PwC International Business Reorganisations Network Monthly Legal Update

Transcription

1 PwC Interntionl Business Reorgnistions Network Monthly Legl Updte Edition 4, April 2017 Contents TLS Associzione Professionle di Avvocti - Nonfinncil reporting: push towrds progressive governnce nd sustinle usiness 1 The introduction of new corporte vehicle in the 5 7 Welcome Welcome to the fourth edition of the PwC Interntionl Business Reorgnistions (IBR) Network Monthly Legl Updte for The PwC IBR Network provides legl services to ssist multintionl orgnistions with their crossorder reorgnistions. We focus on post-del integrtion, pre-trnsction seprtion nd crve outs, single entity projects, nd legl entity rtionlistion nd simplifiction s well s generl usiness nd corporte nd commercil structuring. Ech month our glol legl network rings you insights nd updtes on key legl issues nd developments relevnt to multintionl orgnistions. We hope tht you will find this puliction helpful, nd we look forwrd to hering from you. In this issue In our April 2017 issue: TLS Associzione Professionle di Avvocti e Commercilisti (Itly) consdiers new nonfinncil reporting oligtions in Itly; reports on the foundtion compny vehicle introduced y the government; nd discusses the. Contct us For your glol contct nd more informtion on PwC s IBR services, plese contct: Richrd Edmundson Prtner nd Hed of Interntionl Business Reorgnistions, London +44 (0) richrd.j.edmundson@pwc.com PwC Interntionl Business Reorgnistions Network Monthly Legl Updte Edition 4, April 2017

2 TLS Associzione Professionle di Avvocti e Commercilisti (Itly) - At glnce New reporting duties for corporte odies of lrge pulic-interest entities (i.e. listed compnies, nks, insurnce undertkings) entered into force in Itly on Jnury 25, Notly, they concern the disclosure of nonfinncil informtion on specific res concerning the environment, socil nd employee-relted mtters, respect for humn rights, policies of socil diversity, nticorruption nd riery mtters. The new rules re included in Legisltive Decree no. 254 of 2016 (Legisltive Decree), which implements Directive 2014/95/EU on disclosure of non-finncil nd diversity informtion. The Legisltive Decree ims to promote the usiness communiction lso in reltion to those noneconomic indices tht contriute to understnd the rel vlue of n enterprise nd to ensure trnsprency on the min risks nd impcts deriving from the usiness opertions. In detil New reporting duties for corporte odies of lrge pulic interest entities entered into force on Jnury 25, Notly, they concern the disclosure of specific non-finncil informtion (i.e. res concerning the environment, socil nd employeerelted mtters, respect for humn rights, nticorruption nd riery mtters) to e sumitted to the Compnies Register (Non-Finncil Declrtion) together with the finncil sttements. The new rules re included in Legisltive Decree no. 254 of 2016 ("Implementtion of Directive 2014/95/EU of the Europen Prliment nd of the Council of Octoer 22, 2014, mending Directive 2013/34/EU s regrds disclosure of non-finncil nd diversity informtion y certin lrge undertkings nd groups"), pulished in the Officil Journl on Decemer 30, 2016 (Legisltive Decree). The ojective of the Europen nd Itlin Legisltors ws to promote the usiness communiction not only on finncil informtion which ws considered sufficient to express the mrket vlue of compny in the pst ut lso on non-economic indices such s compny s socil nd environmentl policies. This Legisltive reform lso ims to meet the economic opertors growing demnd for comprehensive trnsprency in reltion to the impcts nd risks deriving from usiness opertions. Responsile prties nd effective dte of the oligtions The Legisltive Decree is ddressed to the lrge pulic-interest entities mentioned in Section 16, prgrph 1, of Legisltive Decree no. 39, 2010, nmely: Itlin compnies issuing trnsferle securities dmitted to trding on Itlin nd EU regulted mrkets; PwC 1

