Il statutory auditor of the financial statements of a listed company forfeits his office - and therefore has no right to compensation - if he does not comply with i independence requirements required by law (art. 10 del legislative decree no. 39/2010). These also include the so-called apparent independenceprinciple according to which the auditor must not only be independent, but also appear to be independent. The Cassation established it with an order of 2019, the no. 14919 of 31 May. In the case in question, the judges declared null and void the appointment of an auditor who had professional relationships with a member of the board of statutory auditors of the company from which he had been appointed.
In essence, setting the criterion ofapparent independence, the judges ruled that to evaluate the adequacy of an auditor, the relevance of his business relations with the audited company does not count. The mere existence of a connection, however marginal, compromises the auditor's image in terms of independence and is therefore sufficient to cancel the appointment.
In this way the Cassation overcomes the Recommendation of the European Commission of 16 May 2002, which instead emphasized the revenue thresholds that an auditor receives from a client. On the other hand, like the judges, the European and Italian legislative texts never mention the significance of the relationship with the audited company among the criteria on which to base an assessment of the independence of an auditor.
However, this approach is partly criticized by Assonime, the association of Italian joint-stock companies. “Having accepted by the legislator the principle ofapparent independence involves a criterion of judgment on independence which ignores the circumstance that independence of judgment is concretely compromised and relies on a model based on the existence of objective circumstances on the basis of which a third party could question the ability of an objective judgment - writes Assonime – This though it does not seem in itself to imply that the significance of the relationship cannot take on significance. In fact, nothing excludes that the judgment model of the third party may be in the sense of not compromising independence in consideration of the non-significance of the relationship”.
In other words: an external observer could judge the independent auditor even if he has relations with the audited company, provided that these are irrelevant. “In confirmation of this approach – continues Assonime – the same art. 10 of Legislative Decree lgs. no. 39/2010 provides that the judgment of the third party must also take into consideration the measures adopted. Since the rule does not limit the type of measures, they could be both measures aimed at excluding the risk of carrying out the assignment in an objective way, and mitigating measures aimed at managing the risk in the sense of making it insignificant".
