The Ministry of Labor ruled on the following question: can a Third Sector Entity, pursuant to article 26 of the Code, have a monocratic administrative body or does this body necessarily have to have collegial composition?
There are two doctrinal positions on the point: the first according to which, in the absence of specific provisions, the monocratic configuration can be considered admissible; the second, on the other hand, based on the expressions used by the legislator and by the favor partecipationis at the base of the Code, hypothesizes the need for a plural composition of the administrative body.
Among the proponents of the possibility of monocratic configuration are also those who, in consideration of the general reference made by the Third sector Code to the provisions of the civil code "insofar as they are compatible" (art. 3 paragraph 2) as well as the specific reference to precise rules set by the civil code in corporate matters deem possible an analogical application of the rules on companies, in particular, in the present case, those that allow one-man administration to be opted for as an alternative to that of the collegiate type.
However, this reconstruction is criticized by the Ministry with the following argument that can be shared: the reference to precise provisions of the company regulations, on matters of conflict of interest, directors' liability, causes of ineligibility and forfeiture of the same, precisely because of its specificity and limited, it seems aimed at outlining a precise framework of guarantees rather than at allowing a general applicability to Third sector entities of corporate-type organizational models.
For the supporters of the second orientation, in the regulation of the bodies found in the Code, the legislator has expressly provided for the entity to have the right to decide between a monocratic or collegial supervisory body only in the rules governing the supervisory body.
The answer to the Ministry's question, adopted with Note no. 9313 of last September 16, takes into account, in addition to the aforementioned considerations, also the fact that the Code provides for multiple types of entities that represent the proposal of organizational models that design different structures and relationships between the bodies of the entity capable of guaranteeing the better achievement of institutional goals.
However, the reference to the principle of the autonomy of the ETS, particularly the organizational one, does not justify the thesis of those who argue, in absolute terms, that the appointment of a sole director can always be considered permitted "in the absence of a provision that obliges the necessary collegiality of the organ". In fact, this autonomy must be understood as functional to the identification of organizational arrangements consistent with the purposes and characteristics of the entity.
On the contrary, the use in article 26 of the term "administrators" in the plural, the lack of provision in the case of an administrative body of the express possibility of a monocratic constitution of the body unlike what is provided for in the case of the control body , as well as above all the provisions of paragraphs 2, 4 and 5 lead us to believe that the legislator has hypothesized a collegial composition of the body.
However, it is necessary to remember that pursuant to paragraph 1 and the specific collocation of the article, the latter is applicable not to all ETS but to Third sector associations and, with some limitations, to Third sector foundations. Specifically, by express provision of paragraph 8, paragraphs 3, 6 and 7 apply to the latter, which are also considered compatible with a monocratic composition of the administrative body.
Consequently, the different nature of the administrative body and of the relationships with the other bodies and with the outside world in the two types of entity could suggest, under a systematic profile even more than as a result of the textual reading of the regulations, the preferability of a composition collegial nature of the administrative body in the case of associations and, on the other hand, the possibility of a monocratic administration in foundations, without prejudice to the obligation of the punctual identification by the statute of the characteristics of the body.
In this context, in terms of extreme residuality, the different hypothesis can be configured in which, in the case of associations in the constitution phase, it is possible to identify a temporary monocratic administrative body in the deed of incorporation with the reference to an integration election of the body itself within a certain period.
Even in the case of civilly recognized religious entities, the regulation governing the performance of activities for the purposes of registration in the Single National Register of the Third Sector may provide that the administration is entrusted to a monocratic body. In fact, in this case the application of the Code concerns only the performance of the activities referred to in Article 5 of the Code, so as to safeguard compliance with the structure and purpose of these entities, on the basis of agreements between the Italian legal system and other legal systems in which these entities operate.