3 c d nks; certified Itlin insurnce undertkings or Itlin insurnce compnies; nd reinsurnce undertkings with registered office in Itly s well s the Itlin rnches of non- EU reinsurnce compnies. Such entities must lso meet the following dimensionl requirements: more thn 500 employees on the verge during the finncil yer; nd on the finncil sttements closing dte, exceed t lest one of the following: totl lnce sheet mount: Euro 20,000,000, or, totl net revenues from sles nd services: Euro 40,000,000, (Lrge PIEs). The new oligtions pply from the finncil yers strting from Jnury 1, However, the Legisltive Decree llows certin exemptions which re descried in Section 6. Content of the Non-Finncil Declrtion Section 3 of the Legisltive Decree estlishes tht the Non-Finncil Declrtion shll include the following informtion t lest, with reference to the res indicted y the lw: c d with regrd to environmentl mtters, the use of wter nd energy resources y the compny (distinguishing etween renewle nd nonrenewle resources), greenhouse gs emissions, the impct of the usiness ctivity on the environment nd helth nd sfety nd disclosure of potentil environmentl nd helth risk fctors; with reference to socil nd employee-relted mtters, mngement methods, including the mesures in plce for gender equlity nd implementing the conventions of interntionl nd suprntionl orgnistions; with regrd to humn rights nd diversity policies, the mesures dopted y the entity to prevent the violtion of these rights nd ctions for prevention discrimintory ehviours; nd the description of internl procedures dopted y the compny in reltion to the nticorruption nd riery mtters. More in prticulr, with reference to the ovementioned res, Lrge PIEs re required to provide detiled informtion on: the mngement nd orgniztion model dopted y them in reltion to the ctivities crried out; the policies dopted nd the gols chieved s well s relevnt non-finncil performnce indictors; nd c the min such risks cused or incurred y the usiness ctivity, the services/products provided or the existing usiness reltions, including the supply chins in plce nd the sucontrcting greements executed y the compny, if relevnt. Section 3 of the Legisltive Decree sttes, in ddition, s pplies to finncil sttements, the informtion shll e compred with previous finncil yers, including references to the items nd the mounts included in the finncil sttements, if pproprite. Furthermore, for lrge groups whose prent compny is Lrge PIE, the Non-Finncil Declrtion shll e drwn up including the informtion pertinent to the prent compny nd the susidiries in the consolidtion, to ensure understnding of the group s opertions, its performnce, results nd its impct on the mrket. Wht if the responsile entities hd or hve no policies ddressing the res mentioned in the Legisltive Decree? In this cse, they shll still e required to drft the Non-Finncil Declrtion nd sumit it to the Compnies Register, stting their option to omit the informtion nd indicting the resons in cler nd comprehensile wy. 2

4 Lstly, the forementioned rules lso pply to the entities tht compile Non-Finncil Declrtion on voluntry sis. In this cse, the voluntry Non- Finncil Declrtion shll e prepred to tke into ccount compny s dimensions, in terms of numer of employees, finncil sttements informtion, existence or non-existence of cross-order ctivities, to correctly illustrte the usiness, performnce, s well s the relted outcomes nd impct. The controls on the Non-Finncil Declrtions re crried out y Conso (the pulic uthority responsile for regulting Itlin finncil mrkets). Pursunt to Section 9 of the Legisltive Decree, Conso shll issue regultion covering, inter li, the terms nd the procedures pplicle to its controls, following its consulttion with the Bnk of Itly nd IVASS (the Itlin Institute for the Supervision of Insurnce) regrding the res under their responsiility. Relevnt corporte odies, contents nd disclosure The lw requires the Directors of Lrge PIEs nd the prent compnies of Lrge PIEs (i.e., entities tht meet the ove-mentioned requirements on consolidted sis) to compile Non-Finncil Declrtion. Sid Directors shll ensure tht the Non-Finncil Declrtion is drfted nd pulished s required y the Legisltive Decree. Similrly, specific duties re incument upon the Bord of Sttutory Auditors nd the Auditing Firm. Regrding the former, the Lw requires tht s prt of the functions ttriuted to it y the regultion, the Bord of Sttutory Auditors shll monitor oservnce of the new rules, reporting on them to the Shreholders meeting through the nnul report ccompnying the finncil sttements. Regrding the Auditing Firm, it shll: verify tht the Directors hve drfted the Non- Finncil Declrtion; nd compile specific sttement different from the report required y Section 14 of the Legisltive Decree no. 39, of 2010 ttesting to the complince of the informtion provided nd tht the reporting procedures required y the Legisltive Decree were followed. Directors shll sumit the Non-Finncil Declrtion to the ove odies together with the drft finncil sttements, so s to llow them to dischrge their relted duties. The Non-Finncil Declrtion cn e included in the mngement report, within specificlly indicted section or, lterntively, s seprte report; in this ltter cse, it shll e sumitted to the Compnies Register together with the nnul finncil sttements nd pulished on the compny's wesite. Snctions Section 8 of the Legisltive Decree provides tht Conso will levy fine upon the Directors, Bord of Sttutory Auditors nd Auditing Firm. The mount of this fine will depends on the provisions tht were reched. Directors who do not file the Non-Finncil Declrtion with the Chmer of Commerce within the dedline provided for the filing of finncil sttements, shll e suject to penlty rnging from Euro 20, to Euro 100, (suject to reduction of 1/3 if filing tkes plce thirty dys fter the dedline). This sme fine shll lso e levied if the sttement issued y the Auditing Firm is not ttched, or if the Non-Finncil Declrtion does not comply with the provisions of the Legisltive Decree (provided this does not constitute n dministrtive violtion). If the Non-Finncil Declrtion includes untrue fcts or fcts tht the Legisltive Decree hs indicted s eing suject to disclosure re omitted the pplicle fine will rnge from Euro 50, to Euro 150,

