordance with Article 2, paragraph 4, letter f-bis)[17];
s-quinquies) «European Regulation»: EU Regulation no. 537/2014 of the European Parliament and of the Council of 16 April 2014 on specific requirements regarding statutory audit of public-interest entities[18].
Chapter II
LICENCE TO PRACTICE AND CONTINUING EDUCATION
Article 2
(Licence to practice as a statutory auditor)
1. Statutory auditing can only be carried out by those entered in the Register.
2. The following natural persons are eligible to enter the Register:
a) those who meet the professional conduct requirements drawn up by the Ministry of Economy and Finance having consulted with Consob[19];
b) those who have at least a three-year degree chosen from those identified in the regulations of the Ministry of Economy and Finance, having consulted Consob[20];
c) those who have completed a traineeship in accordance with Article 3;
d) those who have passed the professional competence exam referred to in Article 4.
3. The following are eligible to enter the register:
a) natural persons authorised to perform statutory audits in one of the other Member States of the European Union who have passed an aptitude test, carried out in Italian, focusing on knowledge of the relevant Italian legislation in accordance with the procedures set out in the regulations of the Ministry of the Economy and Finance, having consulted Consob[21];
b) on condition that reciprocity of terms is guaranteed for Italian statutory auditors, Third country auditors who fulfil the conditions specified in paragraph 2 who, if appropriate, have taken part in such States in refresher courses and passed an aptitude test carried out in Italian, focusing on knowledge of the relevant Italian legislation in accordance with the procedures set out in the regulations of the Ministry of the Economy and Finance, having consulted Consob[22].
4. Companies which meet the following conditions are eligible to enter the Register:
a) the members of the Board of Directors or the administrative board who meet the professional conduct requirements drawn up by the Ministry of Economy and Finance having consulted with Consob[23];
b) the majority of the members of the Board of Directors or the administrative board are natural persons authorised to perform statutory audits in one of the Member States of the European Union;
c) in the companies regulated by Chapters II, III and IV of Title V of Book V of the Civil Code, both numerical and shareholder majorities are made up of entities authorised to perform statutory audits in one of the Member States of the European Union;
d) in the companies regulated by Chapters V and VI of Title V of Book V of the Civil Code, registered non-transferable shares by endorsement;
e) in the companies regulated by Chapters V, VI and VII of Title V of Book V of the Civil Code, the majorities are made up of entities authorised to perform statutory audits in one of the Member States of the European Union;
f) those responsible for statutory audits are natural persons in the Register;
f-bis) the statutory auditing companies authorized in a member state that have filed an application for entry in the Register. These companies are allowed to carry out statutory audits on condition that the person responsible for the audit on behalf of the auditing company meets the requirements specified in paragraphs 2 and 3, letter a)[24].
5. For simple partnerships the advertising methods set out in Article 2296 of the Civil Code shall be respected.
6. Entry in the Register confers the right to use the title of statutory auditor.
7. The Ministry of Economy and Finance, having consulted Consob, has drawn up the regulations defining the criteria for the assessment of the equivalence of the requirements referred to in paragraph 3 paragraph b), and has identified the Third countries guaranteeing such equivalence[25].
Article 3
(Traineeship)[26]/[27]
1. The traineeship:
a) is aimed at the acquisition of the ability to apply in practice the theoretical knowledge required to pass the professional competence examination and to practice the statutory audit profession;
b) lasts at least three years;
c) is carried out with a statutory auditor or a statutory auditing company with authorisation in one of the Member States of the European Union, which can guarantee the trainee's practical training. Statutory auditors can accept three trainees at the most[28];
d) implies for the trainee the obligation to collaborate in the performance of the statutory audit engagements of the statutory auditor or statutory auditing company with which the traineeship is carried out. The statutory auditors and the statutory auditing companies with which the traineeship is carried out shall guarantee and supervise the actual collaboration of the trainee in the activities related to one or more statutory audit engagements; the violation of the aforementioned obligation by the statutory auditors and the statutory auditing companies is tantamount to a violation of the professional code of conduct;
e) trainees comply with the provisions in the matter of professional secrecy.
1-bis. Traineeships can be carried out at the same time as the two-year period of studies for the obtainment of post-graduate degrees or part thereof, on the basis of proper agreements, within the context of a framework agreement with the Ministry of Education, University and Research and the Ministry of Economy and Finance.
2. For each trainee registered, the traineeship Register shall contain:
a) the complete details of the trainee and the address given by the latter as a postal address for all communications regarding the traineeship procedures;
b) the start date of the traineeship;
c) the entity with which the traineeship is carried out;
d) traineeship transfers, interruptions and any other modifications regarding the carrying out of the traineeship.
3. The information referred to in paragraph 2 shall be held in electronic form and shall be freely accessible on the website of the person in charge of keeping the traineeship register in accordance with Article 21.
4. Within sixty days of the conclusion of each year of traineeship, the trainee shall draw up a report on his/her activities specifying the actions and duties relating to statutory auditing activities he/she has taken part in preparing and carrying out, with details of the object of the activities and the technical and practical duties which he/she has carried out or assisted with. The report shall include a statement by the statutory auditor or statutory auditing company in which the traineeship has been held that the information contained therein is truthful, and shall be forwarded to the person in charge of keeping the traineeship register. In case of false statements, the sanctions referred to in Article 24 can be imposed on the trainee and the statutory auditor or statutory auditing company in which the traineeship has been held.
5. Trainees intending to complete their traineeship period with another statutory auditor or statutory auditing company shall give written notice to the person in charge of keeping the traineeship register attaching the traineeship termination and start date certifications issued by the entity in which the traineeship has been carried out and that where it will continue respectively. The report referred to in paragraph 4 shall be drawn up and forwarded to the person in charge of keeping the traineeship register including on each transfer of the traineeship.
6. A traineeship period carried out with a different party from that previously indicated is only eligible for the purposes of professional qualification if advance written notice has been given in accordance with paragraph 5.
7. Traineeship periods carried out wholly or partially with an authorised statutory auditor or statutory auditing company in another Member State of the European Union are eligible for the purposes of professional qualification upon certification that it was effectively carried out by the competent authorities in the State in question.
8. The Ministry of Economy and Finance, in concert with the Ministry of Justice, having consulted Consob, shall regulate the implementation procedures of this Article, with definitions which include:
a) the contents and presentation procedures for submission of the applications for entry in the traineeship registers;
b) the procedures for carrying out the traineeship for the purposes of paragraph 1, letter a);
c) the reasons for termination and suspension of the trainee from the traineeship register;
d) the procedures for issuing a traineeship certification;
e) the disclosure obligations of those entered in the traineeship register and the entities at which the traineeship was carried out[29].
Article 4
Professional competence examination
1. The Ministry of Economy and Finance, in agreement with the Ministry of Justice, shall announce at least once a year professional competence examination for authorization to practice the statutory audit profession[30].
2. The professional competence examination aims to ascertain whether the candidate possesses the theoretical knowledge required to practice the profession of statutory auditor and the practical ability to apply this knowledge and concentrates on the following subjects in particular:
a) general accounting;
b) cost and management accounting;
c) compliance with financial statements and consolidated financial statements;
d) national and international accounting standards;
e) financial analysis;
f) risk management and internal auditing;
g) national and international auditing principles;
h) compliance with statutory auditing;
i) professional ethics and independence;
l) professional auditing techniques;
m) civil and commercial law;
n) company law;
o) bankruptcy law;
p) tax law;
q) employment and social security law;
r) information technology and operating systems;
s) political, corporate and financial economics;
t) fundamental principles of financial management;
u) mathematics and statistics.
3. For the subjects referred to in paragraph 2, letters m) to u), the assessment of the theoretical knowledge and the ability to apply them in practice is limited to what is necessary to perform the audit.
3-bis. The procedures for exemption from the examination of the theoretical knowledge of the subjects referred to in paragraph 2 that have already formed the subject matter of university examinations, shall be indicated within the context of the framework convention referred to in Article 3, paragraph 1-bis[31].
4. The Ministry of Justice, in concert with the Ministry of Economy and Finance, having consulted Consob, regulates the implementation procedures of this Article, with definitions which include:
a) the contents and presentation procedures for application for entry to the professional exam;
b) procedures for the appointment of the examination board and the obligations to which it is bound;
c) the contents and means to sit the professional exam;
d) cases of equivalence with State examinations for certification to exercise regulated professions and any additions required[32].
4-bis. For the purposes of entry in the Register, those who have passed the state examinations referred to in Articles 46 and 47 of Legislative Decree no. 139 of 28 June 2005 shall be exempted from the professional competence examination, without prejudice to the obligation to complete the legally required traineeship period for admission to the statutory audit profession, in compliance with the prescribed requirements, in accordance with EC Directive 2006/43, by a decree of the Ministry of Justice, having consulted the Ministry of Economy and Finance, to be adopted within twenty days from the date of entry into force of this provision, without providing for greater obligations and new examination dates for the candidates[33].
5. With the regulation referred to in paragraph 4, the Ministry of Justice can supplement and specify the subjects referred to in paragraph 2[34].
Article 5 [35]
(Continuing education)
1. Those entered in the Register shall comply with continuing education obligations.
2. Continuing education consists of the participation in the professional refresher courses annually indicated by the Ministry of Economy and Finance and aimed at the improvement and maintenance of the theoretical knowledge and professional capacity. At least 50% of a refresher course shall cover core auditing subjects, i.e., risk management and internal auditing, applicable national and international auditing standards to the statutory audit profession provided for by EC Directive 2006/43, as amended by EU Directive 2014/56, statutory audit law, professional code of conduct, independence and professional audit technique[36]/[37].
3. A continuing education period shall last three years. A three-year education period shall take effect from January 1st to December 31st of each year.
4. The effort required to comply with the education obligations is expressed in educational credits.
5. Each year candidates shall acquire at least 20 educational credits, totalling at least 60 educational credits in a three-year period[38].
6. Continuing education activities can be performed:
a) Participating in the remote education programs of the Ministry of Economy and Finance, including through affiliated organizations;
b) At public or private companies or entities equipped with adequate organisational structures in view of the nature of training activities and the implementation modalities of training programs, accredited with the Ministry of Economy and Finance through the underwriting of a proper convention.
7. The entities which meet the following requirements can request the accreditation referred to in paragraph 6, letter b);
a) Adequate number of employees to guarantee the quality of the educational programs offered, in consideration of the organizational structure, territorial articulation and professional experience;
b) At least three-year proven experience in the field of the professional training of university students, professionals in the legal/economic and accounting fields, managers and public officials, in the subjects referred in Article 4;
c) For the training activities, employment of teachers with proven professional experience in the subjects referred to in Article 4;
d) Organization conformant to criteria of inexpensiveness of services.
The regulation referred to in paragraph 1 defines the procedures with which continuing education can be carried out with companies or entities equipped with adequate organisational structures and according to programmes accredited by the Ministry of Economy and Finance, after consulting Consob.
Article 5-bis [39]
(Training of persons in charge of quality control)
1. The Ministry of Economy and Finance, having consulted Consob, shall govern by decree the criteria for the accreditation of the training courses intended for the persons in charge of quality reviews, as well as the programs and minimum contents of such courses.
2. The supervisory authorities shall autonomously see to the training of their personnel responsible for carrying out quality reviews, including through the definition of shared professional refresher courses.
Chapter III
REGISTER
Article 6
(Inclusion in the Register)
1. The Ministry of Economy and Finance, in concert with the Ministry of Justice, after consulting Consob, with its own regulations, shall establish:
a) the content and method of presentation of applications for entry in the Register of statutory auditors and auditing companies;
b) procedures and terms within which registration applications will be considered and for the assessment of the requisites[40].
2. Candidates failing to meet the requirements for qualification shall be informed by the Ministry of Economy and Finance of this occurrence and shall have a period not exceeding six months to remedy their shortcomings. If, within the time limit given, the candidate has not done so, the Ministry of Economy and Finance, shall provide by decree for removal from the Register[41].
3. The candidate shall be informed of the cancellation provision and the reasons for it.
Article 7 [42]
(Information contained in the Register)
1. For each statutory auditor, the Register contains at least the following information:
a) first name, surname, place and date of birth;
b) registration number;
c) residency, even if abroad, and domicile in Italy, and, if different, the tax domicile;
d) tax code identifier and VAT number;
d-bis) certified email address;
e) the name, registration number, address and website, of any statutory auditing company by which the auditor is employed, or of which he is a partner or director;
f) any other membership that the auditor has in registers of statutory auditors in other EU Member States as well as any other membership that the auditor has in rosters, registers or lists of auditors in third countries, with an indication of any registration numbers and the competent authorities which keep the registers;
g) any audit engagements held at entities of public interest or entities subject to intermediate regime;
h) any rulings in force, adopted in accordance with Articles 24, paragraph 1, letters e) and g), and 26, paragraph 1, letters c) and d);
i) Indication of any networks to which the statutory auditors belongs, along with the names and addresses of all other professionals or undertakings belonging to the network and its affiliates or, alternatively, the place where such information is publicly available. For statutory auditors who are employees, members or directors of statutory auditing companies, this information shall be exclusively provided by the statutory auditing company.
2. For each audit firm, the Register shall contain at least the following information:
a) company or business name;
b) registration number;
c) the address of the head offices and all offices;
d) contact information for the company and the name of the contact person, as well as any Internet site;
e) name, surname and registration number of the statutory auditors employed by the company or who are members or directors, with an indication of any rulings in force, adopted in accordance with Articles 24, paragraph 1, letters e) and g), and 26, paragraph 1, letters c) and d);
f) name, surname and domicile in Italy of members of the Board of Directors or the Management Board, together with an indication of any registration they have in rosters or registers of statutory auditors or auditors in other EU Member States or other countries, and specifying any registration numbers and the competent authorities for the keeping of registers;
g) the company's VAT number;
h) name, surname and domicile of partners, together with an indication of any registration they have in rosters or registers of statutory auditors or auditors in other EU Member States or other countries, and specifying any registration numbers and the competent authorities for the keeping of registers;
i) the name of any networks to which the company belongs with an indication of the names and addresses of all other professionals or undertakings belonging to the network and its affiliates or, alternatively, the place where such information is publicly available;
l) any other membership that the company has in registers of statutory auditors in other EU Member States, as well as any other membership in rosters, registers and lists of auditors in third countries, with an indication of any registration numbers and the competent authorities for the keeping of the registers;
m) any audit engagements held at entities of public interest or subject to intermediate regime;
n) any rulings in force, adopted in accordance with Articles 24, paragraph 1, letter g), and 26, paragraph 1, letter d).
3. Third country auditors and auditing entities entered in the Register, in accordance with Article 34, shall be clearly indicated as such and not as qualified entities to carry out statutory audits in Italy.
4. The Register shall contain the name and address of the Ministry of Economy and Finance and of Consob, with an indication of their respective powers of supervision over statutory auditing activities.
5. The information referred to in this article shall be held in the Register in an electronic form and shall be freely accessible on the website of the person in charge of keeping the register in accordance with Article 21.
6. The entities entered in the Register shall communicate promptly to the entity in charge of the Register any change in the information related to them. The entity in charge of the Register is responsible for updating the Register.
7. The Ministry of Economy and Finance, after consulting Consob, shall govern by regulation the implementation of this Article, defining in particular the content, procedures and terms of information transmission and updating by those entered in the Register.
Article 8 [43]
(Sections A and B of the Register)
1. The person in charge of keeping the Register shall receive notification, in accordance with the procedures referred to in Article 21, paragraph 6, letter d), of any statutory audit engagement undertaken in compliance with this Legislative Decree. The statutory auditing company shall also, for each engagement, communicate the names of the responsible auditor and statutory auditors who have contributed to carrying it out.
2. Statutory auditors entered in the Register who carry out statutory auditing activities or work on statutory auditing activities in a statutory auditing company, or who have carried out the aforementioned activities in the preceding three years, are placed in a proper section named «Section A».
3. Those who have not undertaken statutory audits or have not worked on statutory auditing activities in a statutory auditing company for three consecutive years are entered ex officio in a proper section of the Register named «Section B» and are not subject to the quality reviews referred to in Article 20.
4. Those registered in «Section A» and «Section B» of the Register in any case are required to comply with the obligations in the matter of information disclosure and updating, in accordance with Article 7, continuing education and payment of the annual registration fees.
