Prepared by Andrea Lensi Orlandi, Flavia Caltagirone and Mario Di Pietro
The use of digital tools and processes in company law is being expanded. The draft of the Legislative Decree transposing the Directive EU 2019/1151, which amends the Directive EU 2017/1132 – also proving for equivalent protection standards of the interests of shareholders and third parties in capital companies, for example in relation to incorporation and disclosure requirements as well as cross-border mergers and demergers – is now under review by the parliamentary committees.
By means of the issuance of this Legislative Decree, provisions of the Italian Civil Code for limited liability companies (“Società a responsabilità limitata” or “S.r.l.”) and simplified limited liability companies (“Società a responsabilità limitata semplificata” or “S.r.l.s.”) will be substantially amended as for procedures for their incorporation and registration; besides, interconnection of Member states’ Companies Registers will be provided for the purpose of creating a single and competitive internal market which can adopt fully online procedures for the incorporation of newCos or the registration of branches, reducing the related costs, timing and administrative burdens concerning such processes.
Indeed, the incorporation of S.r.l. and S.r.l.s. may occur online and stipulated by means of Notaries’ public deeds executed through a platform allowing the signing of the deed in videoconference, without the necessity for parties to appear in person before the competent authority as per local laws.
The already-existing telematic platform managed by the National Council of Notaries will be implemented, thus allowing the identity verification of the video participants, the ascertainment of the signature certificates and the perception of what happens to those connected by videoconference when they express their will.
Such platform shall also ensure a “significant” level of security, so that signatures may be put by means of digital signature or qualified electronic signature.
Moreover, the payment of the corporate capital may be carried out by means of e-payment services to a current account of any bank operating in the EU.
The transposing Legislative Decree will also provide for the possibility that deeds of incorporation and by-laws that Notaries shall receive for set-up purposes could be prepared through the use of standard models, adopted by means of a Ministry of Economic Development Decree, drawn up also in English and available on the official website of the Chambers of Commerce.
Another keystone of the reform to foster the constant corporate information flows shall be represented by the interconnection of Member states’ Companies Registers.
In this regard, it will be implemented the already-existing Business Registers Interconnection System (BRIS) (*), a unique European platform for interconnection of national companies registers in relation to which Member states shall ensure the interoperability, the gratuitousness of the consultation of the available information and that will be particularly relevant with regard to the establishment or striking off of subsidiaries and branches.
More in details, the draft Decree provides that registration and strike off in the Companies Register of a Member states of a limited liability company’s branch office shall be communicated without delay – through BRIS – by the same register to that one of the member State in which the parent company is registered.
The BRIS will also contain information on cross-border transactions.
As for the timeline and procedures for the implementation of the delegation, the deadline for its exercise is set on November 8, 2021. Lastly – being the postponement of the entry into force on August 1, 2023 already provided – it shall only be mentioned that amendments to Sections 2475 and 2383 of the Italian Civil Code shall occur: in particular, same causes of ineligibility and disqualifications of joint stock companies’ (“Società per Azioni” or “S.p.A.”) directors shall apply to limited liability companies’ directors.
Starting from June 8, 2017, Member states should have already adopted measures necessary to ensure that the disclosure obligation for limited liability companies would concern – at least – the following documents and information:
- incorporation deeds and By-laws, if the latter is a separate deed, and any amendments thereof;
- indication of those having the power to undertake the company vis-à-vis third parties, to represent it in legal proceedings and/or are involved in the BoDs, Supervisory Bodies and Board of Statutory Auditors;
- financial documents for each FY;
- any transfer of the registered office;
- dissolution of the company;
- declaration of nullity;
- appointment of liquidators;
- end of winding up and striking off the company from the business register.
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PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti