From the 1st June 2023, a new sanctioning regulations will be in force, provided by Ministerial Decree No. 587/2021, for the cooperative companies directly supervised by the Ministry of Enterprise and Made in Italy (MIMIT), which envisages a tightening of the sanctions applicable to the aforementioned legal entities. In the new sanction provisions it is regulated that, in the event that the auditor or the inspector in charge of carrying out the mutual inspection detects and ascertains the existence of one of the three illegitimate conducts provided by the provision ex art. 12, paragraph 5 bis, Legislative Decree 220/2002, as amended by the discipline ex art. 1, paragraph 936, letter a) of Law no. 205 of 27 December 2017, it is necessary to proceed with a formal dispute to be transmitted directly to MIMIT. 

 

The administrative sanction, consisting in the payment of a surcharge on the biennial review fee equal to three times the amount due, may be imposed on the cooperative in the following three cases:

 

1. the cooperative fails, without a justified reason, to comply with a warning issued by the auditor or inspector during supervision for the elimination of irregularities that can be remedied;

2. the cooperative lost the characteristic of prevalent mutuality due to the breach of the prevalence condition pursuant to Article 2513 of the Italian Civil Code and did not comply with the provisions of Article 2545, paragraph 2, octies of the Italian Civil Code; 

3. the cooperative lost its status as a cooperative with prevalent mutuality because it modified the provisions set forth in Article 2514 of the Civil Code and did not comply with the provisions of Article 2545 octies of the Civil Code. 

 

The auditor or inspector who, upon inspection, verifies that the cooperative has failed, following a warning, to remedy irregularities that can be remedied without just cause or has failed to comply with the obligations set forth in Article 2545-octies of the Civil Code, shall:

 

1. immediately contest the infringement to the legal representative or the person delegated by the legal representative to attend the inspection;

2. complete, deliver and sign the specific dispute form attached to the decree;

3. transmit, within three days, the aforementioned model to the competent division of the General Directorate of the Ministry delegated to the supervision of the cooperative system (Division V). 

 

In the event that the legal representative or the delegated person refuses to sign the notice of objection, the auditor shall forward it to the certified mail address of the cooperative society or by registered letter.

 

Division V, within 90 days of receipt to notify the cooperative company of the breach charged and to impose the sanction in compliance with the parameters provided by Article 12, paragraph 5 bis of Legislative Decree No. 220/2002, also specifying the payment and collection methods, to be carried out exclusively through the Revenue Agency by F24 form, plus any postal charges for notification (in the event that the transmission of the communications by certified e-mail was not possible). The co-operative has the option of paying the prescribed penalty at a reduced rate of 30%, if the payment is made within five days from the notification.

 

The sanctioned cooperative company, within the term of thirty days from the notification, may submit to Division V defence writs and documents to request the review of the measure. In this case the Ministry may, alternatively:

 

1. deem the objection to be well-founded and notify the amount of the administrative penalty and order payment;

2. issue a reasoned order to dismiss the case if it does not consider the complaint to be well founded.

 

The Administration that has applied the sanction, in the event that the co-operative company is in bad economic conditions and upon the latter's express request, may allow this sanction to be paid in monthly instalments between three and thirty, none of which may bear an amount less than Euro 30.00. Once the deadline set by the Ministry has expired unsuccessfully, even if it relates to only one of the agreed instalments, the cooperative is obliged to pay the remaining amount of the penalty in a single instalment. This does not preclude that, at any time, the debt may be discharged by means of a single payment.

 

Finally, once the deadline for payment of the penalty has expired to no avail, it is the Administration's right to proceed with collection by means of enforcement.

 

author: Dott. Antonino Guarino