Chapter IV
IMPLEMENTATION OF THE STATUTORY AUDIT
Article 9 [44]
(Professional ethics and professional scepticism)
1. The entities authorised to practice the statutory audit profession shall comply with the principles of professional ethics drawn up by professional bodies and associations together with the Ministry of Economy and Finance and Consob, and adopted by the Ministry of Economy and Finance, having consulted Consob. To this purpose, the Ministry of Economy and Finance shall underwrite a convention with the professional bodies and associations concerned, in order to define the procedures for drawing up standards [45].
2. The statutory auditor or statutory auditing company that carries out the statutory audit of accounts shall exercise in the course of the audit proper professional scepticism, acknowledging the possibility that significant errors may occur for facts or behaviours suggesting irregularities, including fraud or errors[46].
3. The statutory auditor or statutory auditing company that carries out the statutory audit of accounts shall exercise proper professional scepticism, in particular, in the course of the review of the estimates provided by the management in reference to: fair value, asset value reduction, provisions, future cash flow and the capacity of the undertaking to carry on as a working entity[47].
4. For the purpose of this article, "professional scepticism" shall mean a behaviour characterized by a dubitative approach, constant monitoring of the conditions that might indicate a potential inaccuracy due to error or fraud, and a critical evaluation of the documents pertaining to the audit[48].
Article 9-bis [49]
(Confidentiality and professional secrecy)
1. All information and documents viewed by the statutory auditors and the statutory auditing companies to perform the statutory audit are protected by the obligations of confidentiality and professional secrecy[50].
2. Entities authorised to carry out statutory audits of the accounts shall comply with the principles of confidentiality and professional secrecy drawn up by professional bodies and associations together with the Ministry of Economy and Finance and Consob, and adopted by the Ministry of Economy and Finance, having consulted Consob. To this purpose, the Ministry of Economy and Finance shall underwrite a convention with the professional bodies and associations concerned, in order to define procedures for drawing up standards [51].
3. The confidentiality and professional secrecy obligations referred to in paragraphs 1 and 2 shall not counteract the application of the provisions of this decree and, where applicable, of the European regulation[52].
4. The confidentiality and professional secrecy obligations referred to in paragraphs 1 and 2 shall continue to be valid even after the end of the participation in the audit engagement[53].
5. Where a statutory auditor or statutory auditing company is substituted by another statutory auditor or statutory auditing company, the leaving statutory auditor or statutory auditing company shall allow the statutory auditor or statutory auditing company taking over to have access to all information concerning the audited entity and to the last audit of such entity[54].
6. Where a statutory auditor or statutory auditing company carries out the statutory audit of the accounts of an undertaking that belongs to a group, whose parent company has its principal place of business in a third country, the rules in the matter of confidentiality and professional secrecy referred to in paragraphs 1 and 2 shall not prejudice the transfer to the group auditor situated in the third country, by the statutory auditor or statutory auditing company, of the documentation pertaining to the auditing activity, if said documentation is necessary to carry out the audit of the consolidated accounts of the parent company[55].
7. A statutory auditor or statutory auditing company that carries out the statutory audit of a company that has issued securities in a third country or that belongs to a group that files the consolidated financial statements in a third country can transfer to the competent authorities of that third country the working papers or other documents it holds pertaining to the audit of the entity in question, only if the cooperation agreements referred to in Article 36 are in place[56].
8. The transfer of information to the auditor of the group situated in a third country shall be effected in compliance with EC Directive 95/46[57], Chapter IV, and with the applicable national legislation on the protection of personal data[58].
Article 10 [59]
(Independence and objectivity)
1. The statutory auditor and statutory auditing company carrying out a statutory audit, as well as any natural person capable of influencing directly or indirectly the outcome of the audit, shall be independent of the audited company and shall not be involved in any way whatsoever in its decision-making processes[60].
1-bis. The independence requirement shall apply during the period to which the accounts to be audited refer and during the period of performance of the statutory audit itself[61].
1-ter. The statutory auditor and statutory auditing company shall adopt all reasonable measures so as to ensure that its independence is not influenced by any conflict of interest, whether potentially or not, or by any business or other relations, whether directly or indirectly, regarding the statutory auditor and statutory auditing company and, where applicable, its networks, members of its boards, managers, auditors, employees and any natural persons whose services are made available to, or are under the control of, the statutory auditor and statutory auditing company, or any persons directly or indirectly connected to the statutory auditor and statutory auditing company[62].
2. The statutory auditor and statutory auditing company shall not carry out the statutory audit of the accounts of a company if there exist risks of self-review and personal interest, or risks deriving from advocacy, familiarity or threat of intimidation, caused by financial, business, employment or other relations existing between such company and the statutory auditor or statutory auditing company, or any natural person capable of influencing the outcome of the audit, based upon which an informed, objective and reasonable third party would conclude, in view of the measures adopted, that the independence of the statutory auditor or statutory auditing company is compromised[63].
3. The statutory auditor, statutory auditing company, its key auditors in charge of the audit, its professional personnel and any natural persons whose services are made available to, or are under the control of, such statutory auditor or statutory auditing company, and who directly participates in the statutory audit activities, as well as the persons closely associated with them in accordance with Article 1 (2) of EC Directive 2004/72, cannot hold financial instruments issued, guaranteed or otherwise supported by an entity subject to their statutory audit, shall refrain from any operations on such instruments and shall not have on the same instruments any other relevant and direct beneficial interest, unless in the case of interests indirectly held through diversified collective investment schemes, including managed funds, such as pension funds or life insurance[64].
4. The statutory auditor or statutory auditing company shall document in its working papers all significant threats to its independence and the safeguards applied to mitigate such risks.
5. The persons referred to in paragraph 3 shall not participate or influence in any way the outcome of a statutory audit of an audited entity if they:
a) Hold financial instruments of the same entity, unless in the case of interests indirectly held through diversified collective investment schemes;
b) Hold financial instruments of an entity connected with an audited entity, whose ownership could determine a conflict of interest or could be generally perceived as such, unless in the case of interests indirectly held through diversified collective investment schemes;
c) Have had a permanent employment contract or business relationship or the like with the audited entity in the period referred to in paragraph 1-bis, which could determine a conflict of interest or could be generally perceived as such[65].
6. If, during the reference period of the accounts, an audited company is taken over by another company, merges with it or takes it over, the statutory auditor or statutory auditing company shall identify and evaluate any existing or recent interests or relations, including non-audit services provided to said company, which could compromise, in view of the available measures, its independence and ability to carry on the statutory audit after the date of effectiveness of the merger or acquisition. Within three months of the date of approval of the merger or acquisition plan, the statutory auditor or statutory auditing company shall adopt any necessary measures to end the interests or relations referred to in this paragraph and, where possible, shall adopt measures aimed at minimizing the threats to its independence deriving from such interests and relations[66].
7. The statutory auditor or key responsible auditor carrying out the audit on behalf of a statutory auditing company shall not hold offices in the administrative bodies of the entity that has requested the audit, or work as a self-employed professional or employee for the same entity, performing important managerial functions, before at least a year has elapsed from the moment when he/she has ceased his/her activity as statutory auditor or key responsible auditor, in relation to the audit appointment. This prohibition shall also apply to the employees and members, other than key responsible auditors, of the statutory auditor or statutory auditing company, as well as to any other natural persons whose services are made available to, or are under the control of, the statutory auditor or statutory auditing company, where these persons personally hold a licence to practice as a statutory auditor, for a period of a year from their direct involvement in the statutory audit appointment.[67]
8. Partners and Members of the Board of the statutory auditing company or an affiliate shall not become involved in carrying out the statutory audit in a way that could compromise the independence and objectivity of the responsible auditor.
9. Fees for statutory audit appointments shall not be subject to any condition, shall not be established on the basis of the results of the audit, and shall not depend in any way on the provision of non-audit services to the company requesting the audit, its parent companies or subsidiaries, by the statutory auditor or statutory auditing company or their networks.
10. Fees for statutory audit appointments shall be determined so as to ensure the quality and reliability of the work. To this end, entities responsible for carrying out statutory audits shall determine the professional resources and hours necessary for this role taking into account:
a) the size, composition and risk of the most significant income, economic and financial items of the accounts of the company requesting the audit, as well as the risk profiles associated with the process of consolidation of data related to the companies in the group;
b) the technical skills and experience that the audit work requires;
c) the need to ensure, over and above the actual execution of inspections, proper supervision and guidance, in accordance with the principles set out in Article 11.
11. The amount of the remuneration of the employees of the statutory auditing companies involved in carrying out statutory auditing activities shall not be determined in any way whatsoever by the outcome of the audits carried out by them.
12. Entities authorised to carry out statutory audits of the accounts shall comply with the principles of independence and objectivity drawn up by professional bodies and associations together with the Ministry of Economy and Finance and Consob, and adopted by the Ministry of Economy and Finance, after consulting Consob. To this purpose, the Ministry of Economy and Finance shall underwrite a convention with the professional bodies and associations concerned, in order to define procedures for drawing up standards.
13. The persons referred to in paragraph 3 shall not solicit or accept any gifts or favours of a pecuniary nature from the audited entity or any entity connected to an audited entity, unless a third informed, objective and reasonable party would consider their value negligible or insignificant[68].
Article 10-bis [69]
(Statutory audit preparation and assessment of threats to independence)
1. Before accepting or carrying out a statutory audit engagement, the statutory auditor or statutory auditing company shall evaluate and document:
a) Fulfilment of the independence and objectivity requirements referred to in Article 10 and, where applicable, Article 17;
b) Existence of threats to its independence and, if any, adoption of adequate measures to mitigate them;
c) Availability of competent professionals, time and resources required to adequately carry out the audit engagement;
d) In the case of a statutory auditing company, whether the responsible auditor hold a licence to practice as a statutory auditor in accordance with this decree.
Article 10-ter [70]
(Internal organization)
1. In order to protect the independence and objectivity of a statutory auditor carrying out an audit on behalf of a statutory auditing company, the company shall set out policies and procedures assuring compliance with the provisions referred to in Article 10, paragraph 8.
2. The statutory auditor or statutory auditing company shall adopt adequate administrative and accounting procedures, internal quality control systems, effective risk assessment procedures and effective control and protection mechanisms in the matter of electronic data processing systems. Such internal quality control systems shall be designed so as to ensure with reasonable certainty that the decisions and procedures are observed at all levels of the statutory auditing company or work team of the statutory auditor.
3. The statutory auditor or statutory auditing company shall set out policies and procedures conceived in such a way as to ensure with reasonable certainty that all its employees, as well as all natural persons whose services are made available to, or are under the control of, the auditing company, and that directly participate in the statutory auding activities, have adequate knowledge and experience to carry out the audit engagement.
4. The statutory auditor or statutory auditing company shall set out policies and procedures to be conceived so as to ensure with reasonable certainty that the outsourcing of auditing activities does not compromise the effectiveness of its internal quality control, or the capacity of the competent authorities to supervise observance, by the auditor or statutory auditing company, of the obligations set out in this decree and, where applicable, in the European regulation. Outsourcing of auditing activities shall not affect the responsibility of the statutory auditor or statutory auditing company towards the audited entity.
5. The statutory auditor or statutory auditing company shall adopt appropriate and effective organizational and administrative provisions to prevent, identify, eliminate or manage and internally divulge any threats to its independence in accordance with Articles 10 and 10-bis.
6. The statutory auditor or statutory auditing company shall implement an internal quality control system to be conceived so as to ensure with reasonable certainty that the audit appointments are carried out in compliance with professional principles and the provisions of applicable laws and regulations. The internal quality control system shall be comprised of adequate policies and procedures to guarantee continuity and regularity in the course of the activities and to organize the structure of the audit dossier referred to in Article 10-quater, paragraph 7, and to create, monitor and review the work of those who directly participate in the audit.
7. The statutory auditor or statutory auditing company shall carry out every year an assessment of the adequacy and effectiveness of its internal quality control system adopted in compliance with this decree and, where applicable, the European regulation, and shall adopt appropriate measures to remedy such deficiencies. The statutory auditor or statutory auditing company shall keep documentation of the assessment results and of the measures identified to remedy any deficiencies found.
8. The statutory auditor or statutory auditing company shall adopt appropriate and effective organizational and administrative provisions to deal with and document any occurrences that have or could have severe consequences for the integrity of its statutory auditing activities.
9. The statutory auditor or statutory auditing company shall adopt policies and procedures in the matter of remuneration, including profit sharing provisions, in order to provide adequate incentives to the quality of the statutory audit work. For the purpose of the evaluation and remuneration of the personnel who participates in the audits or could influence its execution, the amount of the turnover generated by the provision of non-audit services to the audited company shall not be considered.
10. The policies and procedures referred to in this article shall be documented and disclosed to the employees and collaborators of the statutory auditor or statutory auditing company.
11. The internal quality control system shall be proportionate to the extent and complexity of the statutory auditing activities carried out. The statutory auditor or statutory auditing company shall be capable of proving to the competent authorities that the internal quality control policies and procedures are adequate to the extent and complexity of the statutory auditing activities carried out.
Article 10-quater [71]
(Work organization)
1. Where the statutory audit is carried out by a statutory auditing company, this shall designate at least one responsible auditor. Audit quality, independence and expertise shall be the principal criteria that guide the choice of the responsible auditor and related designation. Sufficient resources and skilled personnel are provided to the responsible auditor in order for him/her to adequately carry out the activities.
2. The responsible auditor shall be actively involved in the performance of the audit for which he/she is responsible.
3. In carrying out the statutory audit, the responsible auditor shall devote enough time and assign sufficient resources to the audit in order to adequately play his/her role.
4. The statutory auditor or statutory auditing company shall keep documents relating to any violations of the provisions of this decree and, where applicable, of the European regulation, except in case of minor violations, any consequences of such violations and the measures adopted to remedy them and to modify the internal quality control system. The statutory auditor or statutory auditing company shall prepare every year a report containing a general description of any modifications made to be brought to their personnel’s attention.
5. In the event that the statutory auditor or statutory auditing company utilizes external consultants, they shall document the requests for opinions made and the opinions received.
6. The statutory auditor or statutory auditing company shall keep proper records of each audited client, specifying the client’s company name, address and place of business, the responsible auditors, where the audit is carried out by a statutory auditing company, and statutory audit and other service fees, broken down by each individual tax year.
7. The statutory auditor or statutory auditing company shall create an audit dossier for each statutory audit, specifying the data and documents referred to in Article 10-bis and, where applicable, the data and documents referred to in Articles 6 to 8 of the European regulation. The audit dossier shall contain all relevant data and documents in support of the report referred to in Article 14 and, where applicable, of the reports referred to in Articles 10 and 11 of the European regulation, as well as the necessary data and documents to monitor compliance with the provisions of this decree and other applicable provisions. The audit dossier shall be closed within sixty days from the signing of the aforementioned audit report. The documents and information referred to in this paragraph and, where applicable, those referred to in Article 15 of the European regulation, shall be kept for ten years from the audit report date to which they refer.
8. The statutory auditor or statutory auditing company shall keep proper records of any claim relating to the statutory audits carried out for 10 years from the audit report date to which they refer.
Article 10-quinquies [72]
(Statutory audit of consolidated accounts)
1. In the case of a statutory audit of the consolidated accounts of a group of undertakings, the group auditor shall accept full responsibility for the audit report referred to in Article 14 or, where applicable, for the audit report referred to in Article 10 of the European regulation and the additional report intended for the internal audit committee referred to in Article 11 of the European regulation.
2. For the purposes of the audit of consolidated accounts, the group auditor shall evaluate the work carried out by any other statutory auditors, statutory auditing companies, auditors and auditing bodies of third countries and shall keep records of the nature, duration and extent of the work carried out by them and, where appropriate, of the review carried out by the auditor on the relevant parts of the audit documentation of such auditors. The group auditor shall examine the work carried out by any other statutory auditors, statutory auding companies, auditors and auditing bodies of a third country, for group audit purposes, and shall keep a record of such review. The documents kept by the group auditor shall be adequate so as to allow the competent authority to examine the work carried out by them.
3. For the purposes of the performance of the activities referred to in paragraph 2, second clause, the group auditor shall obtain the consent of the statutory auditors, statutory auditing companies, and auditors or auditing bodies of a third country, to the transfer of, or access to, the relevant documents in the course of the performance of the audit of the consolidated accounts, as a condition for the auditor to rely on the work carried out by them.
4. If the group auditor is in no condition to carry out the activities referred to in paragraph 2, second clause, he/she shall adopt adequate measures and promptly inform the competent authorities. These measures shall include, where appropriate, the carrying out of a different statutory audit of the concerned audited company, which can be carried out either directly or through outsourcing, requesting of the directors of the audited company additional relevant documents and information for the audit and the carrying out, by the group auditor, of verifications, controls and examinations of acts and documents at the audited company.
