CBA Latest News (Mar 17, 2016)

Date: Mar 2016

The bill of law against corruption: the adaptation of the organizational models and the necessary protection of the anonymity "whistleblowers"

On January 21st, 2016, was approved by a large majority in the Chamber of Deputies the Bill of law no.2208 in order to, among other things, strengthen the protection of the so-called "Whistleblowers" in the public and private sectors; such protection is granted on the three different fronts of the protection of the worker, the organization and management models pursuant to Legislative Decree no.231/2001 and the privacy. The above mentioned Bill of law is now awaiting approval by the Senate and, if approved, will result in significant changes in the framework of the fight against corruption.

Firstly, the Bill of law strongly guarantees the employee who-in good faith-reports to the ANAC, to the subjects responsible for the anti-corruption or to ordinary and/or accounting judiciary bodies any offenses which have come to their knowledge by reason of their employment, preventing that such conducts are source of damage to the worker.

Furthermore, with regard to administrative liability of entities (Legislative Decree no.231/2001), the Bill of law requires the adaptation of the organizational models through the introduction of a specific procedure ensuring the regulation of the internal flow of information, in order to protect the confidentiality of those reporting the irregularities, prohibiting the adoption of potential retaliatory and discriminatory measures, and considering "alternative channels of reporting, of which at least one is able to ensure, even with IT measures, the confidentiality the reporting party" (art.2 of the Bill of law).

Finally, with regard to the privacy aspects (Legislative Decree no.196/2003), the Bill of law requires that protection of the right to anonymity of the informant, in the context of the correct treatment of the data regarding the reports.

The so-called "After us" bill of law and the trust for the protection of weak subjects

On February 4th, 2016, was approved - by a large majority of the Italian Chamber of Deputies - the so-called “After us” Bill of law (unified text no. 698-1352-2205-2456-2578-2682), now awaiting approval by the Senate, aiming to “promote the well-being, the social inclusion and the autonomy of subjects with disabilities [...] of a serious degree”, as well as those with disabilities “not determined by the natural aging or medical conditions related to old age, lacking family support [...]” (art. 1 of the Bill of law) through the setting up of an assistance Fund (the access to which shall be specifically regulated by the Minister of Labour within six months after the entry into force of the law), and the forecast of important tax breaks with regard to particular institutions (insurance policies, donations, transfers of goods and rights mortis cause, trust) in favour of the so-called “vulnerable subjects”.

With reference to the assistance Fund, the Stability Law of 2016 (Law December 28th, 2015, no. 208, art. 1, par. 400) has already allocated a special fund of 90 million Euros; in terms of tax benefits provided by the Bill of law, stand out the regulatory provisions to encourage the use of the institute of the trust by those who (for example, the parents) want to design - with solid guarantees - the future of disabled people, ensuring that the latter have a better quality of life even in the event that they were to remain alone.

In order to obtain the above tax benefits the trust shall in particular i) be established by public deed; ii) precisely identify in the deed the involved subjects and their respective roles, given that the role of the beneficiary will have to be taken by the so-called weak subject; iii) precisely indicate in the deed the needs of the beneficiary, including the specific activities aimed at reducing the risk of “institutionalization of disabled persons” (Art. 6 of the Bill of law).

The Stability Law for the year 2016 and the "Benefit Companies": an all-Italian record

The Stability Law for the year 2016 (Law December 28, 2015 no. 208, Sect. 1 par. 376 & following) has introduced into our legal system a specific regulation on the establishment of the so-called "Benefit Company", legal entity of US origin, and implemented in Europe for the first time, aimed at creating a corporate subject which, next to the profit goal, is also pursuing an aim of "mutual benefit", i.e. having as a further corporate objective to achieve positive effects and/or reduce any potential negative effects by operating in a way “responsible, sustainable and transparent to wards people, communities, territories and the environment, cultural activities, organizations and associations, and other relevant subjects”(Art. 1 par. 376 Stability Law).

The rules introduced by the Stability Law provide for the possibility for partnerships, corporations and cooperative companies to transform and/or to establish themselves as “Benefit Companies”, or to “adjust” their by-laws, including in their corporate object the purposes of common benefit pursued. During their business, the Benefit Companies shall also draft an annual report, to be attached to the financial statements, containing the evidence of the activity performed in order to achieve the objective of “common benefit” pursued. Finally, these companies will be able to add, next to their name the indication of “Benefit Company” or “SB” shortened.

Lastly, important improvements have been introduced with reference to the discipline of the liability of the directors of the Benefit Company, who shall be held responsible for violation of the duties imposed by the law and the statute should they not manage the business pursuing, in addition to the typical for-profit scope, the purposes of common benefit.

It shall be interesting to evaluate the evolution and the impact which such legal establishment will produce in the Italian corporate reality, even considering the significant development which has occurred overseas where the so called “B-Corporations”, capable of generating a strong social impact and a positive competitiveness among companies operating in the same sector, have attracted an extensive interest of stakeholders and shareholders.

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