5 A fine from Euro 20, to Euro 100, is pplicle to the Bord of Sttutory Auditors if it fils to report ny non-complince of the Non- Finncil Declrtion to the Shreholders meeting. The disclosure of untruthful fcts or omission of significnt informtion shll crry fine rnging from Euro 50, to Euro 150, A fine rnging from Euro 20, to Euro 50, is pplicle to the Auditing Firm in the event of filure to verify compiltion of the Non- Finncil Declrtion, while fine rnging from Euro 20, to Euro 100, shll e pplied for omission of the specific sttement certifying the complince of the Declrtion. The legisltive reform undoutedly puts new oligtions in plce ut should lso llow the more virtuous compnies nd groups to gin short, medium nd long-term enefits from this disclosure s provided for y the Legisltor which will hve positive impct on the compny's reputtion, ensure generlly higher level of mrket pprovl while incresing the trust of foreign investors, who lwys hve n incresed interest in collecting informtion regrding the governnce of their potentil trget investments fvoring those with higher levels of risk mngement nd trnsprency. Overview The non-finncil informtion must now e included in specific declrtion to e drfted nd filed t the Compnies Register, y the Directors of the compny, together with the nnul finncil sttements (Non-Finncil Declrtion). In ddition, while the Bord of Sttutory Auditors shll monitor tht the rules provided for y Legisltive Decree hve een duly respected, the Auditing Firm shll: verify tht the Directors hve drfted the Non- Finncil Declrtion; nd compile specific sttement ttesting to the complince of the Declrtion with the lw provisions. The new oligtions pply from the finncil yers strting from Jnury 1, Any violtion of their respective oligtions will levy fine upon the Directors, Bord of Sttutory Auditors nd Auditing Firm of the lrge pulicinterest entity to n verge sum etween Euro 20,000 nd 100,000, pplied y Conso (the pulic uthority responsile for regulting Itlin finncil mrkets). Who to contct For more informtion, plese contct: Andre Lensi Orlndi Legl Prtner, Rome ndre.lensi@it.pwc.com Clr Isel Ceccrelli Legl Director, Rome clr.ceccrelli@it.pwc.com 4

6 The introduction of new corporte vehicle in the At glnce The government hs tken the innovtive step of introducing new corporte vehicle into their collection of structuring vehicles. The new vehicle, known s the Foundtion Compny, offers flexile structure with wide rnge of uses, such s n SPV in finnce trnsction, succession plnning or mechnism in privte trust compny structures. Although the Foundtion Compny will function like civil lw foundtion, it is governed y existing Cymn compny lw (Compnies Lw 2016), except s provided for in the legisltion. This mens tht Foundtion Compny will shre mny of its fetures with regulr exempted Cymn compnies; this hs the enefit of considerle ody of cse lw which cn e relied upon nd retins fmilirity to privte client nd commercil prctitioners. This simplifiction dispenses with the need for dvisors nd the industry to del with the complex nd espoke foundtions legisltion. The Foundtion Compny is nticipted to ttrct usinesses to Cymn over other offshore finncil centres nd will encourge ctivity to e conducted loclly. In detil Formtion nd constitution A Foundtion Compny is creted either y: converting current Cymn exempted compny; or creting n entirely new Foundtion Compny from scrtch. In either cse the Registrr of Compnies hs to issue declrtion tht the entity is Foundtion Compny. A Foundtion Compny is ody corporte nd hs seprte legl personlity; the compny cn hold property nd is le to sue or e sued. A Foundtion Compny s constitution consists of memorndum nd rticles of ssocition. There is Model Constitution provided in the new legisltion. The compny s oject must e lwful ut need not e eneficil to other persons (e.g. it cn e holding compny). A Foundtion Compny only hs duty to crry out its ojects if the memorndum expressly declres nd designtes person to enforce tht duty. In the event tht Foundtion Compny is oligted to crry out its ojects, the compny, trustees or personl representtives re le to pply to the Grnd Court for n opinion, dvice or directions. If the Foundtion Compny s ojects re to e crried out minly outside the, n ppliction my e mde to register the compny s n exempt compny, mening the compny is eligile for tx exemption undertking. Governnce The Foundtion Compny is mnged y ord of directors. It is importnt to note tht there re no residency requirements for person to e director. A Foundtion Compny must lso hve compny secretry ( Qulified Person, permitted or licensed under lw to provide compny mngement services in Cymn). The Qulified Person requirement is nticipted to provide usiness nd revenue to Cymn. PwC 5

