CRISI DI IMPRESA E ADEGUATI ASSETTI ORGANIZZATIVI
Tempo di lettura: 3 minuti

La crisi in corso, causata dall’emergenza sanitaria ed economica da Coronavirus, sta determinando un aumento dei casi di insolvenza ed inadempienza delle imprese e sta alimentando, almeno potenzialmente, situazioni di irreparabile difficoltà. In tale contesto, a fronte dell’urgenza di adottare adeguati assetti organizzativi e rafforzare i presidi di controllo interni alle imprese, un ruolo strategico potrà essere svolto dalle regole della compliance 231, in grado di contribuire a presidiare il maggior rischio di eventuali condotte che potrebbero rivelarsi anche non lecite.

SI LEGGA L’ARTICOLO “ADEGUATI ASSETTI” DI M&G SERVIZI (ESPERTI IN CONTROLLO DI GESTIONE)

Sarà certamente opportuno aggiornare i modelli organizzativi delle aziende per implementare i flussi informativi necessari agli organismi di vigilanza per intercettare e prevenire possibili comportamenti “poco trasparenti”.

L’art. 5 del decreto Liquidità (D.L. n. 23/2020) ha rinviato al 1° settembre 2021 l’entrata in vigore del Nuovo Codice della Crisi di Impresa (originariamente prevista per il 15 agosto 2020).

La ratio di tale provvedimento, come si legge proprio nella Relazione Illustrativa al suddetto decreto, è stata riscontrata, tra l’altro, nella difficoltà di conciliare il sistema delle misure di allerta (quali misure volte a provocare l’emersione anticipata della crisi delle imprese ma in un quadro economico stabile e caratterizzato da oscillazioni fisiologiche) e la situazione “emergenziale” e di shock provocata dal lockdown, prima, e dal prosieguo della pandemia, poi, in cui pressoché l’intero tessuto economico risulterà colpito da una forma di crisi.

Disposto dell’art. 2086 del Codice Civile

“L’imprenditore è il capo dell’impresa e da lui dipendono gerarchicamente i suoi collaboratori. L’imprenditore, che opera in forma societaria o collettiva, ha il dovere di istituire un assetto organizzativo, amministrativo e contabile adeguato alla natura ed alle dimensioni dell’impresa, anche in funzione della rilevazione tempestiva della crisi dell’impresa e della perdita della continuità aziendale, nonché di attivarsi senza indugio per l’adozione e l’attuazione di uno degli strumenti previsti dall’ordinamento per il superamento della crisi e il recupero della continuità aziendale”.

Tale definizione chiarisce che tra il datore di lavoro ed i suoi dipendenti si instaura un rapporto di subordinazione, ma in capo al primo soggetto menzionato subentra l’obbligo di istituire una struttura che sia direttamente proporzionata alle dimensioni dell’azienda di cui egli è a capo e, prudenzialmente, anche di fare in modo che essa possa resistere alle situazioni di difficoltà.

Quest’ultimo aspetto si propone di rafforzare ulteriormente la salvaguardia del patrimonio aziendale e la tutela dei creditori, e su questi due pilastri il legislatore ha inteso garantire prevalentemente l’archetipo su cui si reggono le disposizioni civilistiche in tema di diritto societario e di redazione del bilancio di esercizio.

Necessità di salvaguardare l’azienda

Come si può dedurre dal 1° comma n.1) dell’articolo 2423-bis del Codice Civile, in base al quale “la valutazione delle voci deve essere fatta secondo prudenza e nella prospettiva della continuazione dell’attività”, se da un lato c’è la necessità di tutelare l’integrità del patrimonio aziendale e le pretese dei creditori, dall’altro c’è anche il bisogno di dare un senso ed un modo per far sì che l’azienda possa produrre e fronteggiare ogni situazione, così da salvaguardare anche la sua attività che, per definizione, deve durare nel tempo e deve contribuire ad un più vasto processo di crescita economica di una determinata area. Anche in questa direzione, si è reso necessario rinviare al 1° settembre 2021 l’entrata in vigore del CODICE DELLA CRISI DI IMPRESA, dando così un ragionevole e congruo arco di tempo alle imprese in difficoltà di poter recuperare la loro capacità di produrre, beneficiando anche dei contributi a fondo perduto e/o di altre forme di finanziamento di cui esse necessitano per potersi sostenere.


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