5. In the case of a quality review or inquiry concerning the statutory audit of the consolidated accounts of a group of undertakings, the group auditor shall provide to the competent authority, if requested, the relevant documents held by him/her in relation to the audit work performed by the auditors, audit entities or firms of a third country, for the purposes of the group audit, including all the relevant working papers.
6. The competent authority may request the competent authorities of the Member States concerned additional documents relating to the audit work performed by the statutory auditors or audit firms for the purposes of the group audit, in accordance with Article 33. If the audit of a parent or controlled undertaking of a group of undertakings is carried out by one or more auditors or audit entities of a third country, the competent authority may request the competent authorities of that third country additional documents on the work performed by the auditors or audit entities of the third country, in compliance with the cooperation agreements referred to in Article 36.
7. By way of derogation from paragraph 6, second clause, if the audit of a parent or controlled undertaking of a group of undertakings is carried out by one or more auditors or audit entities of a third country, which has no cooperation agreement in place in accordance with Article 36, the group auditor shall also have the duty to guarantee, if required, that the additional documents on the audit work performed by such auditors or audit entities of the third country, including the relevant working papers for the group audit, are duly submitted. To guarantee such submission, the group auditor shall keep a copy of such documents or, alternatively, agree with the auditors or audit entities of the third country that it may have free and unlimited access, upon request, to such documents, adopting any other appropriate measure. If the transmission of working papers from a third country to the group auditor is not possible for legal or other reasons, the documents kept by the group auditor shall include evidence that he/she has adopted appropriate measures to access the audit documents and, in the case of impediments other than the legal limitations imposed by the legislation in force in the third country concerned, supporting evidence of the existence of such impediments.
Article 11 [73]
(Auditing standards)
1. Statutory audits shall be carried out in accordance with the international auditing standards adopted by the European Commission pursuant to Article 26, paragraph 3 of EC Directive 2006/43, as modified by EU Directive 2014/56.
2. Until the standards referred to in paragraph 1 are adopted by the European Commission, statutory audits shall be carried out in accordance with the auditing standards developed by professional bodies and associations, keeping into account the international auditing standards, together with the Ministry of Economy and Finance and Consob, and adopted by Ministry of Economy and Finance, having consulted Consob. To this purpose, the Ministry of Economy and Finance and Consob shall underwrite a convention with the professional bodies and associations concerned, in order to define procedures for drawing up standards.
3. While the international auditing standards adopted in accordance with paragraph 1 are in force, the Ministry of Economy and Finance, having consulted Consob, may set out additional auditing procedures or obligations, to the extent necessary to lend greater credibility and quality to the financial statements, by way of the procedure referred to in paragraph 2.
Article 12 [74]/[75]
(Preparation of the standards)
1. For the purposes of the implementation of Articles 9, paragraph 1, 10, paragraph 12, and 11, paragraph 3, the Ministry of Economy and Finance shall underwrite a convention with the concerned professional bodies and associations in order to define procedures for drawing up standards.
2. The standards drawn up by the professional bodies and associations signing the convention referred to in paragraph 1 shall take account of those issued by international bodies.
Article 13 [76]
(Appointment, revocation and dismissal from engagements, termination of the contract)
1. Except as provided in Article 2328, second paragraph, number 11) of the Civil Code, and without prejudice to the fact that audit engagements by public-interest entities are governed by Article 17, paragraph 1, of this decree, and by Article 16 of the European Regulation, the shareholders' meeting, on a reasoned proposal of the supervisory body, shall appoint the statutory auditor or the statutory auditing company and determine the amount payable to them for the entire duration of the engagement and any criteria for the adjustment of this amount during the engagement[77].
2. Except as provided in Article 17, paragraph 1, of this decree, the engagement shall have a term of three years and expire at the shareholders' meeting called to approve the financial statements for the third year of the engagement[78].
2-bis. Any contractual clause limiting the choice of the statutory auditor or the statutory auditing company by the shareholders' meeting to certain categories or rosters of statutory auditors or statutory auditing companies shall be prohibited and, where provided, shall be considered null and void[79].
3. The shareholders' meeting shall revoke the engagement, after hearing the supervisory body, on recourse to just cause, providing at the same time to assign the engagement to another statutory auditor or statutory auditing company according to the procedures referred to in paragraph 1. Differing views on accounting methods or audit procedures do not constitute just cause for revocation[80].
4. The statutory auditor or statutory auditing company responsible for an audit may resign from office but they are liable for any compensation in the cases and in accordance with the procedures defined by regulation by the Ministry of Economy and Finance, after consulting Consob. In any event, the resignation shall be carried out in such time and manner as to enable the company being audited to provide otherwise, except in the case of gross impediment with supporting evidence from the auditor or statutory auditing company. This same regulation defines the cases and procedures in which the contract assigning the audit engagement can be resolved by consensus, or for just cause[81].
5. In the cases referred to in paragraph 4 the company subject to statutory audit shall promptly assign a new engagement.
6. In the event of resignation or consensual termination of a contract, the statutory audit functions shall continue to be performed by the same statutory auditor or statutory auditing company until a decision on a new appointment has come into effect and, in any case, not later than six months from the date of resignation or termination of the contract.
7. The company being audited and the statutory auditor or statutory auditing company shall promptly inform the Ministry of Economy and Finance, and in the case of statutory audits relating to public interest entities and entities subject to intermediate regime, Consob, as regards revocation, resignation or consensual termination of the contract, providing adequate explanations on the reasons behind them[82].
8. Deliberations on appointment and revocation adopted by shareholders' meetings in companies limited by share Article 2459 of the Civil Code is applicable[83].
9. In case of statutory audit of a public interest entity as referred to in Article 16, the shareholders of such entity representing at least 5 per cent of the share capital, or the supervisory body, or Consob, shall be entitled to go to the civil court for the revocation of the statutory auditor or statutory auditing company where there are justified reasons[84].
Article 14 [85]
(Auditing reports and opinions on financial statements)
1. The statutory auditor or statutory auditing company responsible for carrying out the statutory audit:
a) expresses in a specific report an opinion on the annual and consolidated accounts, where applicable, and illustrates the results of the statutory audit;
b) verifies over the year the correct keeping of the books and the correct representation of the company events in the accounting entries[86].
2. The report, prepared in accordance with the auditing standards referred to in Article 11, shall include:
a) an introductory paragraph that identifies the annual or consolidated accounts subject to statutory audit and the regulatory framework on financial disclosure applied to its preparation;
b) a description of the scope of the statutory audit carried out together with indications on the auditing standards applied;
c) an opinion on the accounts, which indicates clearly whether these comply with the laws regulating its preparation and whether they represent a true and fair view of the financial and equity position and profit or loss situation of the year;
d) any matters which the auditor submits to the attention of the recipients of the financial statements, without these constituting irregularities;
e) an opinion on the consistency of the management report with the financial statements and its compliance with legal provisions. The opinion shall also include a statement issued on the basis of the knowledge and understanding of the undertaking and related context acquired in the course of the statutory audit, regarding the identification of significant errors in the management report, in which case indications on the nature of such errors shall be provided;
f) a statement on any significant uncertainties relating to facts or circumstances that could raise significant doubts as to the capacity of the audited undertaking to assure business continuity;
g) the indication of the principal place of business of the statutory auditor or statutory auditing company[87].
3. In the event that the auditor expresses an opinion on the financial statements with remarks, an adverse opinion or a disclaimer to the effect that it was impossible to express an opinion, the report shall illustrate analytically the reasons for the decision[88].
3-bis. If the statutory audit is carried out by multiple statutory auditors or multiple statutory auditing companies, these shall reach an agreement on the results of the statutory audit of the accounts and shall submit a joint report and opinion. In the event of disagreement, each statutory auditor or statutory auditing company shall indicate their opinion in a separate paragraph of the audit report, indicating the reasons for the disagreement[89].
4. The report shall be dated and signed by the responsible auditor. Where the statutory audit is carried out by a statutory auditing company, the report shall be signed at least by the responsible auditors for the audit who carry out the audit on behalf of the same company. If the audit engagement is jointly assigned to multiple statutory auditors, the audit report shall be signed by all the responsible auditors[90].
5. The lodgement terms and procedures referred to in Article 2429, third paragraph, and Article 2435, first paragraph, of the Civil Code shall be respected. The lodgement terms and procedures referred to in Article 2429, third paragraph, and Article 2435, first paragraph, of the Civil Code shall be respected, except as provided in Article 154-ter of the Consolidated Law of Financial Intermediation[91].
6. The entities to whom the statutory audit has been assigned have the right to obtain from the directors relevant documents and information for the statutory audit and may carry out verifications, controls and examinations of acts and documents.
7. The report of the statutory auditor or statutory auditing company on the consolidated accounts shall meet the requirements set out in paragraphs 2 to 4. In assessing the consistency of the management report with the accounts, as required under paragraph 2, letter e), the statutory auditor or statutory auditing company shall consider the consolidated accounts and the consolidated management report[92].
Article 15 [93]
(Responsibility)
1. The statutory auditors and auditing companies are jointly and severally liable with each other and with the directors to the company that has assigned the audit, its partners and third parties, for damages deriving from the non-fulfilment of their duties. In internal relations between the joint debtors, they are responsible within the limits of their actual contribution to the damage caused.
2. The responsible auditor and the employees who have worked on the auditing activities are responsible, jointly and severally, and with the statutory auditing company, for damages resulting from non-fulfilment or unlawful acts against the company which assigned the audit and against injured third parties. They are responsible within the limits of their actual contribution to the damage caused.
3. Claims for damages against those responsible in accordance with this Article shall expire within a period of five years from the date of the audit report on the annual or consolidated accounts issued at the end of the audit referred to in the claim for damages.
Chapter V[94]
SPECIAL PROVISIONS RELATING TO ENTITIES OF PUBLIC INTEREST AND ENTITIES SUBJECT TO INTERMEDIATE REGIME
Article 16 [95]
(Entities of public interest)
1. The provisions of this chapter shall apply to entities of public interest and to the statutory auditors and auditing companies responsible for statutory audits of entities of public interest. The following are entities of public interest:
a) Italian companies issuing securities authorised to trade on Italian and European Union regulated markets;
b) banks;
c) the insurance companies referred to in Article 1, paragraph 1, letter u) of the Private Insurance Companies Code;
d) the reinsurance companies referred to in Article 1, paragraph 1, letter cc) of the Private Insurance Companies Code, with registered offices in Italy, and the branch offices in Italy of reinsurance companies outside the European Community referred to in Article 1, paragraph 1, letter cc-ter) of the Private Insurance Companies Code.
2. In public interest entities, the subsidiaries of public-interest entities, companies that control public-interest entities and companies subject to joint control with the latter, statutory audits shall not be carried out by the Board of Statutory Auditors.
Article 17 [96]
(Independence)
1. A statutory audit engagement shall have a duration of nine years for auditing companies and seven years for statutory auditors. It may not be renewed or re-assigned until at least four years have elapsed from the date of termination of the previous engagement.
2. Without prejudice to the provisions of Articles 10 and 10-bis, and in accordance with the principles laid down in EC Directive 2006/43, as modified by EU Directive 2014/56, Consob shall establish by regulation the situations that may compromise the independence of the statutory auditor, the auditing company and the key responsible auditor of a public-interest entity, and the measures to be taken to remove such situations.
3. The statutory auditors, the statutory auditing companies and the entities belonging to their network, their members, their directors, the members of their supervisory bodies and employees of the statutory auditing companies shall comply with the prohibitions referred to in Article 5, paragraph 1, of the European regulation.
4. Appointment as key responsible auditor of the accounts shall not remain with the same person for a period exceeding seven tax years, nor can this person be re-appointed, even on behalf of a different statutory auditing company, until three years have elapsed after the termination of the previous appointment.
5. The statutory auditor or key responsible auditor carrying out the audit on behalf of a statutory auditing company may not hold corporate positions in the direction and supervisory bodies of the entity that appointed the auditor, nor can they take independent or subordinate employment relationships with the entity carrying out important managerial roles until at least two years have elapsed from the conclusion of the appointment as statutory auditor or key responsible auditor for the audit. This prohibition also applies to the employees and members, other than key responsible auditors, of the statutory auditor or statutory auditing company, and to any other natural persons whose services are made available to, or are under the control of, the statutory auditor or statutory auditing company, in the event that such persons are authorized to practice the statutory audit profession for a period of two years from their direct involvement in the statutory audit assignment.
6. Those who have been directors, members of the supervisory bodies, managing directors or managers responsible for preparing corporate accounting documents at a public interest entity cannot carry out statutory audits of the financial statements of the entity or the companies controlled by the same or that control it until at least two years have elapsed from the termination of those appointments or employment relationships.
7. The prohibition in Article 2372, fifth paragraph, of the Civil Code shall also apply to statutory auditors or auditing companies which have been appointed for the audit, and to the responsible auditor and key responsible auditor.
Article 18 [97]
(Transparency report)
1. Without prejudice to the provisions in Article 13 of the European regulation, Consob may request the persons required to publish a transparency report to make amendments and additions to it in the manner and within the time limits established by it.
Article 19 [98]
(Committee for internal auditing and statutory auditing)
1. In public interest entities, the Committee for Internal Auditing and Statutory Auditing shall be responsible for:
a) informing the administration body of the audited entity of the results of the statutory audit and transmit to such body the additional report referred to in Article 11 of the European regulation, together with any remarks;
b) monitoring the financial reporting process and submitting the recommendations or proposals in order to guarantee their integrity;
c) controlling the effectiveness of the systems of internal quality control and enterprise risk management and, where applicable, internal auditing, as regards the financial reporting of the entity subject to the audit, without violating their independence;
d) monitoring the statutory audit of annual accounts and consolidated accounts, also keeping into account any results and conclusions of the quality controls carried out by Consob in accordance with Article 26, paragraph 6, of the European regulation, where available;
e) verifying and monitoringthe independence of the statutory auditors or statutory auditing companies, in accordance with Articles 10, 10-bis, 10-ter, 10-quater and 17 of this decree and Article 6 of the European regulation, in particular with regard to the adequacy of the provision of non-audit services to the entity subject to statutory audit, in compliance with Article 5 of such regulation;
f) being in charge of the procedure for the selection of the statutory auditors or statutory auditing companies and recommending the statutory auditors or statutory auditing companies to be designated in accordance with Article 16 of the European regulation.
2. The Committee for Internal Control and Audit identifies with:
a) the Board of Statutory Auditors;
b) the supervisory board in entities adopting the system of dual corporate governance, provided that it is not assigned the functions referred to in Article 2409-terdecies, first paragraph, letter f-bis) of the Civil Code, or a committee set up within it. In this case, the committee shall be consulted by the supervisory board on the subject of the recommendation referred to in Article 16 paragraph 2, of the European regulation. At least one member of the same committee must be chosen from those entered in the Register;
c) the management control committee in entities adopting the one tier management model.
3. The members of the committee for internal auditing and statutory auditing are overall skilled in the field of operation of the entity subject to audit.
Article 19-bis [99]
(Entities subject to intermediate regime)
1. The following are entities subject to intermediate regime:
a) companies not listed on regulated markets that nonetheless issue financial instruments widely distributed among the public;
b) management companies of regulated markets;
c) companies that manage clearing and guarantee systems;
d) centralised financial instrument management companies;
e) securities trading companies;
f) asset management companies and related Italian-law mutual funds managed by them[100];
f-bis) Italian-law mutual investment funds managed by EU management companies, EU and non-EU AIF management companies[101];
g) investment companies with variable capital and fixed-capital;
h) payment institutions under EC Directive 2009/64;
i) electronic money institutions;
j) the financial intermediaries referred to in Article 107 of the Consolidated Law on Banking.
2. The annual accounts and where applicable the consolidated accounts of the entities subject to intermediate regime are subject to statutory audit in accordance with this decree. In entities subject to intermediate regime, the subsidiaries of entities subject to intermediate regime, companies that control entities subject to intermediate regime and companies subject to joint control with the latter, statutory audits shall be carried out by the Board of Statutory Auditors.
Article 19-ter [102]
(Applicable legislation for entities subject to intermediate regime)
1. Without prejudice to the applicability of the provisions of this decree relating to the audit of entities other than public interest entities, the provisions of:
a) Article 17 of this decree;
b) Article 4, paragraphs 1 and 2, Article 5, paragraphs 1 and 5, Article 6, paragraph 1 and Articles 7, 8, 12 and 17 of the European regulation, shall also apply to the auditors of the entities subject to intermediate regime.