7 There re strict rules on grtuitous ssets or ssets provided in considertion of shre issues. The compny secretry is required to record ctivities nd enquiries mde in reltion to the ove. Filure to comply with this oligtion is punishle y criminl snction. If the constitution provides, ny memer or supervisor is le to mke or consent to ltertions to the memorndum. Governnce roles such s duties, rights nd powers cn fulfilled y memers, directors, officers, supervisors, founders or others, provided this is permitted in the constitution. This freedom illustrtes the flexiility of this new corporte vehicle. Under Cymn compny lw, registers must e mintined contining detils of directors, memers nd chrges. A Foundtion Compny is lso required to keep register of supervisors. Filure to comply with this requirement results in criminl snction. Records re lso required to e kept for nti-money lundering purposes nd minute ook is to e kept. Note tht on the written request of n interested person the directors of the Foundtion Compny must provide informtion, explntions, ccounts nd records in reltion to the compny s ffirs. Distinguishing fetures A Foundtion Compny must e limited y shres or gurntee, however it is not necessry tht there is shre cpitl. A Foundtion Compny is not required to hve shreholders nd eneficiries nd lck thereof will not ffect the compny s existence, cpcity or powers provided tht the compny continues to hve one or more supervisors. Supervisors re persons other thn memers empowered y the constitution to ttend nd vote t generl meetings. Notly, Foundtion Compny tht ceses to hve memers will not e le to lter dmit memers or issue shres, unless this is stipulted in its constitution. A eneficiry to Foundtion Compny does not hve sttutory powers or rights in reltion to the Foundtion Compny which includes those relting to its mngement or ssets. A eneficiry is not treted s n interested person. However, eneficiries cn e given duties, powers or rights if this is provided for in the constitution. - Importntly, the pyment of dividends or other distriutions of profits or ssets to memers is prohiited nd this is to e stted in the Foundtion Compny s memorndum. The Legisltion The Foundtion Compnies Bill 2016 ws pssed y Legisltive Assemly on Mondy 27th Mrch. The legisltion will come into force within the following weeks. Who to contct For more informtion, plese contct: Richrd Edmundson Prtner nd Hed of Interntionl Business Reorgnistions, London +44 (0) richrd.j.edmundson@pwc.com Cynthi Chn Director, London +44 (0) cynthi.chn@pwc.com PwC 6

8 At glnce Switzerlnd introduced new legl frmework, the so clled, which ecme effective in Jnury The regultes the use of terms such s Switzerlnd or Swiss, s well s the use of the Swiss cross* nd the Swiss cot of rms** in connection with goods nd services. * The Swiss cross: ** The Swiss cot of rms: In prticulr, the new regultion ddresses the following topics: c the use of indictions of origin for products nd services; the registrtion nd the use of geogrphicl trdemrks; nd the use of the Swiss cross nd the Swiss cot of rms on products nd pckge. Compnies ffected y the should exmine their complince with the new regultion nd tke ction if required. In detil Introduction According to the Swiss Federl Institute of Intellectul Property, mrket studies show tht consumers re prepred to py premium of up to 20% for typicl Swiss products nd nturl products nd up to 50% for luxury goods lelled Swiss, Swiss Mde, Mde in Switzerlnd nd the like. Studies conducted y Swiss universities show tht more thn 60% of the interviewees would py more thn twice the price for comestiles produced in Switzerlnd. These figures show tht indictions of origin on products nd for services hve ecome oth sles rgument for vendors nd key fctor in the decision mking process of consumers, prticulrly in n incresingly glolized world. To prevent use nd dilution of Switzerlnd s rnd vlue nd reputtion, lwmkers hve introduced the so clled, which is designed to prevent free riders from tking dvntge of consumer s willingness to py for Swissness. It entils revision of the Federl Trde Mrk Protection Act (TmPA), the Cot of Arms Protection Act (CAPA) nd severl ordinnces. The im of this rticle is to provide n overview of the most importnt legisltive mendments, which hve entered into effect on 1 Jnury Indiction of Origin 1.1 Legl Requirements The introduced set of rules regrding indiction of origin. The pplicle rules depend on the nture of goods. Industril Products Industril products re deemed to origin from the plce where 60% of its production costs, including costs for mnufcturing, reserch nd development nd qulity control incur. Moreover, the production stge which determines the min chrcteristics of product must occur t this plce. However, n indiction of origin my e limited to single production stge or ctivity, e.g. Engineered in Switzerlnd or Swiss Reserch if the respective ctivity is crried out in its entirety t the specified loction. Comestiles For nturl products, the plce of hrvest, extrction or, with regrd to met nd fish, the plce where n niml hs spent the predominnt prt of its life, the plce where nimls were kept or rered or the plce where the hunting or fishing ws crried out, my e indicted s plce of origin. PwC 7

