Third sector: statutory adjustments for ONLUS, ODV and APS
Article 101, paragraph 2, of the Third Sector Code referred to Legislative Decree no. 117 of 2017, provides that entities registered in the ONLUS Registers, Voluntary Organizations and Social Promotion Associations “shall comply with the mandatory provisions (of the Code) within twenty-four months from the date of its entry into force”, being able “within the same period to amend their articles of association with the procedures and majorities provided for the resolutions of the ordinary general assembly in order to adapt them to the new mandatory provisions or to introduce clauses that exclude the application of new provisions derogable by means of a specific clause in articles of association”. The regulation also goes on to state that “until the operation of the Single National Register of the Third Sector (“RUNTS“), the rules previously in force continue to apply for the purposes and for the effects deriving from the registration of entities in the ONLUS, ODV and APS registers”.
The above provision attributes to ONLUS, ODV and APS registered in the Registers
– the duty to comply, through statutory adaptation, with the new regulatory framework (this duty represents the expression through which the entity expresses its free choice to remain within the Third Sector), and at the same time
– the right to use, by 3 August 2019, the “simplified” regime, i.e. the regime of modalities and majorities provided for the resolutions of the ordinary general assembly, for the amendments to the articles of association, for the date of 3 August 2019.
The Code does not clarify whether the failure to adapt the Articles of Association by August 3, 2019 may result in the loss of registration with the aforementioned Registers and, consequently, the possibility of benefiting from the effects deriving from them.
The Ministry of Labour and Social Policies intervened to resolve this doubt with Circular no. 13 of 31.05.2019, which provides two different answers with regard to ODV and APS, on the one hand, and ONLUS, on the other.
For the first ones, a mechanism is envisaged for the communication to RUNTS of the relative data contained in the aforementioned Registers. During the control process, they continue to be considered ODV and APS. If the control procedure should lead to the need for further amendments to the articles of association, they can be adopted after 3 August 2019, but at this point no longer benefit from the “lightened” procedures.
For ONLUS, however, Article 102, paragraph 2, letter a) of the Code provides for the repeal of the provisions contained in Articles 10 to 29 of Legislative Decree no. 460 of 1997 from the tax period following the authorisation of the European Commission on tax provisions and in any case not before the tax period following the operation of RUNTS, with the consequence that the rules of ONLUS remain in force until the new tax provisions are applied.
In conclusion, ONLUS, ODV and APS that intend to belong to the third sector should make the statutory amendments provided for by the Code and only if the amendments are made by 3 August 2019, will they be able to benefit from the “simplified” regime (procedures and majorities provided for resolutions of the ordinary general assembly).