Chapter VI
QUALITY CONTROL
Article 20 [103]
(Quality control)
1. Those entered in the Register who carry out statutory audits, including the members of the board of statutory auditors who practice the statutory audit profession in accordance with Article 2409-bis, paragraph 2, or Article 2477 of the Civil Code, shall be subject to quality reviews.
2. Quality reviews on those entered in the Register who are members or directors of a statutory auditing company or who collaborate on the statutory audit in a statutory auditing company shall be deemed effected through the quality review on the same statutory auditing company. In any case, these individuals shall be directly subject to quality control if they are personally assigned a statutory audit engagement or are members of a board of statutory auditors which performs statutory audits in accordance with Article 2409-bis, paragraph 2, or Article 2477 of the Civil Code.
3. The provisions of this Chapter shall apply to those entered in the Register who carry out statutory audits of the annual and consolidated accounts of entities other than public interest entities.
4. Quality reviews on the statutory auditors and statutory auditing companies who carry out statutory audits of the annual and consolidated accounts of public interest entities are governed by Article 26 of the European regulation.
5. Those entered in the Register who carry out statutory audits of the annual and consolidated accounts of entities other than public interest entities shall be subject to quality reviews on the basis of a risk analysis and, where they have carried out the statutory audit of the annual and consolidated accounts of undertakings that exceeds the limits referred to in Article 1, paragraph, 1, letter s-bis), shall be subject to quality reviews at least every six years. The six-year term shall have effect from the tax year following the year in which the previous audit was completed or from the year in which the statutory auditor or statutory auditing company has received at least an engagement for the statutory audit of the annual or consolidated accounts of undertakings exceeding the limits referred to in Article 1, paragraph 1, letter s-bis).
6. Quality reviews shall be carried out by individuals possessing adequate training and professional experience with regard to auditing and financial and budget reporting, as well as specific training on quality reviews, as referred to in Article 5-bis.
7. The individuals referred to in paragraph 6 shall be statutory auditors duly entered in the Register and who:
a) have carried out for at least 5 consecutive years statutory audits in their capacity as responsible auditors;
b) have been for at least 5 consecutive years employees or collaborators of statutory auditing companies entered in the Register, participating in statutory audit engagements with managerial and supervisory functions;
c) have been for at least 5 consecutive years employees of public administrations or entities that carry our supervisory activities on statutory auditing.
8. Those responsible for quality reviews shall respect the confidentiality of the information that comes to their notice in the course of the performance of their functions.
9. Statutory auditors who have statutory audit engagements and the individuals who have entered into direct or indirect contracts for collaboration, consulting, employment or other appointments, including the holding of company offices, with a statutory auditor or statutory auditing companies shall not be in charge of quality reviews.
10. A natural person shall not participate as a quality reviewer of a statutory auditor or statutory auditing company before three years have elapsed following the cessation of the contract as a member or employee or any other type of association with that statutory auditor or statutory auditing company.
11. A natural person shall not participate as a quality reviewer of a statutory auditor or statutory auditing company if such person is the spouse or cohabitee, relative or in-law within the fourth degree of the statutory auditor subject to the quality review, or of statutory auditors that are partners, directors or collaborators of the statutory auditing company subject to the quality review, or if such person has established with them or with the statutory auditing company subject to the review business or financial relations that could compromise their independence.
12. The selection of individuals to be assigned to each quality review shall take place according to an objective procedure designed to exclude any conflict of interest between the persons in charge of the review and the statutory auditor or statutory auditing company subject to review.
13. Based on an adequate analysis of selected audit papers, quality reviews shall include an assessment of compliance with applicable auditing standards and independence requirements, the quantity and quality of resources used, the audit fees, and the internal quality control system in the statutory auditing company.
14. Quality reviews shall be appropriate and proportionate to the extent and complexity of the activity carried out by the statutory auditor and statutory auditing company subject to the review.
15. The individuals subject to quality review shall collaborate with the entity in charge of the review. In particular, those subject to the quality review shall allow the persons in charge of the review to have access to their premises, and shall provide information and the requested documents and working papers.
16. The persons in charge of the quality review shall prepare a report containing a description of the results of the review and any recommendations for specific action to be taken to the statutory auditor or statutory auditing company indicating the period within which such action must be undertaken.
17. The statutory auditor or statutory auditing company shall carry out the actions indicated in the report in accordance with paragraph 16 within the period set out in it. In case of failure, incomplete or late implementation of these actions, the Ministry of Economy and Finance and Consob under the scope of their respective competencies, may apply the sanctions provided for in Articles 24 and 26, paragraphs 1, 1-ter and 1-quater.
Chapter VII
SUPERVISION[104]
Article 21 [105]
(Ministry of the Economy and Finance duties and powers)
1. The Ministry of Economy and Finance shall carry out quality reviews on statutory auditors and auditing companies that have no statutory audit engagements on public interest entities or entities subject to intermediate regime, as well as regarding:
a) the qualification process, including the conduct of the traineeship, and the entry in the Register of statutory auditors and auditing companies;
b) keeping of the Register and the traineeship Register;
c) the adoption of principles of professional ethics and internal quality control in auditing companies, and auditing standards;
d) continuing education;
e) verification of compliance with the provisions of this Legislative Decree by the statutory auditors and auditing companies which do not have statutory audit engagements with public interest entities or entities subject to intermediate regime;
f) the adoption of sanctions in case of violation of the provisions of this decree, implementation provisions and the principles referred to in Articles 9, 10 and 11.
2. The Ministry of Economy and Finance may, on a contractual basis, avail itself of public or private entities for the performance of duties, including investigations and verifications, regarding the qualification of statutory auditors and auditing companies, and keeping of the Register and the traineeship register.
3. The entities referred to in paragraph 2, and the delegated entities referred to in Article 5, paragraph 13, shall perform their duties in accordance with the provisions of this Legislative Decree, its implementation regulations, and a convention stipulated with the Ministry of Economy and Finance.
4. The entities referred to in paragraph 2, and the delegated entities referred to in Article 5, paragraph 13, shall have in place adequate procedures to prevent, detect and manage conflicts of interest or other circumstances which, in the performance of assigned or delegated tasks, may compromise their independence from those entered in the Register and the traineeship registers.
5. The Ministry of Economy and Finance shall supervise the proper and independent performance of assigned or delegated duties by the entities referred to in paragraph 2, and the delegated entities referred to in Article 5, paragraph 13, and can make recommendations to them and withdraw at any time without charges from the conventions referred to in paragraph 3, arrogating the delegated tasks.
6. In the exercise of supervision referred to in paragraphs 1 and 5, the Ministry of Economy and Finance may:
a) require the communication, including periodically, of data and information and the transmission of records and documents, in the manner and within the time limits set out by it;
b) perform inspections and obtain information and clarification, including by hearing, from the statutory auditors and from the partners, directors, members of the supervisory bodies and managers of the statutory auditing companies;
c) request information, data or documents in any form whatsoever, setting the deadline for its communication, and conduct personal hearings in relation to anyone who may be in possession of the facts;
d) obtain directly from the Companies Register, including via telecommunication technologies in accordance with Legislative Decree no. 82 of 7 March 2005, the statutory audit engagements assigned in compliance with this decree and all relevant information for complying with the quality control obligations.
7. The performance of the functions conferred on the Ministry of Economy and Finance by this decree shall be financed by the contributions of those entered in the Register. Those entered in the Register are required to pay contributions by 31 January of each year. In the event of non-payment or delayed payment of contributions, the Ministry of Economy and Finance may adopt the measures referred to in Article 24-ter.
8. The Ministry of Economy and Finance shall establish by decree the amount of the contributions, commensurate with the direct and indirect supervision costs. For functions whose cost varies according to the complexity of the activities carried out by those entered in the Register, contributions are proportional to the amount of revenues and fees taken by the participants and in a manner that ensures the complete coverage of the service costs[106].
9. By April 30 of each year, the Ministry of Economy and Finance shall publish a report of its activities on its website. The report also includes the overall results of the quality reviews.
Article 21-bis [107]
(Quality reviews carried out by the Ministry of Economy and Finance)
1. Within the context of the quality reviews referred to in Article 21, paragraph 1, the Ministry of Economy and Finance shall perform, in particular, the following duties:
a) approval and modification of control methods and programs;
b) approval or designation of those responsible for quality control;
c) issuance of recommendations and instructions in any form whatsoever to the entity to which the duties have been delegated.
2. For the purposes of the quality reviews referred to in Article 21, paragraph 1, and without prejudice to the powers referred to in paragraph 1, the Ministry of Economy and Finance may delegate the performance of quality control duties to public and private entities, proposing the underwriting of proper conventions setting out the delegated duties and the conditions at which such duties are to be performed. The public and private entities shall perform the duties assigned to them in compliance with the provisions of this legislative decree, implementation provisions and within the limits and in the manner indicated in the convention. In particular, the entities shall avail themselves of natural persons who meet the requirements specified in Article 20, paragraphs 6 and 7.
3. The entities referred to in paragraph 2 shall be selected according to the procedures provided for by law and shall meet the following conditions:
a) the owners, members or associates of said entities and the members of their administration, management and control bodies shall meet the honourability requirements referred to in Article 2, paragraph 2, letter a), and shall have no direct or indirect relationships of partnership, consulting, employment or other professional relationship, including the holding of corporate positions, or family, financial or business relations with a statutory auditor or statutory auditing company;
b) at least 75 per cent of the members of administration, management and control bodies shall be statutory auditors entered in the Register;
c) the majority of the members of administration, management and control bodies shall have at least five years of continuative experience in the performance of statutory audits and at least two years in the performance of quality reviews on statutory auditors and statutory auding companies entered in the Register.
4. The entities referred to in paragraph 2 shall have in place procedures to prevent, detect and manage conflicts of interest or other circumstances which, in the performance of assigned tasks, may compromise their independence in relation to those subject to the review.
5. The convention referred to in paragraph 2, stipulated by the Ministry of Economy and Finance, shall specify:
a) the methods and time limits for communication by the Ministry of data relating to the entities to be reviewed, indicating the deadline for completion of the related review;
b) the criteria for programming quality reviews;
c) the criteria and methodologies for performing the reviews, the criteria for identifying any corrective actions to be recommended and for setting the related deadline for completion and the methods to prepare the report referred to in Article 20, paragraph 16;
d) the criteria for verification of the requirements of independence and professionalism of the entities responsible for the review;
e) the criteria for the assignment of individual quality reviews to the entities responsible for the reviews;
f) the criteria for verification of compliance, by the entity subject to review, with any recommendations received in accordance with Article 20, paragraph 16;
g) the methods of communication to the Ministry of Economy and Finance of review findings and of failure, incomplete or late compliance, by the entities subject to review, with the obligations referred to in Article 20, paragraph 17.
6. For the purposes of the implementation of the quality reviews referred to in Article 21, paragraph 1, and without prejudice to the powers referred to at the preceding paragraph, the Ministry of Economy and Finance may assign by a proper provision quality reviews to natural persons entered into a proper register kept by the Ministry, having verified that independence requirements are met and that no conflict of interests, whether potential or not, is in place.
7. The Ministry of Economy and Finance shall establish by decree the criteria for registering the interested parties in the register referred to at the preceding paragraph, in accordance with the requirements referred to in Article 20, paragraphs 6 and 7, and the fees payable to the quality reviewers determined on the basis of the complexity and duration of the assignments, and of the number of entities subject to review.
8. The entities that are assigned quality reviews in accordance with paragraph 6 shall perform the assigned duties in compliance with the provisions of this legislative decree, implementation provisions and within the limits and according to the modalities indicated in the provision assigning the quality reviews.
9. The Ministry of Economy and Finance shall supervise the proper and independent performance of the assigned duties by the entities referred to in paragraphs 2 and 6, can make recommendations to them and withdraw at any time without charges from the conventions stipulated in accordance with paragraph 3, arrogating the delegated tasks.
10. Where duties in relation to the performance of quality reviews are delegated in accordance with paragraph 2, the Ministry of Economy and Finance can also:
a) participate, through own personnel, in the reviews performed by the delegated entities and have access to any relevant document;
b) arrogate individual assignments and intervene taking over the performance of the same with own personnel or availing itself of professionals entered in the register referred to in paragraph 6;
c) require the communication, including periodically, of data and information and the transmission of records and documents, produced or obtained by the entities delegated to carry out the reviews, in the manner and within the time limits set out by it;
d) perform inspections at the delegated entities;
e) obtain information, clarification, data and documents from the owners, members or associates of delegated entities in accordance with paragraph 2, from the members of their administration, management and control bodies, and from the persons appointed by them for the reviews and the entities subject to the reviews, setting out the time limit for the related communication, as well as see to personal hearing of the same persons.
11. Where quality review engagements are assigned in accordance with paragraph 6, the Ministry of Economy and Finance can use towards the entities responsible for the quality reviews the powers referred to in paragraph 10, letters a), c), d) and e).
12. The cost of the performance of quality reviews implementing the provision of this article shall be financed by the contributions of those entered in the Register in accordance with Article 21, paragraph 7, without any new or increased charges to be borne by the State budget.
Article 22 [108]
(Consob duties and powers)
1. Consob shall supervise the organization and activity of the statutory auditors and auditing companies who have statutory audit engagements with public interest entities or entities subject to intermediate regime in order to verify their correct performance of the statutory audit, in compliance with the provisions of this decree, the implementation provisions and the European regulation. Consob shall also perform the duties provided for by Article 20 of the European regulation. In carrying out this activity, Consob shall carry out the quality assurance reviews referred to in Article 20 of this decree and Article 26 of the European regulation, according to their respective scope of application.
2. In the exercise of supervision, Consob may:
a) require communication, including periodically, of data and information and the transmission of records and documents, in the manner and within the time limits set out by it;
b) perform inspections and request exhibition of documents and the performance of acts deemed necessary;
c) request information, data or documents in any form whatsoever, setting the deadline for its communication, and conduct personal hearings in relation to anyone who may be in possession of the facts. In case of inspections and hearings as referred to in letters b) and c), proper minutes shall be drawn up with the data and information acquired and the statements made by those concerned, who shall be invited to sign the minutes and be entitled to receive a copy.
3. Without prejudice to the provisions of Article 23, paragraph 3, second clause, of the European regulation, the powers referred to in paragraph 2, letters a) and b) can also be used in relation to:
(a) statutory auditors and auditing companies carrying out the statutory audit of entities subject to intermediate regime;
(b) persons involved in the activities of the statutory auditors and auditing companies carrying out the statutory audit of entities subject to intermediate regime;
(c) entities subject to intermediate regime, their affiliates and related third parties;
(d) third parties to whom the statutory auditors and auditing companies carrying out the statutory audit of entities subject to intermediate regime have outsourced certain functions or activities;
(e) persons otherwise related or connected to statutory auditors and auditing companies carrying out the statutory audit of entities subject to intermediate regime.
4. In the exercise of supervision, Consob may use towards the internal control and audit committee of public interest entities the powers referred to in paragraph 2.
5. The overall quality review results are shown by Consob in the report referred to in Article 1, the thirteenth paragraph, of Decree-Law no. 95 of 8 April 1974 converted with modifications, by Law no. 216 of 7 June 1974 and published on its website.
6. Consob may govern by own regulation the publication of the results and conclusions of the quality reviews referred to in Article 26 of the European regulation in relation to individual inspections, determining the related contents and time limits.
Article 23 [109]
(Cooperation between authorities and professional secrecy)
1. The Ministry of Economy and Finance and Consob shall work together, including through exchange of information, in order to facilitate their respective functions, identifying forms of coordination through memoranda of understanding or the establishment of steering committees. These authorities cannot make recourse to professional secrecy in the exercise of these functions solely.
1-bis. For the purposes of recognition of public interest entities and entities subject to intermediate regime, the Authorities supervising the entities subject to audit shall cooperate with the Ministry of Economy and Finance and transmit at least once a year a list of the entities respectively supervised.
Chapter VIII[110]
ADMINISTRATIVE AND JUDICIAL SANCTIONS
Article 24 [111]
(Provisions of the Ministry of the Economy and Finance)
1. The Ministry of Economy and Finance, when it finds irregularities in carrying out the statutory audit, may apply the following sanctions:
a) a warning, ordering the natural or legal person responsible for the violation to put an end to the conduct and to refrain from reiteration;
b) a declaration, stating that the audit report does not meet the requirements referred to in Article 14;
c) a reproach, consisting of a public reprimand clearly naming the responsible person and the nature of the violation;
d) a pecuniary administrative sanction of from one thousand to one hundred and fifty thousand euro;
e) suspension from the Register, for a period not exceeding three years, of the person responsible for the irregularities related to the statutory audit engagement;
f) revocation of one or more of the statutory audit engagements;
g) banning the statutory auditor or statutory auditing company from accepting new statutory audits of the accounts for a period not exceeding three years;
h) removing the statutory auditor, auditing company or the responsible auditor from the Register.
