Criminal liability of board of statutory auditors in case of violation of their legal control duty
The Supreme Court with sentence n. 12186/2019 affirmed that in the event of significant violations by directors, the acquiescence of the board of auditors is considered a contributory negligence in crime of fraudulent bankruptcy of directors.
As a matter of fact, the extent of auditors’ control provided by art. 2403 of the civil code cannot be reduced to a simple review of accountancy but must also extend to the content of the management, to protect not only the shareholders but all social creditors.
Therefore, auditors’ control couldn’t be an elementary check of accounting limited to records made available by directors, but must be carried out through dedicated monitoring on performance of company operations.
Statutory auditors hold many tasks that provide for inspection and control, request for business informations on every aspect of the company activity or on specific business, the possibility of convening shareholder’s general meeting when they identified serious issues, the possibility of reporting to the Court the serious irregularities committed by the directors.
So the criminal liabilities of the auditors can be recognized as an conspiracy according to art. 40 paragraph 2 of the criminal code, in terms of violation of their legal duty of control.
This responsibility must be based on “specific symptomatic elements“, which could be essential to find voluntary participation in directors’ misappropriation behavior. The Court has specified, however, that it may be enough to identify the “fraudulent misrepresentation“, or in other words, the conscious acceptance of the risk that the omitted control could allow the commission of intentional tort by the directors.
In addition the causal connection between the conspiracy and the occurance of the event must also be evaluted, and it’s necessary to verify if the auditor’s behavior has consciously determined or facilitated the commission of the bankruptcy dispositive facts by directors.
The importance of the tasks assigned to statutory auditors and the relevance of their responsibility’s profiles are confirmed by the New Code on Business Crisis, which also provides for an extention of their supervisory authority.