On 14 December 2021, some new provisions of corporate law, provided for by Legislative Decree no. 183 of 8 November 2021, published in the Italian Official Gazette no. 284 on 29 November 2021, came into force.
Legislative Decree no. 183/2021, which implements Directive (EU) 2019/1151 of the European Parliament and of the Council of 20 June 2019, amending Directive (EU) 2017/1132, affects four areas of corporate law, by introducing:
- new remote procedures of incorporation for limited liability companies (società a responsabilità limitata);
- new requirements for the appointment of directors (e., prior declaration of absence of grounds for ineligibility);
- new rules regarding the publicity of branches established within the European Union; and
- new rules on the publicity and exchange of corporate documents and information between companies registers.
Some of the most relevant regulatory changes are briefly outlined herebelow.
Online incorporation of limited liability companies
Pursuant to article 2 of Legislative Decree no. 183/2021 it is now possible to incorporate limited liability companies (società a responsabilità limitata) and simplified limited liability companies (società a responsabilità limitata semplificata), by means of a public electronic deed received by an Italian notary public with all (or some of) the parties attending thereto by videoconference, provided that the company under incorporation has its registered office in Italy and its corporate capital paid up in cash.
The online incorporation of the company will be made through an electronic platform managed by the National Council of Notaries by means of which it will be possible to verify the identity and will of the attendees and will ascertain the digital or qualified electronic signature of the signatories.
The public electronic deed received by the Italian public notary may be formed by using uniform models (available also in English language) adopted by the Italian Ministry of Economic Development, which will be available on the website of each local chamber of commerce. By using such uniform models, the parties shall be granted with a 50% discount on the notarial fees (determined in accordance with Ministerial Decree no. 140/2012).
Grounds for ineligibility of directors
Article 2382 of the Italian civil code provides for the grounds for ineligibility or forfeiture of the appointment of directors of Italian joint stock companies (società per azioni), stipulating that a person who is disqualified, disabled, bankrupt, or who has been condemned to a penalty that entails the disqualification, even temporary, from public offices or the inability to exercise executive offices, cannot be appointed as a director and, if appointed, will lapse his/her office.
The abovesaid grounds for ineligibility have been expressly extended to directors of limited liability companies (società a responsabilità limitata) by article 6 of Legislative Decree no. 183/2021, which amends to that effect article 2475 of the Italian civil code.
Furthermore, the aforementioned article 6 provides that, the person to be appointed as director, before his/her appointment, shall issue a declaration to the company stating that there are no grounds for ineligibility against him/her under article 2382 of the Italian civil code or grounds for ineligibility under the laws of any EU Member State.
This declaration, which is a requirement for the regularity of the appointment of the director, shall be issued both upon the company’s incorporation (upon the first appointment of directors) and upon subsequent replacements of any director.
The rule under discussion does not expressly require the declaration to be in written form, however, such form certainly seems preferable, also for probative purposes. The receipt of the declaration may also be acknowledged in the minutes of the shareholders’ meeting appointing the directors.
Registration in Italy of EU branches
Article 6, para. 3, of Legislative Decree no. 183/2021 introduces the new article 2508-bis in the Italian civil code, regulating the registration in Italy of branches of companies governed by the laws of another EU Member State.
In particular, the new article provides, inter alia, for the obligation to file with an Italian public notary the deed establishing branches within the EU and the deeds appointing the persons permanently representing the company for the activities of the EU branches, for the purpose of the relevant registration with the competent Italian companies register.
If the deeds and documents to be filed with the Italian public notary are in a foreign language they must be accompanied by an Italian sworn translation.
Digitisation and interconnection of registers
As regards publicity in companies registers, article 3 of Legislative Decree no. 183/2021 specifies that the publicity of companies’ data and documents is regulated by computerised means in accordance with the provisions of Presidential Decree no. 581/1995.
Documents and data concerning companies must be stored in digitised form in open format or as structured data.
In addition, Legislative Decree no. 183/2021 provides for the exchange of information (e.g. on the existence of grounds for ineligibility of directors, on the registration or cancellation of branches, etc.) between the companies and business registers of the various EU Member States, through a system of interconnection between business registers (BRIS). This system will allow the consultation free of charges of corporate documents and data made available by business registers at EU level.
However, it should be noted that the obligation to exchange information on the existence of grounds for ineligibility of directors, provided by article 7 of Legislative Decree no. 183/2021, will come into force as of 1 August 2023.