2. The Ministry of Economy and Finance may apply the sanctions referred to in paragraph 1 in the following cases:
a) failure to comply with the training obligation;
b) failure to comply with the disclosure obligation of the information referred to in Article 7, and of any data requested for the correct identification of the statutory auditor or auditing company, the audits carried out by them and the related revenues and fees. In the cases referred to in this paragraph, the pecuniary administrative sanction shall be in the amount of fifty to two thousand and five hundred euro.
3. The Ministry of Economy and Finance shall rule the removal from the Register of statutory auditors, auditing companies or responsible auditors who do not comply with the provisions indicated in paragraphs 1 and 2.
4. Removed auditors under this article may upon request be re-entered in the register on conditions that at least six years have elapsed from the removal ruling.
5. The Ministry of Economy and Finance shall publish on the statutory audit website each administrative sanction imposed for the violation of the provisions of this legislative decree, including information on the type and nature of the violations and the identity of the legal or natural persons on whom the sanctions have been imposed.
6. If opposition is brought against the sanctions, information on the status and outcome of such opposition shall also be published on the statutory audit website.
7. The Ministry of Economy and Finance may publish the sanctions in an anonymous form in the following circumstances:
a) when the publication of the personal data of a natural person is disproportionate to the type of violation;
b) when the publication threatens the stability of the financial markets or ongoing criminal investigations;
c) when the publication causes disproportionate damage to the institutions or persons involved.
8. The sanctions imposed in accordance with this article shall be published on the official website for at least five years, all opposition means having been used or the indicated time limits having expired. The Ministry of Economy and Finance, in view of the nature of the violation and the interests involved, may establish further methods of publicising its decision.
9. The Ministry of Economy and Finance, when it finds failure or inadequate adoption of an internal reporting system, may, having regard to their severity:
a) apply a pecuniary administrative sanction of from ten thousand to five hundred thousand euro to the statutory auditing company;
b) order the legal person responsible for the violation to put an end to the conduct and to abstain from reiteration.
Article 24-bis [112]
(Precautionary suspension)
1. Having regard to the severity of the case, the Ministry of Economy and Finance may order the precautionary suspension of the auditor for a period not exceeding five years.
2. Precautionary suspension from the Register shall occur at any rate when the judicial authority imposes personal precautionary measures or validates arrest or detention, or issues sentences, including final judgments, that imply custodial measures for preventive purposes or probation.
3. Where suspension is ordered in connection with criminal proceedings ending with exoneration or final acquittal, if there is no case to answer or the crime never actually took place, the suspension shall be revoked as from the date of the delivery of the judgment.
Article 24-ter [113]
(Suspension in the case of non-payment)
1. In the case of non-payment of the annual contributions to the Register in accordance with Article 21, paragraph 7, after three months from the due date, the Ministry of Economy and Finance shall allow another term of no more than thirty days to make the payment. After this grace period elapses without avail, the auditor or auditing company shall be suspended from the Register.
2. The suspension measure, including in relation to groups of names, shall be notified to the certified electronic email accounts indicated in the Register by the persons concerned or in any other manner allowed by the law. If due to a high number of recipients individual notifications are particularly onerous, the suspension measure can be published in whole or in excerpts on the official website containing the statutory audit portal or in the Official Gazette of the Italian Republic.
3. The Ministry of Economy and Finance shall order the revocation of the suspension measure if the person concerned proves to have paid in full the owed contributions, plus the legal interests and any cost incurred for the related collection.
4. Having passed another six months from the date of the suspension measure without the person concerned paying the omitted contributions, the Ministry of Economy and Finance, upon notice, shall proceed to the removal from the Register of the auditors in the manner referred to in paragraph 2.
Article 25 [114]
(Disciplinary procedure)
1. The administrative sanctions provided for in this chapter shall be imposed by the Ministry of Economy and Finance with a reasoned order, after charging the interested parties within one hundred and eighty days or within three hundred sixty days from the ascertainment where the interested party resides or has its head office abroad, and evaluating the submissions made by them within thirty days.
2. The disciplinary proceedings are governed by the principles of cross-examination, knowledge of the investigative deeds, reports and a distinction between investigative functions and decision-making functions.
3. The type and degree of the sanction or administrative measure to be adopted shall be defined, in particular, in consideration of all the relevant circumstances, including, if applicable:
a) the severity and the duration of the violation;
b) the level of responsibility of the person who committed the violation;
c) the financial solidity of the person responsible;
d) the amount of the profits gained or losses averted by the responsible person, if they can be determined;
e) the level of cooperation of the person responsible with the supervisory authority;
f) previous violations of the natural or legal responsible person[115].
3-bis. The Ministry of Economy and Finance shall establish by own regulation the phases and modalities of the disciplinary procedure, in compliance, among other things, with the guarantees of those entered in the Register[116].
3-ter. The disciplinary procedure shall expire within six years from the fact that could give rise to the initiation of the disciplinary procedure.
3-quater. In the event that the measures referred to in Article 24 consist of a pecuniary administrative sanction, such sanction shall be reduced by half in the case of payment within thirty days from receipt.
4. Opposition may be brought against the measure applying the sanctions as per this chapter before the Court of Appeal of the place in which the auditing firm or auditor perpetrating the violation is located or, if these criteria do not apply, the place in which the offence was committed. The appeal must be notified to the Ministry of Economy and Finance within thirty days of communication and lodged with the clerk of the Court of Appeal within thirty days of notification.
5. The appeal shall not stay enforcement of the decision. The Court of Appeal, if there are serious reasons, may order suspension by reasoned decree.
6. The Court of Appeal, at the request of the parties, may set deadlines for the submission of briefs and documents, and consent to personal hearings of the parties.
7. The Court of Appeal decides on the appeal in the council chamber, after hearing the public prosecutor, by reasoned decree.
8. Copy of the decision shall be sent by the clerk of the Court of Appeal to the Ministry of Economy and Finance for the purposes of publication on the website referred to in Article 7, paragraph 5.
Article 26 [117]
(Consob rulings)
1. When it finds the violation of the provisions referred to in Articles 9, 9-bis, 10, 10-bis, 10-ter, 10-quater, 10-quinquies, 11, 14 and 17 of this decree, and related implementation provisions, and in Articles 4, 5, 6, 8, 10, 11, 15, 17, 18 and 26, paragraph 8, of the European regulation, Consob may:
a) applya pecuniary administrative sanction of from ten thousand to five hundred thousand euro to the statutory auditor, statutory auditing company or responsible auditor; for the violation of the prohibitions referred to in Articles 17 of this decree and Articles 4 and 5 of the European regulation, a pecuniary administrative sanction of from one hundred thousand euro to five hundred thousand euro is applied;
b) revoke one or more statutory auditing engagements with public interest entities or entities subject to intermediate regime;
c) ban the statutory auditor or statutory auditing company from accepting new appointments for the statutory audit of public interest entities or entities subject to intermediate regime for a period not exceeding three years;
d) suspend the statutory auditor, statutory auditing company or auditor responsible for the irregularities found, from the Register for a period not exceeding three years;
e) remove from the Register the statutory auditor, statutory auditing company or auditor responsible for the irregularities found.
1-bis. Consob communicates to the Ministry of Economy and Finance the rulings referred to in paragraph 1, letters d) and e) for their entry in the Register.
1-ter. Where the violations referred to in paragraph 1 are characterized by low offensiveness or dangerousness, alternatively to the sanctions indicated in the same paragraph, Consob may:
a) publish a declaration naming the person responsible for the violation and the nature of the same; or
b) enjoin elimination of the infringements found, possibly indicating any measure to be adopted and the term to comply, and abstention from reiteration.
1-quater. In case of non-compliance within the term indicated with the order referred to in paragraph 1-ter, Consob shall apply the originally imposed pecuniary administrative sanction increased by up to one third.
1-quinquies. Where the irregularities found imply the production of an audit report that does not meet the requirements provided for by Article 14 of this decree or, where applicable, by Article 10 of the European regulation, Consob, in the ruling imposing the sanction referred to in paragraph1, shall state that the audit report does not meet the requirements provided for by Article 14 of this decree or, where applicable, Article 10 of the European regulation.
1-sexies. When it ascertains that Article 18 of this decree and Articles 7, 12, 13 and 14 of the European regulation have been violated, Consob may impose on the statutory auditor or auditing company the sanctions referred to in paragraph 1, letter a), and paragraphs 1-ter and 1-quater.
1-septies. Without prejudice to the sanctions referred to in paragraph 1, in regard to the cases of non-compliance with the provisions of Articles 10-ter and 17 of this decree, and related implementation provisions, and Articles 4, 5, 8 and 26, paragraph 8, of the European regulation, Consob shall apply a pecuniary administrative sanction of from ten thousand euro to five hundred thousand euro to the members of the administration and management bodies of the statutory auditing companies where the non-compliance is a consequence of the violation of own duties or the body concerned, and one or both of the following conditions are met:
a) The conduct in question has significantly affected the overall organization or the threats to the independence and quality of the statutory audit of the statutory auditing company;
b) The conduct has contributed to determine the non-compliance by the company with the provisions of Article 10-ter and 17 of this decree and related implementation procedures, and Article 4, 5, 8 and 26, paragraph 8, of the European regulation.
1-octies. In the ruling imposing the sanction, in view of the severity of the ascertained violation, Consob may also apply the supplementary administrative sanction of temporary interdiction, for a period not exceeding three years, from the performance of functions with statutory auditing companies.
1-novies. When it ascertains non-compliance with the obligations referred to in Article 14, paragraph 6, by the administration bodies of a public interest entity or entity subject to intermediate regime, Consob shall apply to the members of such bodies responsible for the violations a pecuniary administrative sanction of from ten thousand euro to five hundred thousand euro. When the violations are particularly severe, Consob may temporarily interdict for a period not exceeding three years the members of the administration and management bodies responsible for the violation from the performance of functions with public interest entities or entities subject to intermediate regime.
1-decies. When it ascertains failure or inadequate adoption of the internal reporting system in accordance with Article 26-bis, Consob may apply to the statutory auditing company the sanction referred to in paragraph 1, letter a). In the cases of low offensiveness or dangerousness, paragraphs 1-ter and 1-quater shall apply.
2. When Consob ascertains that Articles 10 and 17 of this decree, and related implementation provisions, and Articles 4 and 5 of the European regulation, are violated by persons other than those referred to in paragraphs 1 and 1-sexies, a pecuniary administrative sanction of from ten thousand euro to five hundred thousand shall apply.
2-bis. When the violation of the provisions referred to in Articles 10 and 17 of this decree, and related implementation provisions, and in Articles 4 and 5 of the European regulation, is attributable to the partners, directors or employees of the auditing company entered in the Register, Consob may adopt against such persons the measures provided in paragraph 1, letters d) and e).
3. Consob shall order the removal from the Register of statutory auditors, statutory auditing companies or responsible auditors who do not comply with the provisions indicated in paragraph 1, letters c) and d), and promptly communicate the ruling to the Ministry of Economy and Finance, for entry in the Register.
4. Article 195 of the Consolidated Law of Financial Intermediation shall apply to the disciplinary proceedings provided for in this Article.
4-bis. Articles 194-bis and 195-bis of the Consolidated Law of Financial Intermediation shall apply to the rulings provided for in this Article.
Article 26-bis [118]
(Internal breach reporting systems)
1. The statutory auditing company shall adopt specific procedures for the internal reporting by its personnel of acts or facts that could constitute potential or actual violations of the legislation governing the statutory audit of accounts.
2. The procedures referred to in paragraph 1 shall be suitable to guarantee:
a) Confidentiality of the personal data of the reporting person and presumably responsible person for the violation, without prejudice to the rules governing the investigations or proceedings by the judicial authority in relation to the facts subject matter of the reporting; the identity of the reporting person shall not be subject to the application of Article 7, paragraph 2, of Legislative Decree no. 196 of 30 June 2003, and shall not be disclosed during all the procedural phases, unless in case of his/her consent or a specific request by the judicial authority;
b) Adequate protection of the reporting person against retaliation, discrimination or in any case unfair behaviour in consequence of the reporting;
c) A specific, independent and autonomous reporting route;
d) The right of the presumably responsible person for the violation to be heard before any decision is made regarding him/her, without prejudice to any further defence right. Article 24, paragraph 1, letter a) of Legislative Decree no. 196 of 30 June 2003 shall apply.
3. The reporting of a case within the context of the procedure referred to in paragraph 1 does not constitute per se a violation of the obligations inherent in the work relationship, except in the case of reporting made in bad faith and containing false information.
4. The Ministry of Economy and Finance shall issue the implementation provisions of this article, having consulted Consob.
Article 26-ter [119]
(Procedure for reporting to the Ministry of Economy and Finance and Consob)
1. The Ministry of Economy and Finance and Consob shall receive, each according to their respective competencies, reported cases of violation of the statutory audit legislation and, where relevant, shall use them in the performance of their supervisory functions.
2. The Ministry of Economy and Finance and Consob shall establish conditions, limits and procedures for the receipt of reported cases, in compliance with the principles and requirements indicated in Article 26-bis, paragraph 2.
3. In the event of access pursuant to Articles 22 et seq., of Law no. 241 of 7 August 1990, the exhibition of documents relating to the reporting referred to in paragraph 1 shall be carried out in such manner as to protect in any case the confidentiality of the reporting person and reported person.
Article 27 [120]
(False reports or communications from those responsible for the statutory audit)
1. Responsible auditors who, in order to obtain for themselves or others an unjust profit, in reports or other communications, in full knowledge of the falsity and with intent to deceive the recipients of the communications, make false declarations or conceal information concerning the economic, equity or financial position of the audited company, entity or person, in such a way as to mislead the recipients of the communications on the above situation, shall be punishable, if their conduct has not caused a loss of equity, with imprisonment of up to one year.
2. If the conduct referred to in paragraph 1 has caused a loss of equity to the recipients of the communications, the penalty shall be imprisonment from one to four years.
3. If the offence referred to in paragraph 1 is committed by the responsible statutory auditor of a public interest entity or entity subject to intermediate regime, the penalty shall be imprisonment from one to five years.
4. If the offence referred to in paragraph 1 is committed by the responsible statutory auditor of a public interest entity or entity subject to intermediate regime for money or other benefit given or promised, or in concert with the directors, general managers or auditors of the company subject to audit, the penalty referred to in paragraph 3 shall be increased by up to half.
5. The penalty referred to in paragraphs 3 and 4 shall apply to those who give or promise the benefit and the general managers and members of the administrative or supervisory bodies of the public interest entity, or entity subject to intermediate regime, subject to the statutory audit who have contributed to commit the offence.
Article 28 [121]
(Corruption of auditors)
1. Responsible auditors who, following the giving or the promise of benefit, for themselves or third parties, perform or omit acts in violation of the obligations inherent in their office, causing harm to the company, shall be punishable with imprisonment of up to three years. The same penalty applies to anyone who gives or promises benefit.
2. The responsible auditor and the members of the board, partners and employees of the statutory auditing company, who, in carrying out the statutory audit of public interest entities, entities subject to intermediate regime or companies controlled by them, except in the cases provided for in Article 30, for money or other benefit given or promised, perform or omit acts in breach of the obligations inherent in their office, shall be punishable with imprisonment from one to five years. The same penalty applies to anyone who gives or promises benefit.
3. These offences are officially prosecutable.
Article 29 [122]
(Impeding audits)
1. Members of the board who, by concealing documents or by other means, prevent or otherwise impede the carrying out of the statutory audit shall be punishable by a penalty of up to seventy-five thousand euro[123].
2. If the conduct referred to in paragraph 1 has caused damage to partners or third parties, the offence is subject to a penalty of up to seventy-five thousand euro and eighteen months imprisonment.
3. In the case of a statutory audit of public interest entities or entities subject to intermediate regime, the penalties referred to in paragraphs 1 and 2 shall be doubled.
4. These offences are officially prosecutable.
Article 30 [124]
(Illegal remuneration)
1. The responsible auditor and the members of the board, partners and employees of the statutory auditing company, who receive, directly or indirectly, by the company subject to statutory audit, compensation in money or otherwise, other than that lawfully agreed upon, shall be punishable with imprisonment from one to three years and a fine of one thousand to one hundred thousand euro.