9 In the cse of processed food, t lest 80% of the weight of the rw mterils used must originte from the plce referred to s origin nd the processing stge tht gives the product its essentil chrcteristics (e.g. turning milk into cheese) must e crried out there. However, there re numer of exceptions in plce regrding the origin of rw mterils. For milk nd diry products, 100% of the rw mteril must come from the plce of origin. On the other hnd, rw mterils which cnnot e produced in Switzerlnd due to nturl conditions or which re not ville in sufficient quntities (e.g. coco) re only prtilly or not t ll tken into ccount for the clcultion of the weight of rw mterils requirements. c Services In order to e llowed to use n indiction of origin for services, the service provider needs to e hedqurtered nd dministered in the plce referred to. Mere domicile compnies will not e sufficient to fulfil this requirement. 1.2 Use of Indictions of Origin If these requirements re met, the use of the Swiss rnd is open free of chrge nd without registrtion or permission y the uthorities. However, the indiction of origin must not e misleding nd dditionl requirements such s complince with mnufcturing or processing principles or qulity requirements tht re customry or prescried in the plce of origin must e dhered to. If chllenged, the user of n indiction of origin hs the urden of proof tht the indiction is correct. 2. Registrtion of Geogrphicl Trdemrks The lso provides for the registrtion of indictions of source s so-clled geogrphicl trdemrks, such s Emmentler for cheese or Genève for wtches. Registrtions my e requested y ssocitions tht hve ssumed the role of protecting the respective designtion of origin or, under certin conditions, y Swiss cntons, foreign uthorities or orgnistions of n economic sector. The pplicnt must file regultions governing the use of the geogrphicl trdemrk with the Swiss Federl Institute of Intellectul Property. Once registered, ny person fulfilling the requirements of the regultions my use the geogrphicl trdemrk free of chrge. Bsed on the Swiss registrtion, pplicnts my seek interntionl protection for the trdemrk through the Mdrid System. 3. Use of the Swiss Cross nd Cot of Arms Current lw techniclly prohiits the plcement of the Swiss cross or cot of rms on products or pckge for usiness purposes. However, this prohiition is currently not enforced s countless products lelled with the Swiss cross cn e found in relity. Therefore, the revised Federl Cot of Arms Protection Act now llows usge of the Swiss cross s declrtion of origin not only for services, which is lredy llowed s of tody, ut lso for goods. Of course, the legl requirements regrding indictions of origin s lid out ove hve to e met. The use of the Swiss cot of rms remins reserved for the Swiss Confedertion. Conclusion The estlishes detiled requirements for indictions of origin nd significntly simplifies the protection of geogrphicl trdemrks, prticulrly rod. Regultion regrding the use of the Swiss cross on products nd pckge hs een dpted to current prctice. Compnies currently using indictions of origin or trdemrks relting to Switzerlnd or mrking their products or pckge with the Swiss cross should exmine their complince with the nd tke ction if required. Who to contct For more informtion, plese contct: Gem Olivr-Pscul Prtner, Hed Legl Prctice Switzerlnd, Zurich, Switzerlnd gem.olivr.pscul@ch.pwc.com Luks Bühlmnn Senior Mnger, St. Gllen, Switzerlnd luks.uehlmnn@ch.pwc.com PwC 8

10 This puliction hs een prepred for generl guidnce on mtters of interest only, nd does not constitute professionl dvice. You should not ct upon the informtion contined in this puliction without otining specific professionl dvice. No representtion or wrrnty (express or implied) is given s to the ccurcy or completeness of the informtion contined in this puliction nd, to the extent permitted y lw, PwC does not ccept or ssume ny liility, responsiility or duty of cre for ny consequences of you or nyone else cting, or refrining to ct, in relince on the informtion contined in this puliction or for ny decision sed on it PwC. All rights reserved. PwC refers to the PricewterhouseCoopers glol network nd/or one or more of its memer firms, ech of which is seprte legl entity. Plese see for further detils.