La responsabilità dei sindaci di società quotate per omessa vigilanza sulle operazioni con parti correlate. La verifica sull’adeguatezza delle procedure e sulla correttezza dei singoli affari: il difetto di indipendenza dell’advisor, nota a Cass. 10 luglio 2020, n. 14708

The purpose of this paper is to investigate the role attributed to the statutory auditors, stemming from the Judgment of the Italian Supreme Court (Corte di Cassazione) in the area of related party transactions. The statutory auditors are required to assess the adequacy of related party transactions’ procedures set up by directors to grant that no “silent company emptying” phenomenon occurs, as required by the relevant law. The Regulation therefore demands a specific assessment to be conducted by the statutory auditors, similar to the one laid down in the area of administrative and accounting procedures pursuant to artt. 2381, co. 5 and 149, co. 1, TUF which require the statutory auditors to provide advice and inputs to the directors. With refernce to each related party transaction, the statutory auditors are required to carry out an analytical assessment of the effective implementation of the applicable law, regulation and self-regulation. In doing so they are required to focused, among other things, on the existence of the independence requirements of the committee for related party transactions and of the advisor supporting such committee. The statutory auditors’ remarks and recommendations should be addressed first of all to the company directors to allow them to take all the appropriate measures to remove the shortcomings identified by the auditors and, after that, to the shareholders if needed. Generally speaking, the statutory auditors are required to carry out a substantial and procedural fairness assessment in the interest of all stakeholders.