2. The same punishment applies to members of the board, managers and liquidators of companies subject to statutory audit who have paid sums not owed.
Article 31 [125]
(Illicit financial relationships with the company subject to auditing)
1. The directors and partners responsible for the statutory audit and employees of auditing companies which borrow in any form, either directly or through a third party, from the company subject to audit or a company that controls, or is controlled by it, or accept loans from such companies as guarantees for its own liabilities, shall be punishable with imprisonment from one to three years and a fine of 206 to 2,065 euro.
Article 32 [126]
(Common provisions)
1. If the offences referred to in Articles 27, paragraphs 3, 4 and 5, 28, paragraph 2, 30 and 31 lead to particularly serious damage to the statutory auditing company or the company subject to audit the penalty is increased by up to half.
2. Reports of offences subject to disciplinary evaluation shall be received anyway. The judicial authority shall promptly communicate to the Ministry of Economy and Finance if with regard to the persons entered in the register of statutory auditors:
a) criminal proceedings are in place;
b) precautionary or security measures are ordered;
c) sentences defining the degree of judgment are delivered.
3. Criminal sentences pronounced against the responsible auditors, the members of the board, partners and employees of the statutory auditing company for crimes committed in carrying out statutory audits shall also be communicated to the Ministry of Economy and Finance and Consob by the clerk of the court which issued the judgement.
Chapter IX
INTERNATIONAL ASPECTS
Article 33
(International cooperation)
1. Consob is the competent authority to provide international cooperation in the matters governed by this decree, in the manner and under the conditions laid down in this chapter and Article 4 of the Consolidated Law on Financial Intermediation.
2. Consob is the point of contact for the receipt of requests for information from the competent authorities of other Member States of the European Union and Third countries in matters regarding statutory audits. Investigations carried out in the territory of the Republic on behalf of foreign authorities are subject to supervision by Consob or the Ministry of Economy and Finance, within their respective powers.
3. In the event that Consob or the Ministry of Economy and Finance should conclude that activities are under way or have been carried out which are contrary to provisions relating to statutory audits in the territory of another Member State, it shall notify the competent authority of the other Member State, of its conclusions and provide all the useful information.
4. In the event that a competent authority of another Member State shall notify Consob that activities are under way or have been carried out which are contrary to provisions relating to statutory audits in Italian territory, the Ministry of Economy and Finance and Consob, within their respective powers, shall take all necessary measures and notify the competent authority of the other Member State of the outcome and, where possible, any significant interim developments arising from its actions.
5. In the event that a statutory auditor or statutory auditing company subject to measures of suspension or cancellation in accordance with Articles 24 and 26 and, as reported in the Register, is found to be qualified and registered with other States belonging to the European Union, Consob shall notify the competent authorities of such States of the adoption of any measures and the reasons underlying them.
Article 34
(Inclusion of Third country auditors in the Register)
1. The Ministry of Economy and Finance, after consulting Consob, shall enter into the Register all Third country auditors and auditing entities that provide audit reports on the annual or consolidated accounts of a company incorporated in a Third country, whose securities are admitted to trading on an Italian regulated market, except when the third country company is an issuer exclusively of debt securities admitted to trading on a regulated market, the denomination per unit of which is:
1) before 31 December 2010, at least fifty thousand euro at the date of issue or, in the case of debt securities denominated in another currency, equivalent, at the date of issue, to at least fifty thousand euro;
2) after 31 December 2010, at least one hundred thousand euro at the date of issue or, in the case of debt securities denominated in another currency, equivalent, at the date of issue, to at least one hundred thousand euro[127].
2. Entry into the Register shall be subject to the following conditions being met:
a) the auditor of the Third country shall comply with requirements equivalent to those laid down in Chapter II, with the exception of Article 5;
b) the majority of the members of the administrative or management body of an auditing entity of the Third country complies with requirements equivalent to those laid down in Chapter II, with the exception of Article 5;
c) the Third country auditors responsible for auditing the accounts on behalf of the auditing entity of the Third country meet requirements equivalent to those laid down in Chapter II, with the exception of Article 5;
d) the audit of the annual or consolidated accounts is carried out in accordance with the auditing standards referred to in Article 11, paragraph 1, and with the obligations of independence and objectivity of Article 10, or with equivalent standards and requirements;
e) the statutory auditor or auditing entity of the Third country shall publish on its website an annual transparency report containing the information specified in Article 18 or complies with equivalent disclosure requirements[128].
3. The equivalence referred to in paragraph 2, letter d) is evaluated in accordance with Article 45, paragraph 6 of EC Directive 2006/43[129].
4. The provisions of Article 7 shall apply.
5. The auditors and auditing entities from the Third countries listed in the Register are responsible for the information supplied for the purposes of registration and must promptly notify the entity in charge of keeping the Register of any change in this information.
6. The audit reports regarding annual or consolidated accounts of the entities referred to in paragraph 1, issued by Third country auditors and audit entities not entered on the Register of Statutory Auditors shall have no legal effect in Italy[130].
7. The Ministry of Economy and Finance, after consulting Consob, shall regulate the implementation of this Article specifying in particular the conditions for entry into the Register of statutory auditors, having regard to the criteria indicated in the European legislation, the content of the application for entry and the cases of removal from the Register[131].
Article 35 [132]
(Supervision of Third country auditors and auditing entities)
1. Auditors and auditing entities from a Third country listed in the Register are subject to Consob’s systems of public oversight, quality control and investigations and penalties covered by this decree.
2. Auditors and auditing entities from a Third country listed in the Register may, on a reciprocal basis, be exempted from the quality control reviews covered by this decree, wherever they have been subject to quality control reviews by another Member State or a Third country considered equivalent in accordance with Article 46 of EC Directive 2006/43 during the three previous years.
3. The Ministry of Economy and Finance, after consulting Consob, shall issue a regulation for the implementation of paragraph 2.
Article 36 [133]
(Exceptions in the event of equivalence)
1. Consob may choose not to apply, in whole or in part, the provisions of Articles 34 and 35 with regard to the auditors or audit entities of Third countries subject, in the Third country in which they are located, to systems of public oversight, quality control, investigations and penalties that meet requirements equivalent to those provided for in Article 46, paragraph 1, of EC Directive 2006/43.
2. The exemptions or waivers referred to in paragraph 1 shall be established on the basis of reciprocity and provided that agreements have been made for cooperation, including through exchange of information, documents and working papers, between the Italian authorities and the system of public oversight, quality control, inquiry and penalty of the Third country.
3. The existence of equivalence is assessed in accordance with Article 46 of EC Directive 2006/43.
4. Consob shall issue a regulation for the implementation of the present Article.
5. Consob shall notify the European Commission of:
a) the main elements of the cooperation arrangements referred to in paragraph 2;
b) the equivalence assessments carried out in accordance with paragraph 3.
Chapter X
AMENDING AND REPEALING CURRENT LEGISLATION
Article 37
(Amendments to the Civil Code)
1. At number 11) of the second paragraph of Article 2328 of the Civil Code, the words: «to whom is entrusted the financial audit» shall be replaced by the following: «responsible for carrying out the statutory audit of the accounts».
2. At number 4) of the first paragraph of Article 2335 of the Civil Code, the words: «to whom is entrusted the financial audit» shall be replaced by the following: «responsible for carrying out the statutory audit of the accounts».
3. At number 2) of the first paragraph of Article 2364 of the Civil Code, the words: «to whom is entrusted the financial audit» shall be replaced by the following: «responsible for carrying out the statutory audit of the accounts».
4. At number 5) of the first paragraph of Article 2364-bis of the Civil Code, the words: «the auditor» shall be replaced by the following: «the entity in charge of carrying out the statutory audit of the accounts».
5. In Article 2397, second paragraph, of the Italian Civil Code, the words: «among those entered in the register of auditors maintained by the Ministry of Justice» are replaced by the following: «among the statutory auditors entered in the specific Register».
6. In Article 2399 of the Civil Code, second paragraph, the words: «of the auditors» shall be replaced by the following: «of statutory auditors and statutory auditing companies»:
7. The heading of paragraph 4 of Section VI-bis, Chapter V, Title V, Book V of the Civil Code is replaced by the following: «Of the statutory audit of the accounts».
8. Article 2409-bis of the Civil Code is replaced by the following: «Article 2409-bis (Statutory audit of the accounts). - The statutory audit of the accounts of the company is carried out by a statutory auditor or a statutory auditing company entered in the specific Register».
The articles of association of companies that are not required to prepare consolidated financial statements may provide that the statutory audit is carried out by the Board of Statutory Auditors. In this case, the Board of Statutory Auditors is made up of statutory auditors entered in the Register».
9. 2409-ter, 2409-quater, 2409-quinquies, 2409-sexies of the Civil Code are hereby repealed.
10. In Article 2409-septies of the Italian Civil Code, the words: «of the financial audit» shall be replaced by the following: «of the statutory audit of the accounts».
11. In Article 2409-duodecies, fourth paragraph, of the Italian Civil Code, the words: «those entered in the Register of auditors maintained by the Ministry of Justice» are replaced by the following: «the statutory auditors entered in the specific Register».
12. Article 2409-quinquiesdecies of the Civil Code is replaced by the following: «Article 2409-quinquiesdecies (Statutory auditing). - The statutory audit of the accounts is carried out in compliance with Article 2409-bis, first paragraph».
13. In Article 2409-octiesdecies of the Civil Code, third paragraph, the words: «those entered in the register of auditors» shall be replaced by the following: «the statutory auditors entered in the specific Register».
14. In Article 2409-octiesdecies of the Civil Code, fifth paragraph, paragraph c), the words: «entities in charge of the audit» shall be replaced by the following: «the entity in charge of carrying out the statutory audit of the accounts».
15. Article 2409-noviesdecies of the Civil Code shall be subject to the following amendments:
a) the heading shall be replaced as follows: «Applicable legislation and statutory audit»;
b) the second paragraph shall be replaced as follows: «The statutory audit of the accounts is carried out in compliance with Article 2409-bis, first paragraph».
16. To Article 2427, first paragraph, of the Civil Code, after number 16) the following shall be incorporated: «16-bis) unless the company is included in the scope of consolidation and the information is contained in the supplementary notes to its consolidated financial statements, the total amount of fees payable to the statutory auditor or statutory auditing company for the statutory audit of the annual accounts, the total fees charged for other audit services performed, the total fees charged for tax advisory services and the total fees charged for other non-audit services; ».
17. Article 2429 of the Civil Code shall be subject to the following amendments:
a) the first paragraph after the words: «Board of Statutory Auditors» the following shall be incorporated: «and the entity in charge of carrying out the statutory audit of the accounts»;
b) the second paragraph, the second sentence shall be deleted;
c) in the third paragraph the words: «of the financial audit» shall be replaced by the following: «of the statutory audit of the accounts».
18. Article 2433-noviesdecies of the Civil Code shall be subject to the following amendments:
a) the first paragraph the words: «to control by auditing companies registered in the Special Register» shall be replaced by the following: «to statutory audit in accordance with the system provided for by special laws for public interest entities»;
b) the second paragraph the words: «of the auditing company» shall be replaced as follows: «of the entity in charge of carrying out the statutory audit of the accounts»;
c) the fifth and sixth paragraphs, the words: «of the financial audit» shall be replaced by the following: «of the statutory audit of the accounts».
19. In Article 2434-bis, second paragraph, of the Civil Code, the words: «the auditor has not submitted any observations» are replaced as follows: «the entity in charge of carrying out the statutory audit has made a judgement reporting the absence of irregularities».
20. In Article 2437-ter, second paragraph, of the Civil Code, the words: «audit» shall be replaced as follows: «statutory audit of the accounts».
21. Article 2441 of the Civil Code shall be subject to the following amendments:
a) the fourth paragraph the words: «by the company appointed to carry out the statutory audit» shall be replaced as follows: «by the statutory auditor or statutory auditing company»;
b) the sixth paragraph the words: «of the financial audit» shall be replaced by the following: «of the statutory audit of the accounts».
22. Article 2447-ter, t he first paragraph of the Civil Code, paragraph f) shall be replaced as follows: «f) the appointment of a statutory auditor or a statutory auditing company to audit the accounts of the business, when the company is not already subject to statutory audit;».
23. The first paragraph of article 2447-nonies of the Civil Code, the words: «audit» shall be replaced as follows: «statutory audit of the accounts».
24. In Article 2463, second paragraph, paragraph 8), of the Civil Code, the words: «any entities in charge of the audit» shall be replaced as follows: «any entities in charge of carrying out the statutory audit of the accounts».
25. The first paragraph of Article 2465 of the Civil Code, the words: «of an expert or an auditing company entered in the Register of auditors or of a statutory auditing company registered in the Special Register» shall be replaced as follows: «of a statutory auditor or a statutory auditing company entered in the Register».
26. Article 2477 of the Civil Code shall be replaced as follows: "Art. 2477 (Board of Statutory Auditors and statutory audit of the accounts). -The deed of incorporation may provide for determining the competences and powers and appointment of a Board of Statutory Auditors or of an auditor. The appointment of the Board of Statutory Auditors is required if share capital is not less than the minimum established for public limited companies. The appointment of the Board of Statutory Auditors is also required if the company: a) is responsible for preparing the consolidated financial statements; b) controls a company required to perform statutory audits; c) for two consecutive financial years it has exceeded two of the limits indicated by the first paragraph of Article 2435-bis. The obligation to appoint the Board of Statutory Auditors referred to in paragraph c) of the third paragraph shall cease if for two consecutive financial years, these limits are not exceeded. In the cases provided for by the second and third paragraphs the provisions concerning public limited companies shall apply; if the deed of incorporation does not provide otherwise, the statutory audit is carried out by the Board of Statutory Auditors. The shareholders' meeting approving the financial statements where the limits are exceeded indicated in the second and third paragraphs must proceed, within thirty days, to the appointment of the Board of Statutory Auditors. If the shareholders' meeting does not do so, the court will appoint one at the request of any interested subject.
27. Article 2478 of the Civil Code, number 4) of the first paragraph, the words: «or appointed auditor» shall be replaced as follows: «appointed» and in the second paragraph the words: «or auditor» shall be deleted.
28. In Article 2479, second paragraph, paragraph 3), of the Civil Code, the words: «of the auditor» shall be replaced as follows: «of the entity in charge of carrying out the statutory audit of the accounts».
29. Article 2482-noviesdecies of the Civil Code shall be subject to the following amendments:
a) the second paragraph the words: «or the auditor» shall be replaced as follows: «or the entity in charge of carrying out the statutory audit of the accounts»;
b) the fourth paragraph the words: «or the auditor» shall be replaced as follows: «or the entity in charge of carrying out the statutory audit of the accounts»;
30. In Article 2492, second paragraph, of the Italian Civil Code, the words: «of the audit» shall be replaced as follows: «for carrying out the statutory audit of the accounts».
31. The fifth paragraph of Article 2501-bis of the Civil Code, the words: «by the company appointed to carry out the obligatory statutory audit» shall be replaced as follows: «by the entity in charge of carrying out the audit of the accounts».
32. The second sentence of the third paragraph of Article 2501-sexies of the Civil Code shall be replaced as follows: «If the company is listed on regulated markets, the expert is chosen from among the auditing companies supervised by the National Commission for Listed Companies and the Stock Exchange».
33. In Article 2501-septies of the Civil Code, first paragraph, number 2), the words: «the audit» shall be replaced as follows: «the statutory audit».
34. Article 2624 of the Civil Code is abrogated.
35. Article 2625, first paragraph of the Civil Code shall be subject to the following amendments:
a) the words: «or audit» shall be deleted.
b) the words: «, to other corporate bodies or auditing companies» shall be replaced as follows: «or other corporate bodies».
36. In Article 2635, first paragraph, of the Civil Code, the words: «, liquidators and responsible auditors» shall be replaced as follows: «and liquidators».
Article 38
(Amendments to Legislative Decree 127 of 9 April 1991)
1. Article 38, paragraph 1, of Legislative Decree 127 of 9 April 1991, after the letter o-sexies) the following shall be incorporated: «o-septies) separately, the amount of fees payable to the statutory auditor or statutory auditing company to audit the consolidated accounts, for other audit services, tax advisory services and other non-statutory audit services provided to the group».
2. Article 41 of Legislative Decree 9 April 1991 no. 127, shall be replaced as follows: «Article 41 (Statutory audit of consolidated financial statements). - 1. The consolidated financial statements are subject to statutory audit. 2. The statutory audit of the consolidated financial statements shall be entrusted to the entity carrying out the audit of the financial statements of the company preparing the consolidated financial statements. 3. The consolidated financial statements and the related management report shall be communicated together with the financial statements for the statutory audit. 4. A copy of the consolidated financial statements with the management report and the audit report is filed during the fifteen days prior to the shareholders' meeting called to approve the financial statements and until it is approved. Shareholders can access them».
Article 39
(Amendments to the Consolidated Law on Banking)
1. After paragraph 1 of Article 51 of the Consolidated Law on Banking, referred to in Legislative Decree no. 385 of 1 September 1993, and later amendments, the following shall be added: «1-bis. The banks notify the Bank of Italy: a) the appointment and non-appointment of the entity carrying out the statutory audit of the accounts; b) the resignation of the entity carrying out the statutory audit of the accounts; c) the consensual termination of the mandate; d) the revocation of the statutory audit appointment, providing adequate explanations on the reasons that led to it. 1-ter. The Bank of Italy shall establish terms and conditions for the submission of the reports referred to in paragraph 1-bis».
2. Article 52 of Legislative Decree 385 of 1 September 1993 the following amendments shall be made: a) the heading shall be replaced as follows: «Communications of the Board of Statutory Auditors and the entities responsible for carrying out the statutory audits of the accounts»; b) paragraph 2, the words: «of the audit or financial audit» shall be replaced as follows: «of the statutory audits of the accounts»; c) paragraph 2-bis is hereby repealed.
3. Article 72 of Legislative Decree 385 of 1 September 1993 the following amendments shall be made: a) paragraph 5, the words: «of the financial audit» shall be replaced by the following: «of the statutory audits of the accounts»; b) paragraph 5-bis the words: «of the financial audit or audit» shall be replaced as follows: «of the statutory audit of the accounts».
4. Article 84, paragraph 5, of Legislative Decree no. 385 of 1 September 1993, the words: «of the financial audit or audit» shall be replaced as follows: «of the statutory audit of the accounts».
Article 40
(Amendments to the Consolidated Law on Financial Intermediation)
1. Article 8 of the consolidated provisions on financial intermediation, in accordance with Legislative Decree no. 58 of 24 February 1998, the following amendments shall be made:
a) paragraph 2, the words: «by the company appointed to carry out the audit» shall be replaced as follows: «by the entity in charge of carrying out the statutory audit of the accounts»;
b) paragraph 4, the words: «the company appointed to carry out the audit» shall be replaced as follows: «the entity in charge of carrying out the statutory audit of the accounts»;
c) paragraph 5, the words: «the company appointed to carry out the audit» shall be replaced as follows: «the entity in charge of carrying out the statutory audit of the accounts»;
2. Article 9 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «Article 9 (Statutory audit). - 1. The provisions of Article 159, paragraph 1 apply to stock broking companies, asset management companies and SICAVs. 2. Regarding asset management companies, the statutory auditor or statutory auditing company responsible for the audit shall make provision in a specific audit report for an opinion on the financial statements of the mutual fund».
3. Article 10, paragraph 1-bis of Legislative Decree no. 58 of 24 February 1998, the words «the company appointed to carry out the audit» are replaced as follows: «the entity in charge of carrying out the statutory audit of the accounts».
4. Article 25 of Legislative Decree 58 of 24 February 1998 the following amendments shall be made:
a) paragraph 4, the words: «the company appointed to carry out the audit» shall be replaced as follows: «the entity in charge of carrying out the statutory audit of the accounts»;
b) paragraph 5, the words: «the company appointed to carry out the audit» shall be replaced as follows: «the entity in charge of carrying out the statutory audit of the accounts»;
5. Article 48, paragraph 5, of Legislative Decree no. 58 of 24 February 1998, the words: «the company appointed to carry out the audit» shall be replaced as follows: «by the entity in charge of carrying out the audit of the accounts».
6. Article 61, paragraph 9, of Legislative Decree no. 58 of 24 February 1998, the words: «, 158, 165 and 165-bis» shall be replaced by the following: « and 158».
7. Article 96 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «Article 96 (Financial statements of the issuer). - 1. The last financial statements and any consolidated financial statements prepared by the issuer shall be accompanied by audit reports in which a statutory auditor or a statutory auditing company entered in the Register kept by the Ministry of Economy and Finance shall express their opinion. Any offer concerning financial products other than European Community financial instruments cannot be made if the statutory auditors or the statutory auditing company have expressed an adverse opinion or declared their inability to express an opinion».
8. Paragraph 3 of Article 97 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «3. The issuer shall submit the annual financial statements and consolidated financial statements, possibly agreed or drawn up during the period of the offer, to the judgement of a statutory auditor or a statutory auditing company entered in the appropriate register».
9. Article 115, paragraph 1, paragraph b) of Legislative Decree no. 58 of 24 February 1998, the words: «of the auditing company» shall be replaced as follows: «statutory auditors and statutory auditing companies»:
10. Paragraph 2 of Article 116 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «2. The provisions of Part IV, Title III, Chapter II, Section VI, shall apply to the issuers referred to in paragraph 1 with the exception of Articles 157 and 158».
11. Article 150, paragraph 3 of Legislative Decree no. 58 of 24 February 1998, the words «the company appointed to carry out the audit» shall be replaced as follows: «by the statutory auditor or statutory auditing company».
12. Article 154-ter of Legislative Decree 58 of 24 February 1998 the following amendments shall be made:
a) paragraph 1, second sentence, the words: «according to Article 156» shall be replaced as follows: «prepared by the statutory auditor or statutory auditing company»;
b) paragraph 2, the words: «of the auditing company» shall be replaced as follows: «by the statutory auditor or statutory auditing company».
13. The heading of Part IV, Title III, Chapter II, Section VI is replaced as follows: «Statutory audit of the accounts».
14. Paragraph 2 of Article 155 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «2. The statutory auditor or statutory auditing company shall immediately notify Consob and the supervisory body of facts deemed reprehensible which emerged in the carrying out of the statutory audit on financial statements and consolidated financial statements».
15. Paragraph 4 of Article 156 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «4. In the case of negative opinion or declaration of inability to express an opinion or in the presence of requests for information relating to significant doubts about the company as a going concern the statutory auditor or statutory auditing company shall promptly inform Consob».
16. Article 158 of Legislative Decree 58 of 24 February 1998 the following amendments shall be made:
a) paragraph 1, first sentence, the words: «by the company appointed to carry out the statutory audit» shall be replaced as follows: «by the entity in charge of carrying out the statutory audit of the accounts»;
b) paragraph 1, second sentence, the words: «of the auditing company» shall be replaced as follows: «of the statutory auditor or statutory auditing company»;
c) paragraphs 2 and 3, the words: «the auditing company» are replaced as follows «the statutory auditor or statutory auditing company».
17. Paragraph 1 of Article 159 of Legislative Decree 24 February 1998 no. 58, shall be replaced as follows: «1. In case of non-appointment of the statutory auditor or statutory auditing company, the company required to make the appointment must promptly notify Consob, explaining the causes of the delay in conferring the appointment».
18. Paragraph 4 of Article 165-quater of Legislative Decree no. 58 of 24 February 1998 shall be replaced as follows: «4. The financial statements of the foreign subsidiary, attached to the budget of the Italian company in accordance with paragraph 1, shall be audited by the statutory auditor or statutory auditing company appointed to audit the financial statements of the Italian company, if that entity does not operate in the State in which the foreign subsidiary has its head offices, it must make use of another suitable auditor or auditing company, taking responsibility for the work of the latter. Where the Italian company which is free of this obligation, has not appointed a statutory auditor of the accounts or a statutory auditing company, it must in any case make such an appointment in relation to the financial statements of the foreign subsidiary».
19. Article 165-quater, paragraph 5, of Legislative Decree no. 58 of 24 February 1998, the words: «by the company» shall be replaced as follows: «by the entity».
20. At Article 193 of Legislative Decree 24 February 1998 no. 58, the title shall be replaced as follows: «Corporate information and duties of the board of auditors, statutory auditors and statutory auditing companies».
21. Articles 12, paragraph 4, 155, paragraphs 1 and 3, 156, paragraphs 1, 2, 3, 4-bis and 5, 159, paragraphs 2, 3, 4, 5, 6, 7 and 8, 160, 161, 162, 163, 164, 165, 165-bis, 174-bis, 174-ter, 177, 178, 179 and 193, paragraph 3, paragraph b) of Legislative Decree no. 58 of 24 February 1998 shall be repealed.
Article 41
(Amendments to the Private Insurance Companies Code)
1. The heading of Chapter V of Title VIII of Legislative Decree no. 209 of 7 September 2005 shall be replaced as follows: «Statutory audit of the accounts».
2. Article 102 of Legislative Decree 209 of 7 September 2005 the following amendments shall be made:
a) the heading shall be replaced as follows: «Statutory audit of financial statements»;
b) paragraph 1 shall be replaced as follows: «1. The financial statements of insurance and reinsurance companies with head offices in the territory of the Republic and of the branch offices in the territory of the Republic, insurance and reinsurance companies with head offices in a Third State shall be accompanied by the report of a statutory auditor or statutory auditing company entered in the Register. If the statutory audit appointment is conferred on a statutory auditing company, at least one of its directors shall be registered as a professional actuary under Law no. 194 of 9 February 1942. If the statutory audit appointment is conferred on a statutory auditor, the provisions of Article 103 shall apply»;
c) paragraph 2, the words: «the auditing company who drafted the audit opinion in accordance with Article 156 of the consolidated provisions on financial intermediation» shall be replaced as follows: «by the statutory auditor or statutory auditing company»;
d) paragraph 3 shall be replaced as follows: «3. The provisions on statutory auditing of the accounts in Section VI of Chapter II of Title III of the consolidated provisions on financial intermediation, shall apply to the companies referred to in paragraph 1 with the exception of Articles 155, paragraph 2, Article 156, paragraph 4, 157, paragraph 2, and Article 159, paragraph 1»;
e) paragraph 5 shall be repealed.
3. Article 103 of Legislative Decree 7 September 2005 no. 209, shall be replaced as follows: "Article 103 (Actuary appointed by the statutory auditor or statutory auditing company). - 1. If the statutory audit appointment is given to a statutory auditor or the directors of the auditing firm do not include an actuary in the professional registers in accordance with Law no. 194 of 9 February 1942, the report referred to in Article 102, paragraph 1, shall be accompanied by the report of an actuary appointed by the statutory auditor or statutory auditing company. 2. The appointment of the actuary has a term of nine years and cannot be renewed or re-appointed, even on behalf of a different statutory auditing company, unless at least three years have elapsed from the date of termination of the previous appointment. If, before the expiry of the period, the statutory auditor or statutory auditing firm revokes the appointment of the actuary, this shall be communicated immediately to ISVAP and the reasons for it explained. The revocation takes effect when the appointment of another actuary has become effective. 3. The appointment cannot be conferred on an actuary who does not comply with the conditions of independence identified by ISVAP regulations or who, in relation to the insurance or reinsurance company or in relation to the actuary who acts as actuary for life insurance or civil liability insurance arising from the use of motor vehicles and craft, is in one of the situations of incompatibility identified by ISVAP regulations. 4. The actuary and the legal representative of the insurance or reinsurance company in which he/she carries out his/her assignment, shall communicate to ISVAP, within fifteen days of the appointment, the documentation proving the conditions of independence and absence of incompatibility referred to in paragraph 3 according to the provisions drawn up by ISVAP».
4. Article 104 of Legislative Decree 7 September 2005 no. 209, shall be replaced as follows: «Article 104 (Accounting management investigations). - 1. The ISVAP may require that the statutory auditor or statutory auditing company carry out a review, upon ascertaining the exact data entry in the accounting records, in order to comply with the accounting entries of the periodic situations concerning the balance sheet and the income statement of the company. In the course of such review, the statutory auditor or statutory auditing company shall make use of the actuary. The expenses shall be borne by the company.
5. Article 105 of Legislative Decree 209 of 7 September 2005 the following amendments shall be made:
a) paragraph 1, the words: «by the auditing company» shall be deleted;
b) paragraph 1, the words: «of the auditing company» shall be replaced as follows: «by the statutory auditor or statutory auditing company»;
c) paragraph 2, after the words: «103, paragraph 3,» are inserted as follows: «, the loss of a condition of independence laid down in article 103, paragraph 3,»;
d) paragraph 3, the words: «of the auditing company» shall be replaced as follows: «of the statutory auditor or statutory auditing company»;
e) paragraph 3, the words: «the auditing company» shall be replaced as follows: «the statutory auditor or statutory auditing company».
6. Article 190 of Legislative Decree 209 of 7 September 2005 the following amendments shall be made:
a) paragraph 2, the words: «of the auditing company» shall be replaced as follows: «by the entity in charge of carrying out the statutory audit of the accounts»;
b) after paragraph 5 the following paragraphs are added in order: «5-bis. Insurance and reinsurance undertakings shall communicate promptly to ISVAP: a) the appointment and non-appointment of the entity responsible for the statutory audit, setting out the reasons that led to the delay in the appointment;
c) the resignation of the entity responsible for the statutory audit; c) consensual resolution of the mandate; d) revocation of the appointment of the statutory auditor of the accounts, providing adequate explanations regarding the reasons that led to the decision. 5-ter. ISVAP shall establish the terms and conditions for the submission of the reports referred to in paragraph 5-bis. In the event of failure to appoint the person in charge of the statutory audit of the accounts, ISVAP shall take precautionary and authoritative measures and impose sanctions in accordance with the code.».
7. Article 1, paragraph 310, of Legislative Decree no. 209 of 7 September 2005, the words: «190, paragraph 1,» shall be replaced as follows: «190, paragraphs 1 and 5-bis».
8. Article 321 of Legislative Decree 209 of 7 September 2005 the following amendments shall be made:
a) paragraph 3 shall be replaced as follows: «3. The ISVAP shall notify the Ministry of Economy and Finance and Consob of sanctions imposed on statutory auditors and statutory auditing companies. The Ministry of Economy and Finance and Consob shall inform ISVAP of provisions taken.»;
b) paragraph 4 shall be repealed.
9. At Article 322 of Legislative Decree 7 September 2005 no. 209, the title shall be replaced as follows: «Duties of the statutory auditor or statutory auditing company».
10. Article 322, paragraph 1, of Legislative Decree no. 209 of 7 September 2005, the words: «the legal representatives of the auditing company» shall be replaced as follows: «the statutory auditor and the legal representatives of the statutory auditing company».
11. Article 322, paragraph 2, of Legislative Decree no. 209 of 7 September 2005, the words: «of the legal representatives of the auditing company» shall be replaced as follows: «of the statutory auditor and the legal representatives of the statutory auditing company».
12. Article 323 of Legislative Decree 209 of 7 September 2005 the following amendments shall be made:
a) paragraph 1, number: «3» of the first sentence shall be replaced as follows: «4»;
b) to paragraph 1, after the first sentence, the following shall be incorporated: «To the actuary appointed by the statutory auditor or statutory auditing company of an insurance or reinsurance company which violates Article 103, paragraph 3, pecuniary administrative sanctions from one hundred thousand to five hundred thousand euro shall apply. Penalties for the offence of bribery of the auditor also apply.».
Article 42
(Staff)
1. In order to ensure the effective and proper performance of the functions vested in the Ministry of Economy and Finance under this Decree, in the first application of this same Decree, the aforementioned Ministry, using the resources laid down in article 14, paragraph 1, of Legislative Decree no. 262 of 3 October 2006, converted, with modifications, by Law no. 286 of 24 November 2006, and within the spending limit of 300,000 euro per year starting from the year 2010, can confer up to three non-general executive-level appointments as an exception to the quantitative limit laid down in Article 19, paragraph 6 of Legislative Decree no. 165 of 30 March 2001, and subsequent amendments, as well as from the prohibitions and restrictions laid down in the applicable legislation. The aforementioned appointments are conferred on positions identified within the scope of the Ministry by decree to be issued in accordance with Article 17, paragraph 4-bis, paragraph e) of Law no. 400 of 23 August 1988 and Article 4, paragraphs 4 and 4-bis of Legislative Decree no. 300 of 30 July 1999.
2. A Central Commission for Statutory Auditors shall be set up at the Ministry of Economy and Finance without any new or increased charges to be borne by the State budget. The financial and material resources of the Commission provided for in Article 1 of the Decree of the President of the Republic no. 99 of March 6, 1998, shall be transferred to it and the former shall be suppressed. The functions of the Commission as well as its composition and remuneration shall be established by decree of the Ministry of Economy and Finance. The Ministry of Economy and Finance shall be authorised to make the necessary changes to the budget[134]/[135].
Article 43
(Repeals and final and transitional provisions)
1. The following are hereby repealed but continue to apply until the date of entry into force of the Regulations of the Ministry of Economy and Finance issued in accordance with this Decree:
a) Legislative Decree no. 88 of 27 January 1992;
b) Law no. 132 of 13 May 1997;
c) Decree of the President of the Republic no. 99 of 6 March 1998;
d) Law no. 222 of 8 July 1998;
e) Law no. 266 of 30 July 1998;
f) Decree of the President of the Republic no. 233 of 12 July 2000;
g) Legislative Decree no. 28 of 23 January 2006;
h) Article 52, paragraph 2-bis of Legislative Decree no. 385 of 1 September 1993;
i) Article 161 of Legislative Decree no. 58 of 24 February 1998;
j) Article 162, paragraphs 3 and 3-bis of Legislative Decree no. 58 of 24 February 1998;
k) Article 163, paragraph 1, paragraph b), paragraph 2, paragraphs a), b) and c), paragraph 4 and paragraph 5, of Legislative Decree no. 58 of 24 February 1998;
l) Article 2409-quinquies of the Civil Code.
2. The provisions issued by Consob in accordance with the rules repealed or replaced by this decree shall continue to apply, insofar as they are compatible, up to the date of entry into force of the provisions issued by Consob in accordance with this decree in the corresponding matters[136].
3. The auditing standards that were issued in accordance with Article 162, paragraph 2, paragraph a) of Legislative Decree no. 58 of 24 February 1998 on the date of entry into force of this Decree shall continue to apply until the date of entry into force of the auditing standards issued in accordance with Article 11 of this Decree. Until the signing of the agreement referred to in Article 12, paragraph 1, the auditing standards are issued in accordance with Article 162, paragraph 2, paragraph a) of Legislative Decree no. 58 of 24 February 1998.
4. Until the issue of the measures provided for in Articles 2, 3, 4, 6, 7, 8 and 13, statutory auditor refers to the entity entered in the Register of auditors in accordance with Legislative Decree no. 88 of 27 January 1992 and statutory auditing companies refers to the auditing companies registered in the special Register of auditing companies in accordance with Article 161 of Legislative Decree no. 58 of 24 February 1998 or in the Register referred to in Legislative Decree no. 88 of 27 January 1992[137].
5. Until the issue of the measures provided for in paragraph 1, statutory auditors and statutory auditing companies other than those entered in the Register referred to in Article 161 of Legislative Decree no. 58 of 24 February 1998 cannot carry out statutory audits of public interest entities.
6. As an exception to paragraph 5, appointments which had already been conferred on the date of entry into force of this Decree «in the current year» shall be deemed to have already been conferred in accordance with Article 2409-quater of the Civil Code and shall continue until the first end of the mandate following the issue of the measures referred to in paragraph 1.
7. Until the issue of the measures referred to in paragraph 1, Consob shall carry out the supervisory activities referred to in Article 22, paragraph 1, in relation to the entities entered in the Register referred to in Article 161 of Legislative Decree no. 58 of 24 February 1998.
8. The natural persons and companies which, at the time of entry into force of the Register referred to in Chapter III, are already entered in the Register of auditors referred to in Article 1 of Legislative Decree no. 88 of 27 January 1992, have the right to enter the Register referred to in Article 2 and in the Special Register of auditing companies referred to in Article 161 of Legislative Decree no. 58 of 24 February 1998.
9. Until the date of entry into force of the measures referred to in paragraph 1, Consob shall provide for the registration of auditors and audit entities from the Third countries referred to in Article 34, paragraph 1, in a special paragraph of the Special Register of auditing companies referred to in Article 161 of Legislative Decree no. 58 of 24 February 1998 according to the terms and conditions established by the same[138].
10. The fees in the agreements referred to in Article 21, paragraph 3, shall be determined within the limits of the amount of resources referred to in Article 21, paragraph 7, and taking into account of other costs arising from the activities in this decree.
[1] Published in Ordinary Supplement no. 58/L of Official Gazette no. 68 of 23.3.2010. Legislative Decree no. 39/2010 was subsequently amended by:
- Decree-Law no. 150 of 30.12.2013 (Official Gazette no. 304 of 30.12.2013), converted with modifications by Law no. 15 of 27.02.2014 (Official Gazette no. 49 of 28.02.2014);
- Legislative Decree no. 139 of 18.08.2015 (Official Gazette no. 205 of 04.09.2015);
- Legislative Decree no. 135 of 17.07.2016 (Official Gazette no. 169 of 21.07.2016);
- Legislative Decree no. 17 of 02.02.2021 (Official Gazette no. 46 of 24.02.2021).
[2] Letter added by Art. 1, paragraph 1, letter a) of Legislative Decree no. 135 of 17.07.2016.
[3] Letter thus replaced by Art. 1, paragraph 1, letter b) of Legislative Decree no. 135 of 17.07.2016.
[4] Letter added by Art. 1, paragraph 1, letter c) of Legislative Decree no. 135 of 17.07.2016.
[5] Letter thus replaced by Art. 1, paragraph 1, letter d) of Legislative Decree no. 135 of 17.07.2016.
[6] Letter thus replaced by Art. 1, paragraph 1, letter e) of Legislative Decree no. 135 of 17.07.2016.
[7] Letter thus replaced by Art. 1, paragraph 1, letter f) of Legislative Decree no. 135 of 17.07.2016.
[8] Letter added by Art. 1, paragraph 1, letter g) of Legislative Decree no. 135 of 17.07.2016.
[9] Letter thus replaced by Art. 1, paragraph 1, letter h) of Legislative Decree no. 135 of 17.07.2016.
[10] Letter thus replaced by Art. 1, paragraph 1, letter i) of Legislative Decree no. 135 of 17.07.2016.
[11] Letter thus replaced by Art. 1, paragraph 1, letter l) of Legislative Decree no. 135 of 17.07.2016
[12] Letter thus replaced by Art. 1, paragraph 1, letter m) of Legislative Decree no. 135 of 17.07.2016.
[13] Letter thus replaced by Art. 1, paragraph 1, letter n) of Legislative Decree no. 135 of 17.07.2016.
[14] Letter thus replaced by Art. 1, paragraph 1, letter o) of Legislative Decree no. 135 of 17.07.2016.
[15] Letter added by Art. 1, paragraph 1, letter p) of Legislative Decree no. 135 of 17.07.2016.
[16] Letter added by Art. 1, paragraph 1, letter p) of Legislative Decree no. 135 of 17.07.2016.
[17] Letter added by Art. 1, paragraph 1, letter p) of Legislative Decree no. 135 of 17.07.2016.
[18] Letter added by Art. 1, paragraph 1, letter p) of Legislative Decree no. 135 of 17.07.2016.
[19] In implementation of the provisions of this letter see D.M. no. 145 of 20 June 2012.
[20] In implementation of the provisions of this letter see D.M. no. 145 of 20 June 2012.
[21] In implementation of the provisions of this letter see D.M. no. 145 of 20 June 2012.
[22] In implementation of the provisions of this letter see D.M. no. 145 of 20 June 2012.
[23] In implementation of the provisions of this letter see D.M. no. 145 of 20 June 2012.
[24] Letter added by Art. 2, paragraph 1 of Legislative Decree no. 135 of 17 July 2016.
[25] In implementation of the provisions of this paragraph see D.M. no. 145 of 20 June 2012.
[26] Article thus replaced by Art. 3, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[27] See, also, the guidelines for the performance of traineeships referred to in this article and approved by Provision of 23 February 2018.
[28] For the applicability of the limit referred to in this letter, see Art. 27, paragraph 3, of Legislative Decree no. 135 of 17 July 2016.
[29] In implementation of the provisions of this paragraph see D.M. no. 146 of 25 June 2012.
[30] Paragraph thus replaced by Art. 4, paragraph 1, letter a), of Legislative Decree no. 135 of 17 July 2016.
[31] Paragraph added by Art. 4, paragraph 1, letter b), of Legislative Decree no. 135 of 17 July 2016.
[32] In implementation of the provisions of this paragraph see D.M. no. 63 of 19 January 2016.
[33] Paragraph added by Art. 9, paragraph 14, of Decree-Law no. 150 of 30 December 2013, converted with modifications by Law no. 15 of 27 February 2014.
[34] Paragraph thus replaced by Art. 4, paragraph 1, letter c), of Legislative Decree no. 135 of 17 July 2016.
[35] Article thus replaced by Article 5, paragraph 1, of Legislative Decree no. 135 of 17 July 2016. For the date of effect of the continuing education obligation referred to in this article, see Article 27, paragraph 4, of the same Legislative Decree no. 135/2016.
[36] With regard to the terms of fulfilment of the obligation to participate in professional refresher courses provided for by this paragraph, for the years 2020 and 2021, see Article 3, paragraph 7, of Decree-Law no. 183 of 31 December 2020, converted with modifications by Law no. 21 of 26 February 2021; for the years 2017, 2018, and 2019, see Article 3, paragraph 5-terdecies, indent, of Decree-Law no. 228 of 30 December 2021, converted with modifications by Law no. 15 of 25 February 2022.
[37] In implementation of the provisions of this paragraph, see, for the year 2017, Determination no. 37343 of 7 March 2017; for the year 2018, Determination no. 2812 of 9 January 2018; for the year 2019, Determination no. 23018 of 13 February 2019 and, for the year 2020, Determination no. 17461 of 27 January 2020.
[38] With regard to the terms of fulfilment of the obligation to participate in professional refresher courses provided for by this paragraph, for the years 2020 and 2021, see Article 3, paragraph 7, of Decree-Law no. 183 of 31 December 2020, converted with modifications by Law no. 21 of 26 February 2021; for the years 2017, 2018, and 2019, see Article 3, paragraph 5-terdecies, indent, of Decree-Law no. 228 of 30 December 2021, converted with modifications by Law no. 15 of 25 February 2022.
[39] Article added by Article 6, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[40] In implementation of the provisions of this paragraph see D.M. no. 144 of 20 June 2012.
[41] Paragraph thus replaced by Article 7, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[42] Article thus replaced by Article 8, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[43] Article thus replaced by Article 9, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[44] Article thus replaced by Article 10, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[45] In implementation of the provisions of this paragraph see Determination no. 245504 of 20 November 2018.
[46] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[47] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[48] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[49] Article added by Article 11, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[50] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016
[51] In implementation of the provisions of this paragraph see Determination no. 245504 of 20 November 2018
[52] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016
[53] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016
[54] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016
[55] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[56] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[57] In accordance with Article 94, paragraph 2, of EU Regulation 2016/679 of 27 April 2016, any references to EC Directive 95/46 shall be construed as references to the same EU Regulation 2016/679.
[58] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[59] Article thus replaced by Article 12, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[60] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[61] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[62] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[63] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[64] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[65] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[66] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[67] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[68] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016
[69] Article added by Article 13, paragraph 1, of Legislative Decree no. 135 of 17 July 2016; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[70] Article added by Article 13, paragraph 1, of Legislative Decree no. 135 of 17 July 2016; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[71] Article added by Article 13, paragraph 1, of Legislative Decree no. 135 of 17 July 2016; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016
[72] Article added by Article 13, paragraph 1, of Legislative Decree no. 135 of 17 July 2016; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[73] Article thus replaced by Article 14, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[74] Article repealed by Article 15, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[75] See also Determination of 23 December 2014.
[76] Article thus replaced by Article 16, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[77] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[78] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[79] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[80] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[81] In implementation of the provisions of this paragraph see D.M. no. 261 of 28 December 2012.
[82] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[83] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[84] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[85] Article modified by Article 10, paragraph 1, of Legislative Decree no. 139 of 18 August 2015, effective from 1 January 2016 and applicable to the accounts of the tax years starting from such date, in accordance with the provisions of Article 12, paragraph 1, of the same Legislative Decree no. 139/2015. This article was subsequently thus replaced by Article 17, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[86] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[87] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[88] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[89] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[90] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[91] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[92] On the applicability of the provisions of this paragraph, see Article 27, paragraph 9, of Legislative Decree no. 135 of 17 July 2016.
[93] Article thus replaced by Article 17, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[94] The original Chapter V, comprising Articles from 16 to 19, was thus replaced into current Chapter V, comprising Articles from 16 to 19-ter, by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016. Previously, the heading was as follows: «Special provisions relating to entities of public interest».
[95] Article corrected by Communication of 14 February 2013, published in the Official Gazette no. 38 of 14 February 2013 and subsequently thus replaced by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter V; for the application of the latter provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[96] Article thus replaced by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter V; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[97] Article thus replaced by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter V; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[98] Article thus replaced by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter V; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[99] Article added by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter V; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[100] Letter thus amended by Article 5, paragraph 1, letter a), of Legislative Decree no. 17 of 2 February 2021.
[101] Letter added by Article 5, paragraph 1, letter b), of Legislative Decree no. 17 of 2 February 2021.
[102] Article added by Article 18, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter V; for the application of this provision, see Article 27, paragraph 9, of the same Legislative Decree no. 135/2016.
[103] Article thus replaced by Article 19, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[104] The original Chapter VII, comprising Articles from 21 to 23, was thus replaced into current Chapter VII, comprising Articles 21, 21-bis, 22 and 23, by Article 20, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[105] Article thus replaced by Article 20, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VII.
[106] In implementation of the provisions of this paragraph, see D.M. of 24 September 2012, D.M. of 20 September 2013, D.M. of 25 September 2014, D.M. of 2 October 2015, D.M. of 5 December 2016 and D.M. of 9 December 2020.
[107] Article added by Article 20, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VII.
[108] Article thus replaced by Article 20, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VII; see further provisions of Article 27, paragraph 10, of the same Legislative Decree no. 135/2016.
[109] Article thus replaced by Article 20, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VII.
[110] The original Chapter VIII, comprising Articles from 24 to 32, was thus replaced into current Chapter VIII, comprising Articles from 24, 24-bis, 24-ter, 25, 26, 26-bis, 26-ter, 27, 28, 29, 30, 31 and 32, by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[111] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VII.
[112] Article added by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[113] Article added by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[114] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[115] Editor’s note: the text of this letter corresponds to what is published in the Official Gazette.
[116] In implementation of the provisions of this paragraph, see D.M. no. 135 of 8 July 2021.
[117] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII; for the application of this provision, see Article 27, paragraph 11, of the same Legislative Decree no. 135/2016.
[118] Article added by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[119] Article added by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[120] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[121] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[122] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[123] In accordance with Article 1, paragraph 1, of Legislative Decree no. 8 of 15 January 2016, all violations that require only the sanction of a fine or penalty constitute no criminal offences and are subject to the administrative sanction of payment of a sum of money. Consequently, the amount of this sanction was amended from 10,000 euro to 50,000 euro, in accordance with the provisions of Article 1, paragraph 5, letter c), of the same Legislative Decree no. 8/2016. By virtue of the provisions of Article 5, paragraph 1, of the same Legislative Decree no. 8/2016, when the criminal offences downgraded to administrative offences in accordance with the aforementioned decree envisage aggravated offences that are based on relapse and excluded from decriminalization, relapse shall mean the reiteration of the decriminalized offence.
[124] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[125] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[126] Article thus replaced by Article 21, paragraph 1, of Legislative Decree no. 135 of 17 July 2016, which replaced the whole Chapter VIII.
[127] Paragraph thus replaced by Article 22, paragraph 1, letter a), of Legislative Decree no. 135 of 17 July 2016.
[128] Paragraph repealed by Article 22, paragraph 1, letter b), of Legislative Decree no. 135 of 17 July 2016.
[129] Paragraph repealed by Article 22, paragraph 1, letter b), of Legislative Decree no. 135 of 17 July 2016.
[130] Paragraph thus replaced by Article 22, paragraph 1, letter c), of Legislative Decree no. 135 of 17 July 2016.
[131] Paragraph thus replaced by Article 22, paragraph 1, letter c), of Legislative Decree no. 135 of 17 July 2016
[132] Article thus replaced by Article 23, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[133] Article thus replaced by Article 24, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[134] Paragraph thus replaced by Article 25, paragraph 1, of Legislative Decree no. 135 of 17 July 2016.
[135] In implementation of the provisions of this paragraph, see D.M. of 9 February 2022.
[136] Paragraph thus amended by Article 26, paragraph 1, letter a), of Legislative Decree no. 135 of 17 July 2016.
[137] Paragraph thus amended by Article 26, paragraph 1, letter b), of Legislative Decree no. 135 of 17 July 2016.
[138] In implementation of the provisions of this paragraph, see Consob Resolution no. 17439 of 27 July 2010.